[Federal Register: August 19, 2003 (Volume 68, Number 160)]
[Proposed Rules]               
[Page 49737-49756]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19au03-26]                         

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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 385, 390, and 397

[Docket No. FMCSA-97-2180; formerly FHWA-97-2180]
RIN 2126-AA07

 
Federal Motor Carrier Safety Regulations: Hazardous Materials 
Safety Permits

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

ACTION: Supplemental Notice of Proposed Rulemaking (SNPRM).

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SUMMARY: The FMCSA proposes to establish a safety permit program for 
motor carriers that transport any of the following hazardous materials 
in interstate or intrastate commerce: a highway route-controlled 
quantity of a Class 7 (radioactive) material; more than 25 kg (55 
pounds) of a Division 1.1, 1.2, or 1.3 (explosive) material; more than 
one liter (1.08 quarts) per package of a material in Division 2.3, 
Packing Group I, Hazard Zone A, or Division 6.1, Packing Group I, 
Hazard Zone A; and a shipment of compressed or refrigerated liquid 
methane or natural gas in a packaging having a capacity equal to or 
greater than 13,248 L (3,500 gallons) for liquids or gases. As part of 
this safety permit program, FMCSA proposes to consider additional 
``acute'' and ``critical'' regulations relevant to its determination of 
a carrier's safety fitness rating and, accordingly, the issuance of a 
safety permit.
    This rulemaking would implement requirements in Federal hazardous 
material transportation law that DOT must establish a safety permit 
program and a motor carrier must hold a safety permit in order to 
transport certain hazardous materials in commerce. This rulemaking 
would also carry out a statutory provision to issue regulations 
requiring a pre-trip inspection and certification of a motor vehicle 
used to transport a highway route controlled quantity of a Class 7 
(radioactive) material.
    This rulemaking would also announce the agency's decision to not 
prescribe a uniform permitting system for intrastate transportation of 
hazardous materials, as proposed in the 1993 notice of proposed 
rulemaking to this action. Specifically, FMCSA would not require States 
that issue permits for the intrastate transportation of hazardous 
materials to use uniform forms and procedures, or to require each State 
to register all persons who transport hazardous materials--or cause 
hazardous materials to be transported--intrastate by motor vehicle. 
FMCSA believes that it is not possible to devise a uniform system that 
would satisfactorily anticipate, address and resolve the myriad of 
permitting challenges and concerns that are unique to individual 
States.
    This proposed rule, if promulgated, will promote the safe and 
secure transportation of the designated hazardous materials and enhance 
motor carrier safety.

DATES: Comments must be received on or before October 20, 2003.

ADDRESSES: You can mail, fax, hand deliver or electronically submit 
written comments to the Dockets Management Facility, United States 
Department of Transportation, Dockets Management Facility, Room PL-401, 
400 Seventh Street, SW., Washington, DC 20590-0001, FAX (202) 493-2251, 
on-line at 
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dmses.dot.gov/submit. 
You must include the docket number that appears in the heading of this document in your comments. 
You can examine and copy all comments at the above address from 9 a.m. 
to 5 p.m., e.t., Monday through Friday, except Federal holidays. You 
can also view all comments or download an electronic copy of this 
document from the DOT Docket Management System (DMS) at 
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/search.htm
 by typing the last four digits of the docket 
number appearing in the heading of this document. The DMS is available 
24 hours each day, 365 days each year. You can get electronic 
submission and retrieval help and guidelines under the ``help'' section 
of the Web site. If you want us to notify you that we received your 
comments, please include a self-addressed, stamped envelope or postcard 
or print the acknowledgement page that appears after submitting 
comments on-line.
    Comments received after the closing date will be included in the 
docket, and FMCSA will consider late-filed comments to the extent 
practicable. 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.

FOR FURTHER INFORMATION CONTACT: Mr. James Simmons, (202) 493-0496, 
Hazardous Materials Division, Federal Motor Carrier Safety 
Administration, U.S. Department of Transportation, 400 7th Street, SW., 
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 
p.m., EST, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Statutory Background

    Federal hazardous material transportation law, 49 U.S.C. 5101 et 
seq., was enacted ``to provide adequate protection against the risks to 
life and property inherent in the transportation of hazardous material 
in commerce * * *''. Certain provisions of this law, including sections 
5105(e), 5109, and 5119, apply only to the transportation of hazardous 
material by motor vehicle. The authority for implementing these 
provisions (except section 5109(f)) has been delegated to FMCSA under 
49 CFR 1.73(d)(2)). (This authority was transferred from the Federal 
Highway Administration (FHWA) to a separate Office of Motor Carrier 
Safety, 64 FR 56270 (Oct. 19, 1999), which became FMCSA on January 1, 
2000. See 64 FR 72959 (Dec. 29, 1999), and 65 FR 220 (Jan. 4, 2000)).

[[Page 49738]]

    Section 5105(e) provides that DOT ``shall require by regulation 
that before each use of a motor vehicle to transport a highway-route-
controlled quantity of radioactive material in commerce, the vehicle 
shall be inspected and certified as complying with this chapter and 
applicable United States motor carrier safety laws and regulations.'' 
This section also provides that DOT ``may require that the inspection 
be carried out by an authorized United States Government inspector or 
according to appropriate State procedures.'' The definition of a 
``highway route controlled quantity'' of a Class 7 (radioactive) 
material is set forth at 49 CFR 173.403, in terms of the activity level 
of the radioactive material in a single package. In general, this is a 
quantity that emits high levels of radioactivity and, accordingly, the 
packaging, hazard communication, and operating requirements that apply 
to a shipment of a highway route controlled quantity of a Class 7 
material are intended to both adequately identify the presence of this 
material and ensure that the packaging will withstand normal 
transportation conditions and foreseeable accidents, without a breach 
of containment integrity.
    Section 5109 requires DOT to issue regulations for safety permits 
for transporting certain hazardous materials. A motor carrier must hold 
a safety permit issued by DOT, and keep a copy of the permit or other 
proof of its existence in the vehicle, in order to transport certain 
hazardous materials in commerce or cause such materials to be 
transported in commerce by motor vehicle. 49 U.S.C. 5109(a). A person 
may not offer such hazardous materials for motor vehicle transportation 
in commerce unless the motor carrier has a safety permit. 49 U.S.C. 
5109(f).
    Under section 5109(b), a safety permit is required for the 
following four hazardous materials, above threshold amounts established 
by DOT, but DOT may also prescribe additional hazardous materials, and 
the amount of each, to be subject to the safety permit requirement:
    1. A Class A or B explosive (now Division 1.1, 1.2, or 1.3 
explosive);
    2. Liquefied natural gas;
    3. Hazardous material designated as extremely toxic by inhalation; 
and
    4. A highway route controlled quantity of radioactive material.
    Other provisions in section 5109 require DOT to issue regulations 
for issuing safety permits, including application procedures; the 
duration, term, and limitations of a safety permit; other conditions 
needed to protect public safety; and procedures to amend, suspend, or 
revoke a safety permit. In order to issue a safety permit, DOT must 
find that the motor carrier is fit, willing, and able to (1) Provide 
the transportation to be authorized by the safety permit; (2) comply 
with Federal hazardous material transportation law and DOT's 
regulations under that law; and (3) comply with applicable Federal 
motor carrier safety laws and applicable minimum financial 
responsibility laws and regulations. 49 U.S.C. 5109(a).
    Section 5119 directed DOT to establish a working group of State and 
local government officials to make recommendations to DOT with respect 
to uniform forms and procedures for a State ``to register persons that 
transport or cause to be transported hazardous material by motor 
vehicle in the State'' and ``to allow the transportation of hazardous 
material in the State,'' including ``whether to limit the filing of any 
State registration and permit forms and collection of filing fees to 
the State in which the person resides or has its principal place of 
business.'' After receiving a final report from the working group, DOT 
``shall prescribe regulations to carry out the recommendations 
contained in the [final] report * * * with which the Secretary 
agrees.''

Prior Proceedings

    On June 17, 1993, the Federal Highway Administration (FHWA) 
published in the Federal Register a notice of proposed rulemaking to 
establish a safety permit program covering the four hazardous materials 
specified in 49 U.S.C. 5109(b), including the requirement for a pre-
trip inspection of a motor vehicle to be used to transport a highway 
route controlled quantity of Class 7 (radioactive) material. 58 FR 
33418. In response to that notice, FHWA received more than 50 written 
comments, and these comments have been considered in the preparation of 
this SNPRM, as discussed below.
    On November 17, 1993, the Alliance for Uniform HazMat 
Transportation Procedures (Alliance), established under 49 U.S.C. 5119, 
transmitted its recommendations to DOT, and it submitted its final 
report to DOT on March 15, 1996. According to the Alliance, ``[a]ll but 
nine states have some type of permitting and/or registration program 
for hazardous materials transportation.'' November 17, 1993 Report, p. 
2-7. The Alliance recommended that DOT:
    1. Explore options for consolidating State registration programs 
with the Federal registration program (applicable to shippers and 
carriers by all modes and administered by DOT's Research and Special 
Programs Administration (RSPA), under 49 U.S.C. 5108);
    2. Consider waiving the Federal requirement for a safety permit for 
a motor carrier that obtains a permit under a uniform State permit 
program; and
    3. Promote a one-stop repository for up-to-date information on 
hazardous materials routing designations.
    In its final report, the Alliance described a two-year pilot 
project carried out in four States (Minnesota, Nevada, Ohio, and West 
Virginia) of a ``base-state'' system for registration and collection of 
fees and reciprocity between States that require permits.
    FHWA decided not to proceed with further rulemaking action to 
implement the requirements in 49 U.S.C. 5109 and 5105(e) until it had 
considered the final report and recommendations of the Alliance. In its 
July 9, 1996 notice published in the Federal Register (61 FR 36016), 
FHWA (1) summarized the Federal permit and registration requirements in 
the Federal hazardous material transportation law, (2) discussed the 
activities and recommendations of the Alliance, and (3) invited 
comments on the Alliance's final report and recommendations. In a 
supplemental notice published in the Federal Register on March 31, 1998 
(63 FR 15362), FHWA discussed the comments received in response to its 
July 9, 1996 notice and directed a series of additional questions to 
State agencies and motor carriers. Only 11 States responded to the 
notice, and they did not reach a clear consensus on the direction FHWA 
should take. State designations and restrictions of highway routes for 
transporting hazardous materials have been published in the Federal 
Register on June 9, 1998 (63 FR 31549), and Dec. 4, 2000 (65 FR 75771), 
and are maintained on FMCSA's Internet Web site at http://hazmat.fmcsa.dot.gov
.
    DOT has asked Congress to amend or repeal 49 U.S.C. 5109 three 
times since 1997, because ``many States have different permit 
requirements'' for carriers of hazardous materials and because the 
agency believed it had appropriate safety monitoring systems in place 
to address unsafe carriers transporting these materials. In addition, 
the pilot project under 49 U.S.C. 5119 revealed that a uniform permit 
system will not likely resolve different States' concerns that their 
needs will be met, and raises additional concerns related to 
unnecessary preemption and expenses of a parallel Federal permitting 
system. In place of a Federal safety permit, DOT proposed that it 
should be authorized to continue

[[Page 49739]]

its safety monitoring of carriers transporting hazardous materials and 
consider alternative means of enhancing safety in motor carrier 
transportation of hazardous materials, by such means as additional 
monitoring of the safety performance of carriers and performing a 
safety review of ``new entrants'' within 18 months of the date when the 
carrier begins operations. (On May 13, 2002, FMCSA published an interim 
final rule in the Federal Register establishing minimum requirements 
for new entrant motor carriers. The rulemaking seeks to ensure that 
they are knowledgeable about the applicable Federal regulations and 
advises that FMCSA will conduct a safety audit as soon as the new 
entrant has been in operation for enough time (generally, at least 
three months) to have sufficient records to evaluate the carrier's 
basic safety management controls. 67 FR 31978.)

The SNPRM

    Congress has not eliminated the statutory requirement for a Federal 
safety permit. Accordingly, the FMCSA is issuing a revised proposal in 
this SNPRM. The FMCSA invites all interested persons to comment on this 
revised proposal and hopes to issue a final rule that will phase in the 
requirement for a safety permit over the 2005-2006 time period as motor 
carriers submit or update their Motor Carrier Identification Report 
(Form MCS-150) (according to the schedule set forth in 49 CFR 
390.19(a)).

Hazardous Materials for Which a Safety Permit Would Be Required

    In the 1993 NPRM, FHWA proposed that a motor carrier would be 
required to hold a safety permit in order to transport in commerce any 
of the four hazardous materials specified in 49 U.S.C. 5109(b), in the 
same threshold quantities for which the carrier must submit a 
registration statement and pay a registration fee under 49 U.S.C. 
5108(a)(1)(A)-(D):
    1. A highway route-controlled quantity of a Class 7 (radioactive) 
material;
    2. more than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 
(explosive) material;
    3. more than one liter (1.08 quarts) per package of a poisonous-by-
inhalation (PIH) material in Division 2.3, Packing Group I, Hazard Zone 
A, or Division 6.1, Packing Group I, Hazard Zone A; and
    4. a shipment of compressed or refrigerated liquid methane or 
natural gas in bulk packaging having a capacity equal to or greater 
than 13,248 L (3,500 gallons) for liquids or gases.
    Accordingly, the motor carriers required to hold a safety permit 
would be a subset of the carriers required to register and pay a 
registration fee, and no carrier that did not have to register would be 
required to hold a safety permit. In this SNPRM, FMCSA is proposing the 
same scope of the safety permit requirement, with the following 
modifications from the proposals in the NPRM:

--For motor carriers already transporting these materials in interstate 
or intrastate commerce, there would be a two-year phase-in period to 
obtain a safety permit based on the schedule in 49 CFR 390.19(a) for 
submitting or updating the Motor Carrier Identification Report (Form 
MCS-150). Also, there would not be a separate three-year phase-in 
period for motor carriers who transport explosives, based on the amount 
of explosives transported in a single shipment, as proposed in the 1993 
NPRM.
--Liquefied natural gas would include all liquefied gases having a 
methane content of at least 85%.

    In response to the 1993 NPRM, several commenters supported limiting 
the scope of the safety permit requirement to the materials specified 
in the statute. The Edison Electric Institute (EEI) stated that the 
requirement to hold a safety permit should not be extended to 
additional classes and quantities of hazardous materials ``unless and 
until DOT gathers substantial evidence that such extension would 
significantly enhance transportation safety,'' based on its view that 
this requirement ``would impose additional administrative burdens on 
affected motor carriers and on FHWA.'' EEI quoted the statement from 
DOT's comments on H.R. 3520, which became the Hazardous Materials 
Transportation Uniform Safety Act of 1990, Public Law 101-615, 104 
Stat. 3244 (Nov. 16, 1990), that ``it is essential to begin with a 
limited permitting program that is administratively practicable, and 
then consider expanding the program, as determined necessary.'' House 
Report No. 101-444, Committee on Energy and Commerce, 101st Cong., 2d 
Sess., pp. 66-67 (April 3, 1990).
    The Chemical Waste Transportation Institute (CWTI) recommended that 
the requirement for a safety permit be broadened to cover all motor 
carriers required to register and pay a registration fee under 49 
U.S.C. 5108. CWTI stated that any motor carrier that transports a 
quantity of hazardous material for which a placard is required ``should 
have a safety rating to demonstrate that [its] safety rating is above 
``unsatisfactory,''' and the ``only `new' administrative burden would 
be that created by the requirement to `review' each subject motor 
carrier's rating every three years.''
    Two commenters, Tri-State Motor Transport Co. (Tri-State) and the 
International Brotherhood of Teamsters, suggested that a safety permit 
should be required for motor carriers that transport any hazardous 
materials, without specifying any threshold amounts. According to Tri-
State, ``the sooner the program is expanded to cover all hazardous 
materials the more effect it will have in reaching this goal.'' The 
Teamsters noted that ``all classes of hazmat'' are involved in 
hazardous materials incidents.
    Additional comments addressed the specific hazardous materials for 
which a safety permit would be required. With respect to explosives, a 
construction industry association stated that a safety permit should be 
required only for a carrier that transports large quantities of 
explosives ``from manufacturer to the supplier,'' and that ``[e]xisting 
OSHA regulations can cover the transportation'' by a contractor who 
used explosives at a specific jobsite, because the 25 kg threshold ``is 
often transported in a small `pick-up' type truck.'' The American 
Pyrotechnics Association (APA) stated that requiring a safety permit to 
transport more than 25 kg of Division 1.3 G explosives (including 
``display'' fireworks) would present ``unnecessary burdens'' for this 
industry. APA referred to the seasonal nature of this industry (around 
July 4), its ``excellent safety record'' as reflected in the few 
incidents in RSPA's Hazardous Materials Information System, and other 
requirements such as: (1) provisions in the Hazardous Materials 
Regulations (HMRs, 49 CFR parts 171-180) on training of hazmat 
employees, and (2) the Federal Motor Carrier Safety Regulations (49 CFR 
parts 350-399) for the driver to have a commercial driver's license 
with a hazmat endorsement. APA stated that a requirement for a safety 
permit ``will do nothing to enhance public safety beyond that which 
will be achieved through the [hazmat] training,'' and it expressed 
concerns that States will develop separate programs ``with duplicative 
permit requirements and unnecessary, burdensome paperwork.'' APA asked 
for a delay in the effective date of the safety permit program for 
carriers of explosives, while the Idaho State Police opposed any 
extension of the three-year phase-in period. Tri-State also recommended 
reducing the three-year phase-in period.

[[Page 49740]]

    In the NPRM, FHWA proposed to limit the poisonous inhalation (PIH) 
materials for which a safety permit would be required to those Packing 
Group I materials in Hazard Zone A. However, it asked for information 
on materials in Hazard Zone B and whether the safety permit requirement 
``should be expanded to include the transportation of [PIH] Hazard Zone 
B hazardous materials,'' which ``include such widely distributed 
chemicals as chlorine, hydrogen sulfide, ethylene oxide, and nitric 
oxide, to name a few.'' (58 FR at 33420). Two State police forces 
recommended including Hazard Zone B materials (California) or giving 
further consideration to Hazard Zone B materials (Idaho); with Idaho 
suggesting that ``safety is a greater concern under the safety permit 
program than under the registration program,'' so that the reasons for 
not requiring registration by carriers of smaller amounts of Hazard 
Zone B materials (in a bulk container with a capacity less than 3,500 
gallons) should not apply to the requirement for a safety permit. Three 
other commenters opposed expanding the safety permit requirement to 
Hazard Zone B materials, including the Oregon Public Utilities 
Commission, which stated that safety would not be increased by 
requiring a safety permit for ``all movements of chlorine'' and ``many 
pesticide movements.''
    Many comments addressed the proposal to require a safety permit to 
transport ``liquefied natural gas,'' including the gases covered by 
that term. Several persons said that the NPRM was ambiguous and could 
be read to cover all Division 2.1 materials that can be a ``liquid 
natural gas'' and all liquid fuels derived from natural gas. Air 
Products and Chemicals, Inc. stated that ``liquefied petroleum gases 
and natural gas liquids represent at least comparable safety risks and 
require at least comparable carrier expertise,'' while the National 
Propane Gas Association (NPGA) opined that ``propane, also known as 
liquefied petroleum gas or LP-gas, was not included in the statute as a 
product to be regulated through a permit,'' based on ``the historical 
safety of the propane gas transportation system under the existing 
comprehensive DOT regulatory system.'' NPGA stated that there is no 
basis in legislative history or experience to require a safety permit 
for all Division 2.1 hazardous materials. The American Petroleum 
Institute recommended that the proper shipping name(s) of the specific 
materials be set forth in the regulations, rather than references to 
Division 2.1 materials. Three commenters stated that the use of the 
term `in bulk' to refer to a container with a capacity of 3,500 gallons 
or more would be confusing, because a ``bulk packaging'' is defined in 
49 CFR 171.8 to include a container having a ``maximum capacity greater 
than 450 L (119 gallons) as a receptacle for a liquid'' and a ``water 
capacity greater than 454 kg (1000 pounds) as a receptacle for a gas.'' 
Yellow Freight System, Inc. supported the 3,500-gallon capacity 
threshold for liquefied natural gas, because ``[l]ess than `in bulk' 
quantities generally are less likely to pose an immediate danger to 
public safety while in transit compared to `in bulk' shipments.''
    In the preliminary cost-benefit analysis of this rulemaking (a copy 
of which has been placed in the docket), the agency considered three 
different lists of hazardous materials for which a safety permit would 
be required:
    Option No. 1 is the ``statutory'' list of the four categories of 
hazardous materials in 49 U.S.C. 5109(b), at the same threshold 
quantities for which registration is required. Under this option, 
almost 2,500 motor carriers (including about 800 intrastate carriers) 
would be required to obtain a safety permit.
    Option No. 2 includes an ``expanded'' list of the following 
hazardous materials, which would make approximately 6,500 motor 
carriers (including about 1,830 intrastate carriers) subject to the 
safety permit requirement:

--Explosive materials: any quantity of Division 1.1 and 1.2 materials; 
more than 25 kg (55 pounds) of Division 1.3 materials; and more than 
454 kg (1,000 pounds) of Division 1.5 materials.
--PIH materials (in Divisions 2.3 and 6.1): Hazard Zone A materials in 
any quantity; a shipment of Hazard Zone B materials in a bulk packaging 
(capacity greater than 450 L [119 gallons]); a shipment of Hazard Zone 
C or D materials in a bulk packaging having a capacity equal to or 
greater than 13,248 L (3,500 gallons).
--Flammable gases (Division 2.1), anhydrous ammonia (Division 2.2), and 
poisons (Division 6.1, Packing Group I, other than PIH materials): a 
shipment in a bulk packaging having a capacity equal to or greater than 
13, 248 L (3,500 gallons).
--Organic peroxides: any quantity of a Type B, temperature controlled 
organic peroxide (Division 5.2) material.
--Infectious substances (Division 6.2): any quantity of a select agent 
or toxin regulated by the Centers for Disease Control and Prevention 
(CDC) under 42 CFR part 73, except for laboratory samples.
--Radioactive (Class 7) materials: any ``exclusive use'' shipment of 
Class 7 materials transported in accordance with 49 CFR 427(a) as well 
as any highway route controlled quantity.

    Option No. 3 would apply the requirement for a safety permit to all 
motor carriers subject to the security plan requirements in 49 CFR 
172.800, adopted in the final rule published by RSPA under docket No. 
RSPA-02-12064 (HM-232) on March 25, 2003 (67 FR 14521). This would be 
more than 16,250 motor carriers (including about 4,600 intrastate 
carriers) that are required to register with RSPA and pay a 
registration fee or transport a select agent or toxin regulated by the 
CDC under 42 CFR part 73.
    FMCSA continues to believe that the initial requirements for a 
safety permit should apply to only those motor carriers that transport 
the materials mandated by Congress (option No. 1). However, expanding 
the existing statutory list to require a safety permit for motor 
carriers that transport other hazardous materials (covered by option 
Nos. 2 or 3) should provide the public with additional safety measures, 
and FMCSA invites comments on whether the agency should, in the future, 
apply the requirement for a safety permit to motor carriers that 
transport the hazardous materials in the ``expanded'' or ``HM-232'' 
lists above.

Intrastate and Foreign Motor Carriers

    The requirement to hold a safety permit in 49 U.S.C. 5109 applies 
to both interstate and intrastate motor carrier operations within the 
United States. In the 1993 NPRM, FHWA proposed to require that 
intrastate motor carriers must comply with ``all applicable parts of 
the FMCSRs'' in order ``to use the provisions of part 385, `Safety 
Fitness Procedures,' in making determinations to issue, or deny, a 
request for a safety permit for either interstate or intrastate motor 
carriers'' (58 FR at 33421). Several commenters raised concerns about 
applying the financial responsibility requirements in 49 CFR part 387 
to intrastate carriers that are subject only to State requirements when 
they use a smaller vehicle (having a gross vehicle weight rating of 
less than 10,000 pounds) to transport the hazardous materials for which 
a safety permit would be required.
    As discussed below under ``Conditions for issuing a safety 
permit,'' FMCSA is still proposing to require that a motor carrier have 
a ``satisfactory''

[[Page 49741]]

safety rating in order to obtain a safety permit. Accordingly, an 
intrastate carrier would be required to apply for a U.S. DOT number as 
a ``new entrant'' and subject itself to a compliance review. The safety 
rating issued by FMCSA to an intrastate carrier would be used only for 
purposes of issuing a safety permit; the safety rating issued to an 
intrastate carrier would not be posted on FMCSA's Web site nor would it 
be used by FMCSA for any purpose other than determining whether the 
carrier is entitled to a safety permit.
    FMCSA does not consider that section 5109 is a mandate to make all 
intrastate motor carriers subject to provisions in the FMCSRs that do 
not already apply to them, including the financial responsibility 
requirements in 49 CFR part 387. Except for the requirement to hold a 
safety permit, in order to transport any of the designated hazardous 
materials, and to undergo a compliance review in order to demonstrate 
its fitness to hold a safety permit, an intrastate carrier would not 
become subject to other requirements in the FMCSRs that do not already 
apply.
    The definition of ``interstate commerce'' includes foreign 
commerce. Therefore, Canadian and Mexico-domiciled motor carriers 
transporting HM permitted materials in the United States would be 
subject to the requirements proposed in this SNPRM.

Application Procedures

    Each motor carrier that conducts operations in interstate commerce 
must submit to FMCSA a Motor Carrier Identification Report, Form MCS-
150, before it begins operations and on a two-year cycle thereafter 
(the month and year of submission are based on the last two digits of 
the carrier's U.S. DOT number). 49 CFR 390.19(a). Effective January 1, 
2003, a ``new entrant'' motor carrier must also submit Form MCS-150A, 
Safety Certification for Application for a U.S. DOT Number, and other 
forms to obtain operating authority. 49 CFR 385.305.
    In the 1993 NPRM, FHWA proposed to use a revised Form MCS-150 as 
the application for a safety permit. Two commenters supported the use 
of the MCS-150 form (with revisions) for applying for a safety permit. 
Other commenters suggested combining the safety permit and registration 
programs, in terms of a single application form, registration and 
permit number, and expiration dates.
    FMCSA believes that the safety permit program can best be 
coordinated with the biennial report filed on Form MCS-150 (and Form 
MCS-150A for a new entrant). Rather than revising the Form MCS-150, 
however, FMCSA proposes to create a new Form MCS-150B for a motor 
carrier to provide the limited additional information required for 
issuance of a safety permit. FMCSA believes that keeping the safety 
permit program part of the motor carrier identification and safety 
fitness program with the same schedule for renewal will be more 
efficient than attempting to combine the safety permit application with 
the registration program (which applies to offerors and carriers by all 
modes of transportation, allows registration for one, two, or three 
years at the registrant's option, and operates on a mid-year basis 
[July 1 to June 30] rather than a staggered cycle throughout a two-year 
period).
    Implementation of the safety permit requirement would be phased in 
beginning January 1, 2005. The actual date of compliance would depend 
on whether the motor carrier is already involved in the transportation 
of a permitted material. A motor carrier that is not involved in the 
transportation of a permitted material on January 1, 2005, would need 
to apply for and receive a safety permit before it may transport any of 
the hazardous materials for which a safety permit would be required. 
However, a ``new entrant'' motor carrier that applies for a U.S. DOT 
number after January 1, 2005, would be required to apply for a safety 
permit (by submitting Form MCS-150B) during 2005 or 2006. Thus, until 
the motor carrier that is already operating is required to renew its 
U.S. DOT number during 2005 or 2006, it need not apply for a safety 
permit. In all cases, a safety permit will be valid until the next date 
for filing Form MCS-150 (in accordance with the schedule set forth in 
49 CFR 390.19(a)(2) and (3)).
    A draft of Form MCS-150B is available in the docket (at the DMS Web 
site http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov), 
and interested persons are invited to submit 
comments on that draft. As indicated on that draft, FMCSA proposes to 
require that an official of the motor carrier must certify ``under 
penalties of perjury,'' but not to require notarization. As in the 1993 
NPRM, FMCSA is not proposing to charge a fee for applying for a safety 
permit, but it may consider the need to assess an application fee in 
the future, especially if the safety permit program is expanded to 
apply to motor carriers of additional types and quantities of hazardous 
materials.

Conditions for Issuing a Safety Permit

    In the 1993 NPRM, FHWA proposed that its determination on an 
application for a safety permit would be based ``upon a safety fitness 
finding made pursuant to 49 CFR part 385.'' 58 FR at 33421. FHWA also 
proposed authority to issue a temporary safety permit to an unrated 
motor carrier, pending a safety fitness determination, when the carrier 
has certified in its application that it is operating in full 
compliance with the FMCSRs and HMRs, or comparable State regulations 
(including financial responsibility requirements in part 387 or State 
regulations, whichever is applicable). Under the 1993 proposal, a 
temporary safety permit would remain in effect for no more than 120 
days ``or until a safety rating is assigned, whichever occurs first'' 
(58 FR at 33424).
    As in the 1993 NPRM, FMCSA proposes to require that a motor carrier 
have a ``satisfactory'' safety rating in order to obtain a safety 
permit. Appendix B to 49 CFR part 385 contains an explanation of the 
safety rating process including a list of the regulations that FMCSA 
considers ``acute'' (where noncompliance is so severe as to require 
immediate compliance) and ``critical'' (where noncompliance relates to 
management and/or operational controls). This SNPRM also proposes 
additions to the list of ``acute'' and ``critical'' regulations in 
Section VII of Appendix B to part 385.
    FMCSA is also proposing to add two further conditions for issuing a 
safety permit: (1) the motor carrier must show that it has a 
satisfactory security program, and (2) the motor carrier must be 
registered with RSPA (and remain registered). A satisfactory security 
program would apply to motor carriers transporting hazardous materials 
in commerce listed in this Supplemental Notice of Proposed Rulemaking 
(SNPRM). A satisfactory security program must include: (1) A security 
plan as prescribed in subpart I of Part 172 of this title, (2) means of 
communication that will enable the vehicle operator to immediately 
contact the motor carrier during the course of transportation as 
required in this SNPRM, and (3) means of providing its hazardous 
materials employees with security training for hazardous materials 
employees. FMCSA is also proposing to issue a temporary safety permit, 
valid for up to 270 days, to a motor carrier that does not have a 
safety rating but certifies that it has a satisfactory security program 
and is operating in full compliance with the HMRs, the FMCSRs or 
comparable State regulations, and minimum financial responsibility 
requirements in 49 CFR part 387 or State regulations (whichever are 
applicable). However, FMCSA would not issue a temporary safety

[[Page 49742]]

permit to a motor carrier that, as indicated in the Motor Carrier 
Management Information System (MCMIS), has a crash rate in the top 30% 
of the national average; has a driver, vehicle, hazardous material, or 
total out-of-service rate in the top 30% of the national average; or is 
listed on FMCSA's SafeStat A, B, C, or D lists.
    Comments to the 1993 NPRM supported use of the safety rating to 
determine a motor carrier's fitness to hold a safety permit, but raised 
questions about the manner in which a safety rating is assigned and 
whether the 120 day limitation for a temporary safety permit was 
sufficient, especially to cover all intrastate carriers that have not 
previously been required to submit Form MCS-150 and obtain a U.S. DOT 
number. The California Highway Patrol (CHP) recommended that a safety 
rating be assigned only after a ``compliance review,'' with greater 
emphasis on ``the mechanical condition of the carrier's vehicles,'' and 
not a lesser ``safety review'' which it considered not to be 
``sufficient to determine a carrier's actual safety compliance.'' CHP 
also recommended that the compliance review be performed at the 
principal location where hazardous materials operations take place, 
rather than at its main office or headquarters which may be ``far 
removed from the actual working locations.''
    The Oregon Public Utilities Commission expressed concern that the 
safety ``rating system is difficult to decipher and appears * * * to be 
somewhat arbitrary'' with variations among different regions. Baker 
Performance Chemicals, Inc. suggested that there be more discussion on 
how the safety rating is determined. CWTI recommended that a written 
notification of an ``unsatisfactory'' or ``conditional'' safety rating 
include written notice that the carrier is prohibited from transporting 
any of the hazardous materials for which a safety permit is required.
    FMCSA believes that most, if not all, of the concerns expressed 
about the safety rating system itself have been addressed in the 1997 
revisions to 49 CFR part 385, including the addition of Appendix B to 
that part (``Explanation of Safety Rating Process''). See the final 
rules published May 28, 1997 (62 FR 28807), and November 6, 1997 (62 FR 
60035). At present, FMCSA bases a safety rating only on a full 
compliance review, and it retains the discretion to perform that review 
at any of the motor carrier's facilities. FMCSA shares the concerns 
that 120 days may not be sufficient time to perform a compliance review 
for a motor carrier that does not have a safety rating, and the agency 
proposes to allow a temporary safety permit to remain in effect for up 
to 270 days, providing that the applicant satisfies all the conditions 
for issuance of a temporary safety permit.

Permit Number and Evidence in the Vehicle

    In the 1993 NPRM, FHWA proposed that its written notification of a 
``satisfactory'' safety rating would ``serve as the safety permit and 
shall include the safety permit number assigned.'' (59 FR at 33424) It 
also proposed that the safety permit number must be ``clearly displayed 
on shipping papers or the appropriate transportation document,'' in 
order to meet the statutory requirement for the motor carrier to keep 
``a copy of the permit, or other proof of its existence, in the 
vehicle.'' 49 U.S.C. 5109(a). FHWA noted the prohibition in Sec.  
5109(f) against a person offering a designated hazardous material for 
transportation by motor vehicle unless the carrier holds a safety 
permit, and it indicated that ``RSPA will subsequently initiate 
rulemaking which will address shipper responsibility.'' (58 CR at 
33419)
    The National Motor Freight Traffic Association (NMFTA) supported 
the use of a carrier's U.S. DOT number as the safety permit number and 
stated that ``use of this number would minimize paperwork, inasmuch as 
the assigned safety permit number would be displayed on the carriers' 
transportation documents.'' It also stated that, since FHWA intended to 
add a ``permit'' database to its existing information systems, ``safety 
fitness and permit information would be readily available to federal 
and state officials and enforcement personnel.'' CHP questioned whether 
use of the U.S. DOT identification number would be sufficient because 
``all private interstate motor carriers must obtain and display'' this 
number. The Idaho State Police stated that ``there is no way for an 
enforcement officer [to] know that the carrier has met the requirements 
for having a safety permit,'' and it recommended the creation of an 
approach providing ``adequate measures for ensuring that safety permit 
numbers are legitimate and verifiable.''
    Some commenters suggested that the same number should be used for 
both registration and the safety permit, to cover the same period of 
time, and that DOT should use information from the registration program 
to issue safety permits to carriers with a U.S. DOT identification 
number. CWTI suggested that the safety permit number should be included 
on the registration certificate or another document carried on the 
vehicle, rather than the shipping paper prepared by the shipper (or 
offeror).
    Other commenters objected to the proposed requirement that the 
safety permit number must be on the shipping paper or stated that the 
specific location and manner of displaying the safety permit number 
needed to be addressed. Yellow Freight stated that law enforcement 
officers should be able to determine ``through another source'' whether 
a carrier holds a safety permit, and adding additional information to 
shipping papers ``that is not essential to immediate safety concerns 
will not enhance the transportation of hazardous materials.'' The 
Institute of Makers of Explosives (IME) and the International Society 
of Explosive Engineers (ISEE) stated that requiring the shipper to put 
the carrier's safety permit number on the shipping paper would result 
in more errors, as well as increase the time and effort of preparing 
shipping papers. 3M suggested that the carrier (rather than the 
shipper) should be responsible for putting the safety permit number on 
shipping papers.
    Associations of motor carriers endorsed the statutory requirement 
that a shipper (or offeror) must verify that the carrier holds a safety 
permit before offering a designated hazardous material for 
transportation. 3M objected and Mobil stated that access to FMCSA's 
Motor Carrier Management Information System (MCMIS) would be necessary 
for a shipper to verify that it has a permit, and that there would be 
no need to have the permit number on shipping papers if a carrier were 
required to provide ``proof of fitness and safety permit issuance'' to 
shippers. In addition, ISEE raised a concern about ``the availability 
of explosives information to the public through the inclusion of 
carrier permit information in MCMIS.''
    In this SNPRM, FMCSA is no longer proposing that the carrier's 
safety permit number must appear on the shipping paper, but the carrier 
would be required to maintain a copy of the safety permit or another 
document showing the permit number in the vehicle transporting a 
designated hazardous material. A State or local law enforcement officer 
would be able to confirm the validity of this number through real-time 
or close to real-time information made readily accessible by FMCSA.
    Section 5109(f) provides that a person may offer a designated 
hazardous material to a motor carrier for transportation in commerce 
``only if the carrier has a safety permit.'' The authority for 
implementing this

[[Page 49743]]

provision has been delegated to RSPA. See 49 CFR 1.53(b)(2), 
1.73(d)(2).

Written Route Plan and Communication

    The 1993 NPRM included a proposal to require compliance with the 
routing and route plan requirements then set forth in 49 CFR 177.825 
(with regard to radioactive materials) and 397.9 (with regard to Class 
A and B explosives). These requirements (now contained in 49 CFR 397.67 
and 397.101) specify that the carrier must provide its driver with a 
written route plan when the motor vehicle contains a highway route 
controlled quantity of a Class 7 (radioactive) material or any quantity 
of a Division 1.1, 1.2, or 1.3 (explosive) material.
    FMCSA considers that preparation of and adherence to a written 
route plan will improve the safety and security of transportation of 
all materials for which a safety permit is required. Accordingly, in 
this SNPRM, FMCSA is proposing to revise 49 CFR 397.67(d) to require 
the carrier or its agent to prepare and provide its driver with a 
written route plan covering any shipment of a PIH material or liquefied 
natural gas for which a safety permit is required, in addition, to all 
shipments of Division 1.1, 1.2, and 1.3 materials. We are also 
proposing to require (in proposed Sec.  385.415) that the written route 
plan be carried in the vehicle and followed, unless an alternate route 
is required by a law enforcement officer or emergency conditions. The 
written route plan when carried in the vehicle, must be maintained in 
such a manner that ensures security requirements set forth in Subpart I 
of part 172 of this title are met. The driver would no longer be 
allowed to prepare the written route plan for the carrier, but the 
driver would be required to amend the written route plan to show any 
deviation. In addition, the driver would be required to communicate 
with the carrier at least once every two hours and any time there is a 
deviation from the written route plan, and the motor carrier would be 
required to contact law enforcement officials in the event that there 
has been no communication from its driver for more than three hours.
    FMCSA is also proposing to require that the vehicle driver must 
have in the vehicle, and make available to law enforcement officials 
upon request, the telephone number of an employee of the motor carrier 
who has a copy of the written route plan and is able to determine 
whether the motor vehicle is on the route specified in that route plan. 
Furthermore, FMCSA is proposing to require the motor carrier to 
maintain a record of all communications with the vehicle driver during 
transportation of a hazardous material for which a safety permit is 
required, containing the name of the driver, identification of the 
vehicle, the hazardous material(s) being transported, the date and time 
of each communication, and each period of more than two hours without a 
communication with the driver including a statement of the facts or 
conditions that prevented communication for more than two hours.

Pre-Trip Inspections

    To implement the pre-trip inspection requirement in 49 U.S.C. 
5105(e), FHWA proposed in the 1993 NPRM to require an inspection of a 
vehicle transporting a highway route controlled quantity of a Class 7 
(radioactive) material, before each trip, in accordance with Appendix G 
to the FMCSRs. FHWA also proposed that the inspector must have the 
qualifications specified in 49 CFR 396.19 and that written 
certification including certain information must be prepared and 
retained by the carrier for one year. It invited comments on its 
proposed inspection criteria and ``whether radiological monitoring 
should be included.''
    The comments on this topic addressed who should perform these 
inspections, the inspection criteria, and whether or not the inspection 
should include radiological monitoring. The Department of Energy (DOE) 
and EEI expressed concern that a requirement for radiological 
monitoring would duplicate the requirement in 49 CFR 173.441 to ensure 
that a package containing radioactive material is checked before 
shipment, but several other commenters supported a requirement for 
monitoring as part of the pre-trip inspection. To the extent that 
monitoring is performed, some commenters, including Tri-State, stated 
that only the shipper has monitoring equipment and trained personnel so 
that it (rather than the carrier) should perform the pre-trip 
inspection. DOE endorsed ``the flexibility of allowing inspections to 
be performed by inspectors from organizations other than the carrier 
itself,'' and other persons (besides a motor carrier official) should 
be allowed to sign the inspection certification. DOE also stated that 
in any case, radiological monitoring should not be done by ``a 
qualified vehicle inspector'' unless that person was also a qualified 
health physicist.
    Tri-State and CHP supported use of the proposed inspection criteria 
and inspector qualifications in the FMCSRs. Others stated that the 
criteria in Appendix G are not sufficient and suggested using standards 
then under development by the Commercial Vehicle Safety Alliance 
(CVSA). The Idaho State Police also recommended that ``in order to pass 
the inspection, the vehicle must be defect free.'' CHP and Montana DOT 
recommended that the inspection document or certification must be 
carried on the vehicle.
    In this SNPRM, FMCSA is proposing inspection standards similar to 
those contained in the CVSA Level VI Inspection Program for Radioactive 
Shipments. The pre-trip inspection would have to be performed by a 
government inspector, (i.e., one employed by or under contract to a 
Federal, State or local government). The inspector must have completed 
an appropriate training program of at least 104 hours, including at 
least 24 hours of training in conducting radiological surveys and 
inspecting vehicles transporting highway route controlled quantity 
(HRCQ) radioactive materials. The inspection must cover all applicable 
requirements in the HMRs and FMCSRs, or compatible State regulations, 
including 49 CFR parts 383 (commercial driver's license), 391 (driver 
qualifications), 395 (hours of service), parts 393 and 396 (vehicle 
condition), provisions in the HMRs on the transportation of radioactive 
materials (49 CFR parts 171, 172, 173, and 178), and registration (49 
CFR part 107, subpart G).

Denial, Suspension, or Revocation of a Safety Permit

    As discussed above, in order to be issued a safety permit, a motor 
carrier would have to be registered with RSPA and have a 
``satisfactory'' safety rating and a satisfactory security program. A 
temporary safety permit could be issued to a carrier that does not have 
a safety rating, valid for up to 270 days; if the carrier receives a 
``satisfactory'' safety rating, it would receive a safety permit, but 
the temporary permit would be revoked if the carrier receives a safety 
rating that is less than ``satisfactory.'' FMCSA is also proposing that 
a safety permit will be subject to suspension or revocation if a 
carrier fails to maintain its ``satisfactory'' safety rating or under 
other specified circumstances, including the failure to submit a 
renewal application or providing any false or misleading information on 
a required application form; failure to maintain a satisfactory 
security plan; failure to comply with an out-of-service order; failure 
to comply with the FMCSRs, HMRs, or compatible State requirements, or 
an order issued under any of these, in a manner that shows the

[[Page 49744]]

carrier is not fit to transport the hazardous materials for which a 
safety permit is required; loss of its operating rights; and suspension 
of its registration for failure to pay a civil penalty or abide by a 
payment plan.
    The SNPRM contains procedures for administrative review of a 
denial, suspension, or revocation of a safety permit. A motor carrier's 
rights to administrative review would depend on the ground for denial, 
suspension, or revocation of the safety permit. In summary, where there 
already exists a right to administrative review of the underlying basis 
for denial, suspension, or revocation, the carrier must pursue its 
existing rights to review. Accordingly, if the basis for denial, 
suspension, or revocation of a safety permit is the carrier's failure 
to receive or maintain a ``satisfactory'' safety rating, its review 
rights are limited to those set forth in 49 CFR 385.15 (administrative 
review of a proposed safety rating) and 385.17 (change to safety rating 
based on corrective actions). If the basis for denial, suspension, or 
revocation of a safety permit is the carrier's failure to pay a civil 
penalty or abide by a payment plan, its review rights are limited to 
the show cause proceedings set forth in 49 CFR 386.83(b) and 386.84(b).
    When a denial, suspension, or revocation of a safety permit is 
based on another ground, the SNPRM proposes that the carrier may submit 
a written request for administrative review within 30 days after 
service of a written notification that FMCSA has (1) denied a safety 
permit, (2) immediately suspended or revoked a safety permit (when an 
imminent hazard exists), or (3) proposed to suspend or revoke a safety 
permit. The specific procedures that would apply to a request for 
administrative review are contained in proposed Sec.  385.423(d).

State Permits

    The 1993 NPRM contemplated that many States would continue to 
require carriers to obtain a permit in order to transport hazardous 
materials within the State. In the SNPRM, FMCSA proposes that the 
Federal safety permit would be in addition to any required State 
permit, but that FMCSA would issue a safety permit to a carrier without 
further inspection or investigation when FMCSA is able to verify that 
the carrier holds a safety permit issued by a State under a program 
that is equivalent to the Federal safety permit program.
    As stated in the 1993 NPRM, a State permit requirement would be 
preempted ``if compliance with both the State and Federal permit 
requirements is not possible, or if the State requirement creates an 
obstacle to the accomplishment'' of Federal hazardous material 
transportation law and the regulations.'' (58 FR at 33419) In addition 
to these general preemption criteria now set forth in 49 U.S.C. 
5125(a), a State may impose a fee for a permit to transport hazardous 
materials, ``only if the fee is fair and used for a purpose related to 
transporting hazardous material, including enforcement and planning, 
developing, and maintaining a capability for emergency response.'' ( 49 
U.S.C. 5125(g)(1)).
    RSPA has stated that ``[a] permit may serve several legitimate 
State police power purposes, and the bare requirement * * * that a 
permit be applied for and obtained is not inconsistent with Federal 
requirements. However, a permit itself is inextricably tied to what is 
required in order to get it'' so that a permit requirement ``must be 
considered together with the application requirements.'' Inconsistency 
Ruling (IR) No. 2 (Rhode Island), 44 FR75566, 75570-71 (Dec. 20, 1979). 
Accordingly, a State and local permit for hazardous materials 
transportation is not preempted in all cases, but only when the 
underlying requirements that must be fulfilled in order to obtain the 
permit conflict with Federal hazardous materials law or the HMR. Id.; 
Preemption Determination (PD) No. 14 (Houston), 63 FR 67506, 67510 
(Dec. 7, 1998), 64 FR 949, 33952 (June 24, 1999); IR-28 (San Jose, 
California), 55 FR 8884, 8890 (Mar. 8, 1990); IR-20 (Triborough Bridge 
and Tunnel Authority), 52 FR 24396, 24397-98 (June 30, 1987); IR-3 
(Boston), 46 FR 18918, 18923 (Mar. 26, 1981).
    The November 17, 1993 report of the Alliance discussed the two 
primary reasons that States carry out their own permit and registration 
programs: (1) The issuance of a permit provides an enforcement 
mechanism (suspension or revocation of the permit) if a carrier acts 
irresponsibly or violates State transportation or environmental laws, 
and (2) the registration or permit process provides a State information 
about the business activities of persons who operate within the State 
but are not based within the State. In its letter transmitting that 
report, the Alliance stated that its members had operated under the 
assumption that Federal hazardous material transportation law 
``authorized a dual system for registering and permitting motor 
carriers,'' and that a 1992 technical amendment to the law made this 
explicit. The Alliance stated that the language in the two separate 
sections of the law on a Federal safety permit and State permits (now 
Sec. Sec.  5109 and 5119) does not restrict ``the types of hazardous 
materials'' that may be covered under a State permit, and expressed 
opposition to finding that a Federal safety permit program ``would 
preempt state permitting of carriers of hazardous materials covered 
under the federal program.''
    CWTI concurred that a uniform State permit system proposed by the 
Alliance and implemented under Federal regulations would not be subject 
to preemption under the dual compliance and obstacle criteria, 
contained in 49 U.S.C. 5125(a). It recommended that the applicability 
of these criteria to State permits should be clarified in several 
respects by placing the preemption standard in the regulations (rather 
than just in the preamble) and explicitly stating that ``a motor 
carrier holding a valid federal safety permit would be exempt from all 
non-federal permit requirements.''
    The Public Utilities Commission of Ohio stated that it would be 
``against the public interest'' to establish a Federal program under 
which a State permit program would be preempted with respect to the 
hazardous materials for which a safety permit would be required, but 
not with respect to other, ``lower risk'' materials. CHP asked for 
further clarification of the preemption standard to be applied to State 
permits, in light of the statement in the 1993 NPRM that a State permit 
covering the ``same hazardous materials * * * based on a demonstration 
of safety fitness'' would be preempted after implementation of a 
Federal safety permit program. (58 FR at 33423)
    Other persons submitting comments on the 1993 NPRM urged alignment 
of the Federal and State programs, suggesting that States ``accept the 
FHWA program'' (IME), ``closely align this permit program with the work 
of the Alliance'' (Yellow Freight), ``see if one program could be 
established'' under the Alliance proposal (Montana DOT), or ``consider 
waiving the FHWA permitting requirement'' if a uniform State program 
contained requirements that ``duplicate or exceed those contained in 
the NPRM'' (DuPont).
    FMCSA agrees that Federal hazardous materials transportation law 
allows States to continue their permit requirements after the 
implementation of a Federal safety permit requirement, and that, if a 
State has a safety permit program that is equivalent to the 
requirements in 49 U.S.C. 5109, FMCSA may properly accept the findings 
of the State that a motor carrier is ``fit, willing, and able'' to 
transport the designated

[[Page 49745]]

hazardous materials and to comply with the applicable laws, 
regulations, and financial responsibility requirements. Section 5109 
requires DOT to issue a Federal safety permit to a motor carrier that 
meets these requirements, rather than simply allow the carrier to 
operate under an equivalent State permit, so FMCSA proposes to issue a 
Federal permit, without further inspection or investigation, when it 
can verify that this condition exists. FMCSA encourages States to have 
or implement a HM Permit program equivalent to a Federal permit that 
will ultimately prevent duplication of a State and Federal requirement.
    To the extent that a State permit program is equivalent to the 
Federal requirements, no preemption issues would arise. It is only 
differences between Federal and non-Federal requirements that should 
raise issues of preemption. In this regard, FMCSA and RSPA consider 
that the preemption criteria set forth in 49 U.S.C. 5125 will continue 
to apply to non-Federal permit requirements, just as those criteria 
have applied in the past, and that the impact on States of a Federal 
permit program should be ``minimal.'' (58 FR at 33423)
    Preemption would not necessarily arise simply if a State applies 
its permit requirements to a smaller, larger, or different group of 
hazardous materials, than those to be covered by a Federal safety 
permit. In a recent determination, RSPA noted that it ``has considered 
numerous challenges to non-Federal requirements without finding that 
the specific requirements were preempted because they did not apply to 
all hazard classes and all materials listed in the Hazardous Materials 
Table in 49 CFR 172.101,'' although there are circumstances in which 
``a specific non-Federal requirement that applies only to one hazardous 
material may, indeed, be an obstacle to accomplishing and carrying out 
Federal hazardous material transportation law or the HMR.'' PD-13(R) 
(Nassau County), decision on petition for reconsideration, 65 FR 60238, 
60241 (Oct. 10, 2000). As already discussed, in assessing a differing 
State (or local) permit requirement, the issue will be whether the 
underlying requirements that must be fulfilled in order to obtain the 
permit conflict with Federal hazardous materials law or the HMR. The 
preemption criteria set forth in 49 U.S.C. 5125 will continue to apply 
to State permits, and it is not considered necessary to repeat those 
criteria in the regulatory text of this final rule.

Related Regulations and Rulemaking Projects

    As discussed above, in this SNPRM, we are proposing to require an 
applicant for a safety permit to certify compliance with the HMR 
security plan and training requirements adopted in a final rule 
published by the Research and Special Programs Administration (RSPA) on 
March 25, 2003 (68 FR 14509). That final rule, published under RSPA's 
docket HM-232, requires persons who offer for transportation or 
transport certain hazardous materials in commerce to develop and 
implement security plans. The security plan requirement, codified in a 
new subpart I of part 172 of the Hazardous Materials Regulations (HMR; 
49 CFR Parts 171-180), applies to shipments of the following classes 
and quantities of hazardous materials:

    (1) A highway route-controlled quantity of a Class 7 
(radioactive) material in a motor vehicle, rail car, or freight 
container;
    (2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 
(explosive) material in a motor vehicle, rail car, or freight 
container;
    (3) More than one L (1.06 qt) per package of a material 
poisonous by inhalation that meets the criteria for Hazard Zone A;
    (4) A shipment of a quantity of hazardous materials in a bulk 
packaging having a capacity equal to or greater than 13,248 L (3,500 
gallons) for liquids or gases or more than 13.24 cubic meters (468 
cubic feet) for solids;
    (5) A shipment in other than a bulk packaging of 2,268 kg (5,000 
pounds) gross weight or more of one class of hazardous materials for 
which placarding of a vehicle, rail car, or freight container is 
required;
    (6) A select agent or toxin regulated by the Centers for Disease 
Control and Prevention; and
    (7) A quantity of hazardous material that requires placarding.

    A security plan must include an assessment of possible 
transportation security risks for shipments of the hazardous materials 
listed above and appropriate measures to address the assessed risks. 
Specific measures put into place by the plan may vary commensurate with 
the level of threat at a particular time. At a minimum, a security plan 
must cover personnel security, unauthorized access to shipments, and en 
route security.
    In addition, the HM-232 final rule requires all hazmat employees 
(as defined in Sec.  171.8 of the HMR) to receive security awareness 
training that provides an awareness of security risks associated with 
hazardous materials transportation and methods to enhance 
transportation security. This training must also include a component 
covering how to recognize and respond to possible security threats.
    As part of DOT's effort comprehensively to enhance hazardous 
materials transportation security, FMCSA is conducting a field 
operational test (FOT) to quantify the security costs and benefits of 
an operational concept that applies technology and improved enforcement 
procedures to hazardous materials transportation by motor carriers. The 
FOT will demonstrate an approach that enhances the safety and security 
of hazardous materials shipments from origin to destination by 
examining possible vulnerabilities in the transportation system. In 
parallel with the FOT, FMCSA will also conduct an independent 
evaluation to ascertain whether the FOT met the objective of ensuring 
the safety and security of hazardous materials shipments. This 
evaluation will also include a benefit-cost analysis on the security 
technologies tested, including remote vehicle tracking systems, remote 
vehicle disabling systems, off-route alert systems, and electronic 
ignition locks. We expect to begin the FOT in the fall of 2003 and 
complete the FOT and evaluation by September 2004.
    In a related action, on July 16, 2002, RSPA and FMCSA jointly 
published an advance notice of proposed rulemaking (ANPRM) under docket 
HM-232A to examine the need for enhanced security requirements for 
hazardous materials transportation that would be in addition to the 
security requirements adopted under HM-232 (67 FR 46622). The ANPRM 
sought comments on the feasibility of specific security enhancements 
and the potential costs and benefits of deploying such enhancements. 
Security measures under consideration include escorts, vehicle tracking 
and monitoring systems, emergency warning systems, remote shut-offs, 
direct short-range communications, and pre-notification of shipments to 
state and local authorities.
    RSPA is currently evaluating comments received in response to the 
HM-232A ANPRM to determine if additional security rulemaking is 
necessary. This evaluation will include an examination of the security 
threats posed by specific classes and quantities of hazardous materials 
and an assessment of the effectiveness of specific operational or 
technological measures in reducing security threats. Persons who may be 
affected by the proposals in this NPRM should be aware that the ongoing 
research and rulemaking projects described above may result in 
modifications to the proposals in this NPRM.

[[Page 49746]]

    Transportation Security Administration/Department of Homeland 
Security will continue to evaluate security issues, and in the future, 
may issue additional standards relating to security issues raised in 
this rulemaking.

Rulemaking Analyses and Notices

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

    The FMCSA has determined that this rulemaking is a significant 
regulatory action within the meaning of Executive Order 12866, and is 
significant within the meaning of the Department of Transportation's 
regulatory policies and procedures (DOT Order 2100.5 dated May 22, 
1980; 44 FR 11034, February 26, 1979) because of significant public 
interest in the issues relating to hazardous material permitting. The 
FMCSA has estimated costs and benefits for three policy/regulatory 
options. These estimates are discussed in detail in the full regulatory 
evaluation contained in the docket. Option 1, the statutory option, is 
the one preferred by FMCSA. It is an option involving a limited listing 
of HM included by Congress in earlier rulemaking considerations. It is 
anticipated that the economic impact of this rule, implementing option 
1, would be $0.6 million in the first year and $10.5 million in each 
subsequent year. The total discounted cost estimates are $74.5 million 
over 10 years. The costs and benefits for this NPRM are discussed 
below.
    Permit Applications. Industry costs directly tied to obtaining a 
permit include obtaining an application form, completing the 
information requested on the form, and submitting the form to FMCSA. 
Using data from RSPA on carriers that are registered with DOT under the 
provisions of 49 CFR Part 107 (FY 2002, most recent year available), 
FMCSA estimates that 2,434 carriers will be subject to this proposed 
rule. FMCSA estimates that it will take carriers 2 hours to obtain and 
complete the initial permit application at a total cost per carrier of 
$42 ($15 per hour plus fringe benefits). There are no permit 
application fees under the proposed program. The industry would thus 
incur an estimated $102,228 in permit application costs. This is a one 
time non-recurring cost.
    Permit renewal applications would be required every two years. The 
estimated burden to complete a renewal application is 15 minutes per 
carrier per year. This involves gathering some information and checking 
off a few additional boxes on the MCS-150 Form. Using the same unit 
cost of $15 per hour plus fringe benefits, the annual costs to industry 
are estimated at $12,789.
    Safety Record Standards Compliance. FMCSA data show that 1,865 
motor carriers subject to the requirements proposed in this rule do not 
currently possess a satisfactory safety rating and will need to obtain 
one as part of the permit process. This includes carriers without a 
current safety rating and those whose most recent safety ratings were 
unsatisfactory or conditional. Carriers who transport HRCQ or 
radioactive materials (RAM) are assumed to have met the safety record 
requirements of this rule through their compliance with regulations 
imposed by the Department of Energy and the Nuclear Regulatory 
Commission. FMCSA assumes that a typical carrier will spend $182 
preparing for the compliance review necessary to obtain a new safety 
rating. This includes 2 hours for the carrier's safety director and 6 
hours for a clerk to gather and process the necessary information. The 
total one-time non-recurring permit application and safety compliance 
costs to industry are, therefore, estimated to be $339,430.
    Operational Costs. The proposed rule imposes four requirements on 
carriers that will result in increased costs, most of which will recur 
annually. The rule requires that drivers must be able to contact the 
carrier and/or law enforcement in emergencies. While many carriers 
employ sophisticated satellite communication systems, FMCSA assumes 
that cell-phone type service will meet these requirements and that 90 
percent of the vehicles in service already have such a device. The 
service life of the communications equipment is assumed to be 10 years. 
Utilizing data from the 1997 Vehicle Inventory and Use Survey (VIUS), 
FMCSA estimates the total number of vehicles affected by the proposed 
regulations to be 12,500. Ten percent of these vehicles will require 
new equipment, estimated at $100 per vehicle, as well as a 
communications service plan, estimated at $60 per month. The one-time 
non-recurring communication requirement cost to industry is expected to 
be $125,000 (1,250 vehicles x $100/vehicle) and $900,000 annual cost in 
subsequent years (1,250 vehicles x $60/month x 12 months).
    Under current requirements for the Commercial Vehicle Safety 
Alliance (CVSA) Level VI inspections, point of origin inspections are 
conducted on all shipments of HRCQ or radioactive materials (RAM). 
Carriers of these HM are required to have route plans and satisfy 
conditions for expeditious delivery. As such, HM carriers would not 
incur extra costs under the proposed permit program to satisfy point-
of-origin inspections and route plan requirements.
    The proposed rule requires carriers to develop and maintain route 
plans and ensure that route verification contact numbers are carried on 
the vehicle so that law enforcement could verify the correct location 
of the shipment. It is believed that the carrier's representative 
responsible for developing the route plans would be the one to ensure 
the numbers are placed in the vehicles and available for inspection. It 
was also assumed that the same individual would ensure that the permit 
verification number is placed in the vehicle. A unit cost of $5.25 per 
shipment was based on an hourly rate of $21 (including fringe benefits) 
for a clerk and 15 minutes to complete the task and was derived from 
comments to the joint FMCSA/RSPA ANPRM entitled ``Security Requirements 
for Motor Carriers Transporting Hazardous Materials,'' published July 
16, 2002 (67 FR 46622) (FMCSA Docket No. 2002-11650). FMCSA realizes 
that some shipments are moved along the same routes repeatedly between 
given origins and destinations and new route plans would not need to be 
generated each year for these shipments. Further, the HM permits would 
be valid for two years and the carrier contact numbers are not expected 
to change frequently, if at all. Therefore, developing route plans and 
providing verification contact numbers and permit numbers in the 
vehicles are assumed to be repeated for only 50 percent of the 
shipments in a given year. The annual number of shipments, 1,221,144, 
were estimated with FMCSA data and VIUS data on the number of vehicles 
transporting different HM and assumptions regarding the anticipated 
number of trips per vehicle per year. Class 1.1, 1.2, and 1.3 and HRCQ 
RAM shipments were excluded as they already meet the proposed 
requirements. The estimated annual costs for industry compliance is 
$3,205,503 ([1,221,144 annual shipments] x [\1/2\ of shipments 
requiring action] x [$5.25/shipment]).
    The cost to a carrier to document and maintain written 
communication records between itself and its drivers assumes 15 minutes 
of a clerk's time per shipment. All shipments are considered to require 
this documentation. The estimated annual cost for this requirement is 
$6,411,006 ([1,221,144 annual shipments] x [$5.25/shipment]).
    Benefits. The benefits of the proposed HM permit program include 
improved

[[Page 49747]]

safety due to reductions in accidental and intentional HM releases. 
Secondary benefits were also considered. Among the secondary benefits 
is the reduction in incident delays, evacuations, product losses, 
property damages, environmental damages and cleanups. For accidental 
releases, incident cost estimates for specific hazard classes from a 
prior FMCSA risk study were combined with estimates of the number of 
crashes expected to occur annually in each hazard class among the 
permitted shipments. FMCSA assumes that the safety elements of the 
proposed permitting program will reduce the number of HM incidents 
among permitted shipments by 25 percent. Therefore, the expected annual 
benefit from reducing accidental HM releases is $2,025,000.
    The potential benefits of reducing intentional releases due to 
increased security measures are consistent with those analyzed in the 
NPRM for HM-232. The security measures under the HM-232 NPRM are 
consistent with, and applicable to, the proposed permitting program. 
Therefore, a separate analysis of the benefits of security was not 
conducted.
    It is difficult to accurately ascertain the direct benefit of this 
proposal insofar as its impact upon reducing the malicious use of 
hazardous materials in transportation. To begin with, the actual costs 
that an averted terrorist attack of this nature would have imposed, and 
its probability of success with and without these measures, is 
unknowable. Terrorism is a fairly new phenomenon, and we have little 
notion of a likelihood function under the current conditions for HM 
transportation or under this proposal regarding hazardous materials 
permitting procedures. Similarly, we have little idea of the expected 
cost of a terrorist attack, given that one occurs. So although the 
theory for calculating the benefit is straightforward and simple, 
finding actual data for a future attack is not possible.
    For purposes of this analysis and given the lack of data in this 
area, FMCSA has assigned 1/1000 as the probability that this proposal 
would be decisive in stopping an incident involving the malicious use 
of hazardous materials. FMCSA interprets this to mean that this 
proposal would result, over the next 1,000 years, in one additional 
year that is free from a malicious hazardous materials incident than 
would have occurred without these procedures. Interpreted differently, 
FMCSA estimates that this proposal would completely foil one of the 
next 1,000 attempted malicious hazardous materials incidents. FMCSA 
interprets this to mean that this proposal would make each attempted 
malicious hazardous materials incident less likely to inflict its 
intended damage. Alternately, one could interpret this to mean that 
these procedures will completely foil one of the next 1,000 attempted 
malicious hazardous materials incidents.
    Next, FMCSA derived a scaled estimate of $25 billion as the cost of 
a malicious hazardous materials incident (This figure is based upon the 
lowest estimate reported of the most costly terrorist attack ever--the 
September 11th attacks and the costs of other recent terrorist attacks 
occurring in the past ten years. Please refer to the regulatory 
evaluation for this rulemaking, Hazardous Materials Carrier Permitting 
Program; Benefit-Cost Analysis of Permitting Options, for a more 
detailed discussion of how the scaled estimate was derived).
    Finally, we multiplied the scaled estimate of the cost of a 
malicious hazardous materials incident by the probability estimate as 
follows: $25 billion x .001 =$25 million. Therefore, FMCSA estimates 
that this proposal would result in a direct benefit of $25 million each 
year for the ten-year planning horizon, insofar as it relates to a 
malicious hazardous materials incident. When calculating total 
benefits, these should be discounted using a standard 7% rate. We limit 
the analysis to ten years to conform to FMCSA analytical standards. 
(FMCSA uses a 10-year time frame for all its regulatory analyses to 
allow comparability from one rule to another.) There is no reason to 
believe that the benefits would stop unless the policy underlying this 
proposed rulemaking was to be changed.
    Therefore, the combined annual direct benefit of this proposal 
would be $27 million ($2 million (rounded) + $25 million). FMCSA 
invites comments from the public to assess any potential costs or 
burdens that may be associated with this proposal.

Executive Order 13175 (Tribal Consultation)

    The FMCSA has analyzed this action under Executive Order 13175, 
dated November 6, 2000, and believes that the proposed rule would not 
have substantial direct effects 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.

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

    FMCSA has analyzed this proposed rule under Executive Order 13211, 
``Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use.'' FMCSA has preliminarily determined that 
this action would not be a significant energy action under that 
Executive Order because it is not likely to have a significant adverse 
effect on the supply, distribution, or use of energy. Therefore, a 
Statement of Energy Effects under Executive Order 13211 is not 
required.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 
1532, et seq.) requires each agency to assess the effects of its 
regulatory actions on State, local, tribal governments, and the private 
sector. Any agency promulgating a final rule that is likely to result 
in a Federal mandate requiring expenditures by a State, local, or 
tribal government or by the private sector of $100 million or more in 
any one year must prepare a written statement incorporating various 
assessments, estimates, and descriptions that are delineated in the 
Act. The FMCSA has determined that the changes proposed in this 
rulemaking would not have an impact of $100 million or more in any one 
year.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601-612) requires each 
agency to analyze proposed regulations and assess their impact on small 
businesses and other small entities to determine whether the proposed 
rule is expected to have a significant impact on a substantial number 
of small entities. Based on the assessment in the accompanying 
regulatory evaluation, and the absence of contradictory information 
submitted to the docket during the public comment period, FMCSA 
certifies that the proposals in this rulemaking are not applicable to a 
substantial number of small businesses.
    The definition of ``small businesses'' has the same meaning as 
under the Small Business Act, established by the Small Business 
Administration (SBA), Office of Size Standards and codified in 13 CFR 
121.201 . The FMCSA evaluated the effects of this proposed rule on 
small business entities, including as applicable small businesses, 
small non-profit organizations, and small governmental entities with 
populations under 50,000. Many of these small business entities operate 
as motor carriers of property in interstate or intrastate commerce.

[[Page 49748]]

    Goal of the SNPRM. FMCSA is required by the Hazardous Materials 
Transportation Uniform Safety Act (HMTUSA) of 1990 to develop and 
implement a new motor carrier safety permit program. The safety permit 
program is intended to enhance the safety and security of certain 
hazardous materials shipments that, if released either accidentally or 
intentionally during transportation, have the potential to kill or 
injure large numbers of people and damage property and the environment.
    Description of Actions. This SNPRM identifies specific fitness, 
financial and regulatory criteria for interstate and intrastate motor 
carriers to qualify and obtain a safety permit from FMCSA. Criteria 
include imposing operational security requirements, setting minimum 
safety and security standards, and making safety and security 
assessments of carriers to ensure compliance with operational, safety, 
and security standards. The specific hazardous materials covered by 
this permit program are: highway route-controlled quantities of a Class 
7 radioactive material; more than 25 kg (55 pounds) of a Division 1.1, 
1.2, or 1.3 (explosive) material; more than one liter (1.08 quarts) per 
package of extremely toxic-by-inhalation hazardous material; and 
compressed or refrigerated liquid methane or natural gas in bulk 
packaging of 13,248 liters (3,500 water gallons) or more.
    Identification of potentially affected small entities. The proposed 
rule would affect intrastate and interstate carriers of hazardous 
materials. The number of small carriers is determined based on the 
Small Business Administration (SBA) definition used for the RSPA 
registration file. RSPA flags the small carriers in their registration 
system based on the number of employees or annual revenue. Of the 2,434 
total carriers expected to be affected by this proposed rule, 1,816 
have been estimated to be small entities.
    In addition to small carriers, other small businesses and small 
entities potentially could be affected by the proposed permit system. 
Small businesses that provide services to small carriers, offer 
hazardous materials for transportation, or receive shipments could also 
be affected by the proposed rule. The customers and suppliers of small 
carriers could be adversely affected if a carrier were prohibited from 
shipping certain hazardous materials because a permit was denied or 
revoked. Similarly, local government entities such as police could be 
affected by the proposed hazardous materials permitting requirements. 
Local police would be notified anytime three or more hours elapsed 
after the last time that a communication was received from the driver 
of a hazardous materials vehicle covered by the permit. This probably 
would require the expenditure of law enforcement resources to 
investigate the communication lapse. The number of local police 
entities that would be involved is difficult to estimate before the 
permit program is implemented. It has been determined that 1,816 small 
motor carriers will be affected by the statutory requirements of this 
rule. Based on an expert judgment, the number of small businesses 
affected by this rule, excluding small motor carriers, was determined 
by doubling the number of small carriers affected by the statutory 
requirements. The application of expert judgment suggests that there 
could easily be two or more of these entities for each of the small 
carriers affected. Therefore, it is estimated that as many as 
approximately 4,000 small businesses could potentially be affected by 
the rule.
    Reporting and recordkeeping requirements. This SNPRM proposes 
several new or modified recordkeeping requirements. While they have not 
been fully defined, they are detailed in the section of this preamble 
entitled ``Paperwork Reduction Act.'' FMCSA has built flexibility into 
the proposed requirements, so that entities can choose the method by 
which they comply with the proposals. For example, there is no 
prescribed method of communication between the driver and the carrier. 
Carriers are permitted to use any system which meets the performance 
criteria specified. Similarly, there are no specifications for the 
manner in which carriers develop and maintain route plans, allowing 
either electronic or paper-based approaches to be used. Entities can 
assess their own situations and tailor the requirements to fit them.
    Related Federal rules and regulations. If this rule is adopted as 
proposed, FMCSA will eliminate possible conflict with two pieces of 
legislation: 49 U.S.C 5119 and U.S.C. 5105(e). 49 U.S.C. 5119 
authorizes states to participate in the Alliance. The FMCSA intends to 
automatically issue a Federal permit to a carrier that obtains a permit 
from a State that is part of the Alliance program or another state that 
has a program equivalent to the Federal permit program in operation. 
Therefore, a comparable state program will be deemed equivalent to the 
Federal HM Permit Program and no statutory conflict will exist. The 
other area is the Point of Origin Inspections for Highway Route 
Controlled Quantities (HRCQ) shipments that are required by 49 U.S.C. 
5105(e). These inspections are currently being conducted via the CVSA 
Level VI Enhanced Radioactive Materials Inspection Program. This 
current program would fulfill the requirements of this proposed rule 
and thus prevent any statutory conflict.
    Alternate proposals for small businesses. The Regulatory 
Flexibility Act directs agencies to establish exceptions and differing 
compliance standards for small businesses, where it is possible to do 
so and still meet the objectives of applicable regulatory statutes. 
There are no significant alternatives to the proposed rule that would 
accomplish the stated proposed HM permitting rule and which would 
minimize any significant economic impact of the proposed rule on small 
entities. Alternative permitting systems, such as that of the Alliance 
program, could address national permitting needs if expanded to include 
all states, but the effects on small entities would be the same as 
under the proposed rule because the same requirements and provisions 
would be in effect.
    We developed this SNPRM under the assumption that small businesses 
make up the majority of entities that will be subject to its 
provisions. Thus, we considered how to minimize the expected compliance 
costs as we developed this SNPRM.
    Based on the discussion of the potential costs of this SNPRM in the 
section of this preamble entitled ``Executive Order 12866 and DOT 
Regulatory Policies and Procedures,'' FMCSA certifies that although 
this rulemaking would impose a significant economic impact on those 
small business entities, these small entities do not represent a 
substantial number of small businesses within the trucking industry. 
The Research and Special Programs Administration (RSPA) identifies the 
small carriers in their registration system based on the number of 
employees or annual revenue, consistent with the Small Business 
Administration's Small Business Size Standards, which are matched to 
the North American Industry Classification System (NAICS). FMCSA 
estimates the costs to a small carrier to comply with this proposed 
rule to be $4,512 in the initial year, and $4,093 in subsequent years. 
A summary and breakdown of these first-year and annual costs is shown 
in Table 1. Note that the number of shipments was determined by using 
data provided by FMCSA in conjunction with U.S. Census Bureau Vehicle 
Inventory and Use Survey (VIUS) data for the number of trucks 
transporting particular HM, and assumptions regarding the anticipated 
number of

[[Page 49749]]

trips per vehicle per year. Communication requirements were assumed to 
be satisfied with a cell-phone-type service. Costs were calculated 
based on the assumption that 90 percent of the vehicles already have 
such a device and only 10 percent of the total vehicles will need new 
devices. Additionally, the table shows that the cost for route plans, 
route verification contact numbers, and permit verification is only 
half that of communication recordkeeping requirements. This is because 
the route planning activities are applied to only one half of 
shipments. Divisions 1.1 and 1.2 and HRCQ of RAM were excluded because 
all shipments of these materials have routing requirements under 
current DOT regulations. Finally, the unit cost is assumed to be a 
clerk's hourly pay of $15/hour plus fringe benefits (40%) for a total 
of $21/hour. A unit cost of $5.25 represents fifteen minutes of a 
clerk's labor.

                                    Table 1.--Cost Summary per Small Carrier
----------------------------------------------------------------------------------------------------------------
                                                                                                     Cost per
                                                                                     Cost per       carrier for
         Permit related activity                         Unit cost                  carrier for     successive
                                                                                    first year         years
----------------------------------------------------------------------------------------------------------------
Permit application......................  $21/hour..............................          $42.00             N/A
Permit renewal..........................  21/hour...............................             N/A           $5.25
Safety record compliance................  182/carrier...........................             182             N/A
Communication requirements..............  100/vehicle, 60/month service.........           1,640           1,440
Route plans; route verification contact   5.25/shipment.........................             883             883
 numbers; permit verification.
Communication record keeping              5.25/shipment.........................           1,765           1,765
 requirements.
                                         -----------------------------------------
    Total Cost per Small Carrier........  ......................................           4,512           4,093
----------------------------------------------------------------------------------------------------------------

Paperwork Reduction Act

    We submitted the information collection and recordkeeping 
requirements contained in this SNPRM to the Office of Management and 
Budget (OMB) for approval under the provisions of the Paperwork 
Reduction Act of 1995, Section 1320.8(d). Title 5, Code of Federal 
Regulations requires FMCSA to provide interested members of the public 
and affected agencies an opportunity to comment on information 
collection and recordkeeping requests. Under the Paperwork Reduction 
Act, no person is required to respond to an information collection 
unless it has been approved by OMB and displays a valid OMB control 
number.
    FMCSA currently has an approved information collection under OMB 
Control No. 2126-0013, ``Motor Carrier Identification Report'' with 
74,250 burden hours and $0 cost. There will be an increase in the 
burden for OMB Control No. 2126-0013 due to extension of the data 
collection requirements to intrastate motor carriers that transport the 
permitted hazardous materials. Using RSPA registration data, it is 
estimated that 797 intrastate motor carriers will be required to comply 
with this current data collection, with an annual burden per carrier of 
2 hours. In addition, there will be a new information collection burden 
for the new requirement to submit initial and renewal permit 
applications. This new information collection, ``Hazardous Materials 
Safety Permits,'' will be assigned an OMB control number after review 
and approval by OMB.
    The new information collection requires that the carriers provide 
estimates of the anticipated annual shipments. It is assumed that this 
information would be readily available for large carriers, which would 
apply an inflationary estimate to the prior year's number from their 
database. Small carriers would either have a ready estimate (due to a 
limited number of shipments) or, more likely, could determine their 
prior year shipment totals from data they are required to maintain to 
support their reporting under the International Fuel Tax Agreement 
(IFTA) and International Registration Plan (IRP).
    The burden to provide estimates of anticipated shipments are as 
follows: small carriers--30 minutes and large carriers--15 minutes. It 
is estimated that an additional 0.25 burden hours (15 minutes) per 
carrier will be required to complete the permit application form, 
including information, such as, carrier name and address, DOT number, 
etc. This results in a total burden of 1,671 hours as follows: [1,816 
small carriers (596 intrastate + 1,220 interstate) x 0.75 hours per 
carrier = 1,362 hours] + [618 large carriers (201 intrastate + 417 
interstate) x 0.50 hours = 309 hours].
    Permit renewal will require carriers only to check-off a few 
additional boxes on the new MCS-150B Form as well as providing 
estimates of the annual shipments. The burden hours to check-off the 
additional boxes on MC-150B Form are considered negligible. The time 
required to gather the required information for the permit renewal is 
considered to be part of the time in estimating the number of 
shipments.
    The proposed permitting program requires that carriers develop and 
maintain route plans and ensure that route verification contact numbers 
are carried in the vehicle. These provisions would add an average 
burden of 0.25 hour per day per carrier. The total burden hours were 
estimated assuming 260 working days in a year, based on an average of 
five working days per week--and one shipment per day on average. FMCSA 
realizes that some shipments are moved along the same routes repeatedly 
between given origins and destinations and new route plans would not 
need to be generated each year for these shipments. Further, the HM 
permits would be valid for two years and the carrier contact numbers 
are not expected to change frequently, if at all. Therefore, in 
estimating the burden hours involved in developing route plans and 
providing verification contact numbers and permit numbers on the 
vehicles, it was assumed that this activity will be repeated for only 
50 percent of the shipments in a given year or 130 days per year [i.e., 
0.5 x 260 = 130 days]. Thus, the burden hours for this activity is 
estimated as 79,105 hours [i.e., 2,434 (797 intrastate + 1,637 
interstate) x 32.5 hours (0.25 hours per day x 130 days per year) = 
79,105 hours].
    The proposed permitting program also requires carriers to maintain 
written records of the communication between drivers and the carriers. 
The types of information required includes time of communication, HM 
transported, vehicle, and reasons for any communication lapses. While 
drivers and carriers are required under the

[[Page 49750]]

proposed permitting program to be in frequent contact, this requirement 
places an additional reporting burden on the carriers. It is assumed 
that recording and maintaining these communications between the driver 
and carrier adds a burden of 0.25 hour per day on average per carrier. 
The total burden hours were similarly estimated assuming 260 working 
days in a year to be 158,210 hours as follows: [2,434 (797 intrastate + 
1,637 interstate) x 65 hours (0.25 hours per day x 260 days per year) = 
158,210 hours].
    The total burden hours for the proposed rule are summarized in 
Table 2.

                                        Table 2.--First-Year Burden Hours
----------------------------------------------------------------------------------------------------------------
                                                     Carriers                              Burden hours
                                 -------------------------------------------------------------------------------
                                    Intrastate      Interstate         Total        Per carrier        Total
----------------------------------------------------------------------------------------------------------------
Increased reporting under OMB                797             N/A             797               2           1,594
 Control No. 2126-0013..........
Annual shipment estimates:
    Small carriers..............             596           1,220           1,816            0.75           1,362
    Large carriers..............             201             417             618            0.50             309
Written route plans,                         797           1,637           2,434            32.5          79,105
 verification number details,
 copy of permits................
Maintaining communications                   797           1,637           2,434              65         158,201
 records........................
                                 -----------------
    Total.......................  ..............  ..............  ..............  ..............         240,580
----------------------------------------------------------------------------------------------------------------

    In subsequent years, we estimate that burden hours would include 
the permit renewal application and the time to provide shipment 
estimates, route plans, and communication records as indicated above. 
Given the biennial renewal process, the burden hours for application 
renewal and shipment estimates would be half as many in subsequent 
years. However, the burden hours for maintaining route plans and 
communication records will be the same for all years. Subsequent-year 
burden hour estimates are shown in Table 3.

                                     Table 3.--Subsequent-Year Burden Hours
----------------------------------------------------------------------------------------------------------------
                                                     Carriers                              Burden hours
                                 -------------------------------------------------------------------------------
                                    Intrastate      Interstate         Total        Per carrier        Total
----------------------------------------------------------------------------------------------------------------
Increased reporting under OMB                797             N/A             797               1             797
 Control No. 2126-0013..........
Annual shipment estimates:
    Small carriers..............             596           1,220           1,816           0.375             681
    Large carriers..............             201             417             618            0.25           154.5
Written route plans,                         797           1,637           2,434            32.5          79,105
 verification number details,
 copy of permit:................
Maintaining communications                   797           1,637           2,434              65         158,210
 records........................
                                 -----------------
    Total.......................  ..............  ..............  ..............  ..............         238,151
----------------------------------------------------------------------------------------------------------------

    We estimate that the new total information collection and 
recordkeeping burden resulting from the additional Motor Carrier 
Identification Reports and permit applications under this rule are as 
follows.

Motor Carrier Identification Report

[OMB No. 2126-0013]
    Total Annual Number of Respondents: 275,297.
    Total Annual Responses: 275,297.
    Total Annual Burden Hours: 75,844.
    Total Annual Burden Cost: $0.

Hazardous Materials Permit

[OMB No. 2126-xxxx]
    First Year Annual Burden:
    Total Annual Number of Respondents: 2,434.
    Total Annual Responses: 1,835,367.
    Total Annual Burden Hours: 240,580.
    Total Annual Burden Cost: $0.
    Subsequent Year Burden:
    Total Annual Number of Respondents: 2,434.
    Total Annual Responses: 1,835,367.
    Total Annual Burden Hours: 238,151.
    Total Annual Burden Cost: $0.
    Send comments to the Office of Information and Regulatory Affairs, 
Office of Management and Budget, 725 Seventeenth Street, NW., 
Washington, DC 20503, Attention: DOT Desk Officer. We particularly 
request your comments on whether the collection of information is 
necessary for the FMCSA to meet its goals of reducing truck crashes, 
including whether the information is useful to this goal; the accuracy 
of the estimate of the burden of the information collection; ways to 
enhance the quality, utility and clarity of the information collected; 
and ways to minimize the burden of the collection of information on 
respondents, including the use of automated collection techniques or 
other forms on information technology.

National Environmental Policy Act

    FMCSA has performed an Environmental Assessment that is available 
for review in the public docket on the DMS Web site, 
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov.
 Based on the assessment, FMCSA has determined that this 
SNPRM rule does not have any significant negative impacts to the 
environment and may result in a net benefit from increased protection 
and monitoring of hazardous materials shipments. Therefore, we find 
that there are no significant environmental impacts associated with 
this SNPRM. The agency solicits comments on this issue.

[[Page 49751]]

Executive Order 12988 (Civil Justice Reform)

    This action would meet 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 12612 (Federalism)

    This proposed action has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132 dated August 
4, 1999, as discussed under ``State permits,'' above, where the 
applicable law and the concerns previously expressed by State officials 
are set forth.
    Federal hazardous material transportation law allows States, 
political subdivisions, and Indian tribes to continue their permit 
requirements after the implementation of a Federal safety permit 
program. To the extent that a State permit program is equivalent to the 
Federal requirements, no preemption issues would arise. To the extent 
that there are differences between Federal and non-Federal 
requirements, the preemption provisions in 49 U.S.C. 5125 will continue 
to apply to non-Federal permit requirements, just as those criteria 
have applied in the past.
    For these reasons, FMCSA believes that nothing in this proposed 
rule, if adopted, will directly preempt any State law or regulation or 
have a substantial direct effect or sufficient federalism implications 
that would limit the policymaking discretion of the States. FMCSA 
invites States and other interested parties to comment on whether they 
believe any State permit requirement would be affected by the adoption 
of this proposed rule.

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'' (April 23, 1997, 62 FR 1985). This proposed rule is not an 
economically significant rule because the FMCSA has determined that the 
proposed rule, if adopted, will not present an environmental risk to 
health or safety that may disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217 Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Executive Order 13166 (Limited English Proficiency)

    Executive Order 13166, ``Improving Access to Services for Persons 
With Limited English Proficiency'' (LEP), requires each Federal agency 
to examine the services it provides and develop reasonable measures to 
ensure that persons seeking government services but limited in their 
English proficiency can meaningfully access these services consistent 
with, and without unduly burdening, the fundamental mission of the 
agency.
    Its purpose is to clarify for Federal-fund recipients the steps 
those recipients can take to avoid administering programs in a way that 
results in discrimination on the basis of national origin. Thus, we 
believe that this proposed action complies with the principles 
enunciated in the Executive Order.

List of Subjects

49 CFR Part 385

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Reporting and recordkeeping 
requirements; Safety fitness procedures.

49 CFR Part 390

    Highway safety, Intermodal transportation, Motor carriers, Motor 
vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 397

    Administrative practice and procedure, Highway safety, 
Intergovernmental relations, Motor carriers, Parking, Radioactive 
materials, Reporting and recordkeeping requirements, Tires.

    In consideration of the foregoing, the Federal Motor Carrier Safety 
Administration proposes to amend 49 CFR chapter III as set forth below:

PART 385--SAFETY FITNESS PROCEDURES [AMENDED]

    1. Revise the authority citation for part 385 to read as follows:

    Authority: 49 U.S.C. 113, 504, 521(b), 5105(c), 5109, 5113, 
13901-13905, 31136, 31144, 31148, and 31502; Sec. 350 of Pub. L. 
107-87; and 49 CFR 1.73.

    2. Amend Sec.  385.1 by redesignating paragraph (c) as paragraph 
(d) and by adding a new paragraph (c) to read as follows:


Sec.  385.1  Purpose and scope.

* * * * *
    (c) This part establishes the safety permit program for a motor 
carrier to transport the types and quantities of hazardous materials 
listed in Sec.  385.403 of this part.
* * * * *
    3. Add a new subpart E to this part 385 to read as follows:
Subpart E--Hazardous Materials Safety Permits
Sec.
385.401 What are the definitions of terms used in this subpart?
385.403 Who must hold a safety permit?
385.405 How does a motor carrier apply for a safety permit?
385.407 What conditions must a motor carrier satisfy for FMCSA to 
issue a safety permit?
385.409 When may a temporary safety permit be issued to a motor 
carrier?
385.411 Must a motor carrier obtain a safety permit if it has a 
State permit?
385.413 What happens if a motor carrier receives a proposed safety 
rating that is less than satisfactory?
385.415 What operational requirements apply to the transportation of 
a hazardous material for which a permit is required?
385.417 Is a motor carrier's safety permit number available to 
others?
385.419 How long is a safety permit effective?
385.421 Under what circumstances will a safety permit be subject to 
revocation or suspension by the FMCSA?
385.423 Does a motor carrier have a right to an administrative 
review of a denial, suspension, or revocation of a safety permit?

Subpart E--Hazardous Materials Safety Permits


Sec.  385.401  What are the definitions of terms used in this subpart?

    (a) The definitions in parts 390 and 385 of this subchapter apply 
to this subpart, except where otherwise specifically noted.
    (b) As used in this part,
    Hazardous material has the same meaning as under Sec.  171.8 of 
this title, a substance or material that the Secretary of 
Transportation has determined as capable of posing an unreasonable risk 
to health, safety, and property when transported in commerce, and has 
designated as hazardous under section 5103 of Federal hazardous 
materials

[[Page 49752]]

transportation law (439 U.S.C. 5103). The term includes hazardous 
substances, hazardous wastes, marine pollutants, elevated temperature 
materials, materials designated as hazardous in the Hazardous Materials 
Table (see 49 CFR 172.101), and materials that meet the defining 
criteria for hazard classes and divisions in part 173 of subchapter C 
of this chapter.
    Hazmat employee has the same meaning as under Sec.  171.8 of this 
title, a person who is employed by a hazmat employer as defined under 
Sec.  171.8 of this title, and who in the course of employment directly 
affects hazardous materials transportation safety. This term includes 
an owner-operator of a motor vehicle which transports hazardous 
materials in commerce. This term includes an individual, including a 
self-employed individual, employed by a hazmat employer who, during the 
course of employment:
    (1) Loads, unloads, or handles hazardous materials;
    (2) Manufactures, tests, reconditions, repairs, modifies, marks, or 
otherwise represents containers, drums, or packaging as qualified for 
use in the transportation of hazardous materials;
    (3) Prepares hazardous materials for transportation;
    (4) Is responsible for safety of transporting hazardous materials; 
or
    (5) Operates a vehicle used to transport hazardous materials.
    Liquefied natural gas (LNG) means a Division 2.1 liquefied natural 
gas material that is transported in a liquid state with a methane 
content of 85% or more.
    Safety permit means a document issued by FMCSA that contains a 
permit number and confers authority to transport in commerce the 
hazardous materials listed in Sec.  385.403(a) of this subpart.
    Shipment means the offering or loading of hazardous material at one 
loading facility using one transport vehicle, or the transport of that 
transport vehicle.


Sec.  385.403  Who must hold a safety permit?

    After the date following January 1, 2005 that a motor carrier is 
required to file a Motor Carrier Identification Report (Form MCS-150) 
according to the schedule set forth in Sec.  390.19(a) of this 
subchapter, the motor carrier may not transport in interstate or 
intrastate commerce any of the following hazardous materials, in the 
quantity indicated for each, unless the motor carrier holds a safety 
permit:
    (a) A highway route-controlled quantity of a Class 7 (radioactive) 
material, as defined in Sec.  173.403 of this title;
    (b) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3 
(explosive) material;
    (c) More than one liter (1.08 quarts) per package of a ``material 
poisonous by inhalation,'' as defined in Sec.  171.8 of this title, 
that meets the criteria for ``hazard zone A,'' as specified in 
Sec. Sec.  173.116(a) or 173.133(a) of this title; or
    (d) A shipment of liquefied natural gas in a packaging having a 
capacity equal to or greater than 13,248 L (3,500 gallons).


Sec.  385.405  How does a motor carrier apply for a safety permit?

    (a) Application form(s). To apply for a new safety permit or 
renewal of the safety permit, a motor carrier must complete and submit 
Form MCS-150B, HM Permit Application. If the motor carrier does not 
have a current U.S. DOT identification number, it must also submit Form 
MCS-150, Motor Carrier Identification Report (see Sec.  390.19 of this 
subchapter). A new entrant must also submit Form MCS-150A, Safety 
Certification for Application for U.S. DOT Number (see subpart D of 
this part).
    (b) Where to get forms and instructions. The forms listed in 
paragraph (a) of this section and instructions for completing them, may 
be obtained on the Internet at 
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fmcsa.dot.gov 
or by contacting FMCSA at Federal Motor Carrier Safety Administration, MC-
RIS, Room 8214, 400 7th St. SW., Washington, DC 20590, Telephone: 1-
800-802-5668.
    (c) Signature and certification. An official of the motor carrier 
must sign each of these forms and certify that the information is 
correct.
    (d) Updating information on Form MCS-150B. A motor carrier that 
holds a safety permit must report to the FMCSA in writing any change in 
the information on its Form MCS-150B, within 30 days of the change, 
using the contact information in paragraph (b) of this section.


Sec.  385.407  What conditions must a motor carrier satisfy for FMCSA 
to issue a safety permit?

    (a) Satisfactory safety rating. The motor carrier must have a 
``satisfactory'' safety rating assigned by either FMCSA, pursuant to 
the Safety Fitness Procedures of part 385 of this subchapter, or the 
State in which the motor carrier has its principal place of business, 
if the State has adopted and implemented safety fitness procedures that 
are equivalent to the procedures in subpart A of part 385 of this 
subchapter.
    (b) Satisfactory security program. The motor carrier must establish 
that it has a satisfactory security program, including:
    (1) A security plan meeting the requirements of part 172, subpart I 
of this title. The security plan must address how the carrier will 
ensure the security of the written route plan required by this part;
    (2) A communications system installed on each motor vehicle used to 
transport a hazardous material listed in Sec.  385.403(a) of this 
subpart that enables the vehicle operator to immediately contact the 
motor carrier during the course of transportation of the hazardous 
material, and each operator must be trained in the use of the 
communications system; and
    (3) Hazmat employees who have all successfully completed the 
security training required in Sec.  172.704(a)(4) of this title.
    (c) Registration with RSPA. The motor carrier must be registered 
with RSPA in accordance with subpart G of part 107 of this title.


Sec.  385.409  When may a temporary safety permit be issued to a motor 
carrier?

    (a) Temporary safety permit. If a motor carrier does not have a 
safety fitness rating, FMCSA may issue a temporary safety permit. To 
obtain a temporary safety permit a motor carrier must certify on Form 
MCS-150B that it is operating in full compliance with the HMRs, the 
FMCSRs, or comparable State regulations, and the minimum financial 
responsibility requirements in part 387 of this subchapter or State 
regulations, whichever is applicable.
    (b) FMCSA will not issue a temporary safety permit to a motor 
carrier that meets any of the following conditions. The motor carrier:
    (1) Does not certify that it has a satisfactory security program as 
required in Sec.  385.407(b) of this subpart;
    (2) Has a crash rate in the top 30% of the national average as 
found in the FMCSA Motor Carrier Management Information System (MCMIS);
    (3) Has a driver, vehicle, hazardous material, or total out-of-
service rate in the top 30% of the national average as found in the 
FMCSA MCMIS; or
    (4) Is on the FMCSA SafeStat List A, B, C, or D.
    (c) A temporary safety permit shall be valid for 270 days after the 
date of issuance or until the motor carrier is assigned a safety 
rating, whichever occurs first.
    (1) A motor carrier that receives a satisfactory safety rating will 
be issued a safety permit.
    (2) A motor carrier that receives a less than satisfactory safety 
rating, is

[[Page 49753]]

ineligible for a safety permit and will be subject to revocation of its 
temporary safety permit.
    (d) If a motor carrier has not received a safety rating within the 
270-day time period, the FMCSA will extend the effective date of the 
temporary safety permit for an additional 60 days, provided the motor 
carrier demonstrates that it is continuing to operate in full 
compliance with the FMCSRs and HMRs.


Sec.  385.411  Must a motor carrier obtain a safety permit if it has a 
State permit?

    Yes. However, if FMCSA is able to verify that a motor carrier has a 
safety permit issued by a State under a program that FMCSA has 
determined is equivalent to the provisions of this subpart, FMCSA will 
immediately issue a safety permit to the motor carrier upon receipt of 
an application in accordance with Sec.  385.405 of this subpart, 
without further inspection or investigation.


Sec.  385.413  What happens if a motor carrier receives a proposed 
safety rating that is less than satisfactory?

    (a) If a motor carrier does not already have a safety permit, it 
will not be issued a safety permit unless and until a satisfactory 
safety rating is issued to the motor carrier.
    (b) If a motor carrier holds a safety permit (including a temporary 
safety permit), the safety permit will be subject to revocation or 
suspension (see Sec.  385.421 of this subpart).


Sec.  385.415  What operational requirements apply to the 
transportation of a hazardous material for which a permit is required?

    (a) Information that must be carried in the vehicle. During 
transportation, the following must be maintained in each motor vehicle 
that transports a hazardous material listed in Sec.  385.403(a) of this 
subpart and, upon request, made available to an authorized official of 
a Federal, State, or local government agency:
    (1) A copy of the safety permit or another document showing the 
permit number;
    (2) A written route plan that meets the requirements of Sec.  
397.101 of this subchapter (for Class 7 (radioactive) materials) or 
Sec.  397.67 of this subchapter (for non-radioactive materials); and
    (3) The telephone number of an employee of the motor carrier who 
has a copy of the route plan required in paragraph (a)(2) of this 
section and is able to determine whether the motor vehicle is on the 
route specified in that route plan. This phone number must be monitored 
by the motor carrier at all times the vehicle is in transit.
    (b) Inspection of vehicle transporting Class 7 (radioactive) 
materials. Before a motor carrier may transport a highway route 
controlled quantity of a Class 7 (radioactive) material, the motor 
carrier must have a pre-trip inspection performed on each motor vehicle 
to be used to transport a highway route controlled quantity of a Class 
7 (radioactive) material, in accordance with the following 
requirements:
    (1) The inspection must be performed by a inspector who--
    (i) Is employed by or under contract to a Federal, State, or local 
government, and
    (ii) Has completed a commercial vehicle inspection-training program 
of at least 104 hours in duration, including 24 hours on the inspection 
of vehicles transporting HRCQ of Class 7 (radioactive) materials and 
conducting radiological surveys.
    (2) The inspection must determine whether the motor carrier, 
driver(s) and the motor vehicle are in compliance with requirements 
governing:
    (i) Commercial driver's licenses, in part 383 of this subchapter;
    (ii) Qualifications and hours of service of drivers, in parts 391 
and 395 of this subchapter, or compatible State requirements that are 
applicable;
    (iii) The mechanical condition of the vehicle, in parts 393 and 396 
of this subchapter, or compatible State requirements that are 
applicable;
    (iv) The requirements in the Hazardous Materials Regulations (49 
CFR parts 171 through 180) and compatible State requirements applicable 
to the acceptance and transportation of a highway route controlled 
quantity of a Class 7 (radioactive) material, including the limits for 
external radiation, heat, and contamination specified in Sec. Sec.  
173.441, 173.442, and 173.443 of this title;
    (v) Registration and payment of the registration fee, in subpart G 
of part 107 of this title; and
    (vi) Requirements for motor carriers and drivers, in subpart D of 
part 397 of this title.
    (3) If any violation of the requirements in paragraph (b)(2) of 
this section is discovered, the vehicle may not begin transportation 
until the violation has been corrected. If any violation of the 
requirements in paragraph (b)(2)(iii) of this section is discovered, 
the vehicle must be placed ``out of service'' and may not be moved 
until completion of all repairs necessary for compliance with the 
requirements in paragraph (b)(2)(iii) of this section.
    (4) If the inspector determines that the driver(s) and vehicle are 
in compliance with all the requirements set forth in paragraph (b)(2) 
of this section, the inspector shall affix to the vehicle a decal 
indicating the nature of the inspection and containing the date of the 
inspection. This decal must be removed upon delivery of the shipment to 
the consignee.
    (c) Additional requirements. (1) The operator of a motor vehicle 
used to transport a hazardous material listed in Sec.  385.403(a) of 
this subpart must:
    (i) Follow the written route plan required by paragraph (a)(2) of 
this section, unless an alternate route is required by a law 
enforcement official or emergency conditions (in which case the 
operator must amend the written route plan to show the deviation); and
    (ii) At least once each two hours during transportation of a 
hazardous material for which a safety permit is required, and any time 
there is a deviation from the written route plan required by paragraph 
(b) of this section, communicate with the motor carrier by means of the 
communications system required by Sec.  385.407(b)(2) of this subpart.
    (2) The motor carrier must contact law enforcement authorities at 
any time more than three hours have elapsed since the last 
communication from the operator of a motor vehicle used to transport a 
hazardous material listed in Sec.  385.403(a) of this subpart. The 
motor carrier must maintain a record for 6 months after the initial 
acceptance of a shipment of hazardous material for which a safety 
permit is required, containing the name of the operator, identification 
of the vehicle, hazardous material(s) being transported, the date and 
time of each communication, and each period of more than two hours 
without a communication with the operator including a statement of the 
facts or conditions that prevented communication for more than two 
hours.


Sec.  385.417  Is a motor carrier's safety permit number available to 
others?

    Upon request, a motor carrier must provide the number of its safety 
permit to a person who offers a hazardous material listed in Sec.  
385.403(a) of this subpart for transportation in commerce. A motor 
carrier's permit number will also be available to the public on the 
FMCSA Safety and Fitness Electronic Records System at http://www.safer.fmcsa.dot.gov
.


Sec.  385.419  How long is a safety permit effective?

    Unless suspended or revoked, a safety permit (other than a 
temporary safety permit) is effective for two years, except that:

[[Page 49754]]

    (a) a safety permit will be subject to revocation if a motor 
carrier fails to submit a renewal application (Form MCS-150B) in 
accordance with the schedule set forth for filing Form MCS-150 in Sec.  
390.19(a)(2) and (3) of this subchapter; and
    (b) a safety permit will remain in effect pending FMCSA's 
processing of an application for renewal if a motor carrier submits the 
required application (Form MS-150B) in accordance with the schedule set 
forth in Sec.  390.19(a)(2) and (3) of this subchapter.


Sec.  385.421  Under what circumstances will a safety permit be subject 
to revocation or suspension by the FMCSA?

    (a) Grounds. A safety permit will be subject to revocation or 
suspension by the FMCSA for the following reasons:
    (1) A motor carrier fails to submit a renewal application (Form 
MCS-150B) in accordance with the schedule set forth in Sec.  
390.19(a)(2) and (3) of this subchapter;
    (2) A motor carrier provides any false or misleading information on 
its application (Form MCS-150B), Form MCS-150A (when required), or an 
update of information on its Form MCS-150B (see Sec.  385.405(e) of 
this subpart);
    (3) A motor carrier is issued a final safety rating that is less 
than satisfactory;
    (4) A motor carrier fails to maintain a satisfactory security plan 
as set forth in Sec.  385.407(b) of this subpart;
    (5) A motor carrier fails to comply with applicable requirements in 
the FMCSRs, the HMRs, or compatible State requirements governing the 
transportation of hazardous materials, in a manner that shows that the 
motor carrier is not fit to transport or offer for transportation the 
hazardous materials listed in Sec.  385.403(a) of this subpart;
    (6) A motor carrier fails to comply with an out-of-service order;
    (7) A motor carrier fails to comply with any other order issued 
under the FMCSRs, the HMRs, or compatible State requirements governing 
the transportation of hazardous materials, in a manner that shows that 
the motor carrier is not fit to transport or offer for transportation 
the hazardous materials listed in Sec.  385.403(a) of this subpart;
    (8) A motor carrier fails to maintain the minimum financial 
responsibility required by Sec.  387.9 or an applicable State 
requirement;
    (9) A motor carrier fails to maintain current hazardous materials 
registration with the Research and Special Programs Administration; or
    (10) A motor carrier loses its operating rights or has its 
registration suspended in accordance with Sec.  386.83 or Sec.  386.84 
of this subchapter for failure to pay a civil penalty or abide by a 
payment plan.
    (b) Effective date of suspension or revocation. A suspension or 
revocation of a safety permit is effective:
    (1) immediately when FMCSA determines that an imminent hazard 
exists, when FMCSA issues a final safety rating that is less than 
satisfactory, or when a motor carrier loses its operating rights or has 
its registration suspended for failure to pay a civil penalty or abide 
by a payment plan;
    (2) 30 days after service of a written notification that FMCSA 
proposes to suspend or revoke a safety permit, if the motor carrier 
does not submit a written request for administrative review within that 
time period; or
    (3) as specified in Sec.  385.423(c) of this subpart, when the 
motor carrier submits a written request for administrative review of 
FMCSA's proposal to suspend or revoke a safety permit.


Sec.  385.423  Does a motor carrier have a right to an administrative 
review of a denial, suspension, or revocation of a safety permit?

    A motor carrier has a right to an administrative review pursuant to 
the following procedures and conditions:
    (a) Less than satisfactory safety rating. If a motor carrier is 
issued a proposed safety rating that is less than satisfactory, it has 
the right to request (1) an administrative review of a proposed safety 
rating, as set forth in Sec.  385.15 of this part, and (2) a change to 
a proposed safety rating based on corrective action, as set forth in 
Sec.  385.17 of this part. After a motor carrier has had an opportunity 
for administrative review of, or change to, a proposed safety rating, 
FMCSA's issuance of a final safety rating constitutes final agency 
action, and a motor carrier has no right to further administrative 
review of FMCSA's denial, suspension, or revocation of a safety permit 
when the motor carrier has been issued a final safety rating that is 
less than satisfactory.
    (b) Failure to pay civil penalty or abide by payment plan. If a 
motor carrier is notified that failure to pay a civil penalty will 
result in suspension or termination of its operating rights, it has the 
right to an administrative review of that proposed action in a show 
cause proceeding, as set forth in Sec.  386.83(b) or Sec.  386.84(b) of 
this subchapter. The decision by FMCSA's Chief Safety Officer in the 
show cause proceeding constitutes final agency action, and a motor 
carrier has no right to further administrative review of FMCSA's 
denial, suspension, or revocation of a safety permit when the motor 
carrier has lost its operating rights or had its registration suspended 
for failure to pay a civil penalty or abide by a payment plan.
    (c) Other grounds. Under circumstances other than those set forth 
in paragraphs (a) and (b) of this section, a motor carrier may submit a 
written request for administrative review within 30 days after service 
of a written notification that FMCSA has denied a safety permit, that 
FMCSA has immediately suspended or revoked a safety permit or that 
FMCSA has proposed to suspend or revoke a safety permit. The rules for 
computing time limits for service and requests for extension of time in 
Sec. Sec.  386.31 and 386.33 apply to the proceedings on a request for 
administrative review under this section.
    (1) The motor carrier must send or deliver its written request for 
administrative review to FMCSA Chief Safety Officer, with a copy to 
FMCSA Chief Counsel, at the following addresses:

FMCSA Chief Safety Officer, Federal Motor Carrier Safety 
Administration, c/o Adjudications Counsel (Room 8302A), 400 Seventh 
Street, SW., Washington, DC 20590.
FMCSA Chief Counsel, Federal Motor Carrier Safety Administration, 
Office of the Chief Counsel, Room 8125, 400 Seventh Street, SW., 
Washington, DC 20590.

    (2) A request for administrative review must state the specific 
grounds for review and include all information, evidence, and arguments 
upon which the motor carrier relies to support its request for 
administrative review.
    (3) Within 30 days after service of a written request for 
administrative review, the Office of the Chief Counsel shall submit to 
the Chief Safety Officer a written response to the request for 
administrative review. The Office of the Chief Counsel must serve a 
copy of its written response on the motor carrier requesting 
administrative review.
    (4) The Chief Safety Officer may decide a motor carrier's request 
for administrative review on the written submissions, hold a hearing 
personally, or refer the request to an administrative law judge for a 
hearing and recommended decision. The Chief Safety Officer or 
administrative law judge is authorized to specify, and must notify the 
parties of, specific procedural rules to be followed in the proceeding 
(which may include the procedural rules in Part 386 of this subchapter 
that are considered appropriate).

[[Page 49755]]

    (5) If a request for administrative review is referred to an 
administrative law judge, the recommended decision of the 
administrative law judge becomes the final decision of the Chief Safety 
Officer 45 days after service of the recommended decision is served, 
unless either the motor carrier or the Office of the Chief Counsel 
submits a petition for review to the Chief Safety Officer (and serves a 
copy of its petition on the other party) within 15 days after service 
of the recommended decision. In response to a petition for review of a 
recommended decision of an administrative law judge:
    (i) The other party may submit a written reply within 15 days of 
service of the petition for review.
    (ii) The Chief Safety Officer may adopt, modify, or set aside the 
recommended decision of an administrative law judge, and may also 
remand the petition for review to the administrative law judge for 
further proceedings.
    (6) The Chief Safety Officer will issue a final decision on any 
request for administrative review when:
    (i) The request for administrative review has not been referred to 
an administrative law judge;
    (ii) A petition for review of a recommended decision by an 
administrative law judge has not been remanded to the administrative 
law judge for further proceedings; or
    (iii) An administrative law judge has held further proceedings on a 
petition for review and issued a supplementary recommended decision.
    (7) The decision of the Chief Safety Officer (including a 
recommended decision of an administrative law judge that becomes the 
decision of the Chief Safety Officer under paragraph (c)(5) of this 
section) constitutes final agency action, and there is no right to 
further administrative reconsideration or review.
    (8) Any appeal of a final agency action under this section must be 
taken to an appropriate United States Court of Appeals. Unless the 
Court of Appeals issues a stay pending appeal, the final agency action 
shall not be suspended while the appeal is pending.
    4. Appendix B to Part 385 is amended by adding to the List of Acute 
and Critical Regulations under Paragraph VII the following information 
in numerical order between Sec. Sec.  171.16 and 177.800:

APPENDIX B TO PART 385--EXPLANATION OF SAFETY RATING PROCESS

* * * * *

VII. List of Acute and Critical Regulations


Sec.  172.313(a)  Accepting for transportation or transporting a 
package containing a poisonous-by-inhalation material that is not 
marked with the words ``Inhalation Hazard'' (acute).


Sec.  172.704(a)(4)  Failing to provide security awareness training 
(critical).


Sec.  172.704(a)(5)  Failing to provide in-depth security awareness 
training (critical).


Sec.  172.800(b)  Offering or transporting HM without a security plan 
that conforms to Subpart I requirements (acute).


Sec.  172.800(b)  Failure to adhere to a required security plan 
(acute).


Sec.  172.802(b)  Failure to make copies of security plan available to 
hazmat employees (critical).


Sec.  173.24(b)(1)  Accepting for transportation or transporting a 
package that has an identifiable release of a hazardous material to the 
environment (acute).


Sec.  173.421(a)  Accepting for transportation or transporting a Class 
7 (radioactive) material described, marked, and packaged as a limited 
quantity when the radiation level on the surface of the package exceeds 
0.005mSv/hour (0.5 mrem/hour) (acute).


Sec.  173.431(a)  Accepting for transportation or transporting in a 
Type A packaging a greater quantity of Class 7 (radioactive) material 
than authorized (acute).


Sec.  173.431(b)  Accepting for transportation or transporting in a 
Type B packaging a greater quantity of Class 7 (radioactive) material 
than authorized (acute).


Sec.  173.441  Accepting for transportation or transporting a package 
containing Class 7 (radioactive) material with external radiation 
exceeding allowable limits (acute).


Sec.  173.442(b)  Accepting for transportation or transporting a 
package containing Class 7 (radioactive) material when the temperature 
of the accessible external surface of the loaded package exceeds 
50[deg]C (122[deg]F) in other than an exclusive use shipment, or 
85[deg]C (185[deg]F) in an exclusive use shipment (acute).


Sec.  173.443  Accepting for transportation or transporting a package 
containing Class 7 (radioactive) material with removable contamination 
on the external surfaces of the package in excess of permissible limits 
(acute).

    4a. Appendix B to to Part 385 is amended by adding to the List of 
Acute and Critical Regulations under Paragraph VII the following 
information in numerical order after Sec.  177.800(c):


Sec.  177.801  Accepting for transportation or transporting a forbidden 
material (acute).

    4b. Appendix B to Part 385 is amended by adding to the List of 
Acute and Critical Regulations under Paragraph VII the following 
information in numberical order after Sec.  177.823(a):


Sec.  177.835(a)  Loading or unloading a Class 1 (explosive) material 
with the engine running (acute).


Sec.  177.835(c)  Accepting for transportation or transporting Division 
1.1 or 1.2 (explosive) materials in a motor vehicle or combination of 
vehicles that is not permitted (acute).


Sec.  177.835(j)  Transferring Division 1.1, 1.2, or 1.3 (explosive) 
materials between containers or motor vehicles when not permitted 
(acute).

* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

    5. The authority citation for Part 390 continues to read as 
follows:

    Authority: 49 U.S.C. 13301, 13902, 31131, 31133, 31502, and 
31504, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); and 
49 CFR 1.73.

Sec.  390.3  General applicability.

* * * * *
    (g) Motor carriers that transport hazardous materials in intrastate 
commerce. The rules in the following provisions of subchapter B of this 
chapter apply to motor carriers that transport hazardous materials in 
intrastate commerce and to the motor vehicles that transport hazardous 
materials in intrastate commerce:
    (1) Subparts A, C, and E of Part 385, for carriers subject to the 
requirements of Sec.  385.403(a) of this subchapter.
    (2) Part 386, Rules of practice for motor carrier, broker, freight 
forwarder, and hazardous materials proceedings.
    (3) Part 387, Minimum Levels of Financial Responsibility for Motor 
Carriers, to the extent provided in Sec.  387.3 of this subchapter.
    (4) Section 390.19, Motor carrier identification report, and Sec.  
390.21, Marking of CMVs, for carriers subject to the requirements of 
Sec.  385.403(a) of this subchapter. Intrastate motor carriers 
operating prior to January 1, 2005, are excepted from Sec.  
390.19(a)(1).

PART 397--TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND 
PARKING RULES [AMENDED]

    7. The authority citation for Part 397 continues to read as 
follows:

    Authority: 49 U.S.C. 322, 5112; 49 CFR 1.73. Subpart A also 
issued under 49 U.S.C. 5103, 31136, 31502, and 49 CFR 1.53. Subparts 
C, D, and E also issued under 49 U.S.C. 5112, 5125.

    8. Amend Sec.  397.67 to revise paragraph (d) to read as follows:

[[Page 49756]]

Sec.  397.67  Motor carrier responsibility for routing.

* * * * *
    (d) Before a motor carrier requires or permits the operation of a 
motor vehicle containing any of the following hazardous materials, the 
carrier or its agent shall prepare and furnish to the vehicle operator 
a written route plan that complies with this section:
    (1) A Division 1.1, 1.2, or 1.3 (explosive) material (see Sec.  
173.50 of this title);
    (2) More than one liter (1.08 quarts) per package of a ``material 
poisonous by inhalation,'' as defined in Sec.  171.8 of this title, 
that meets the criteria for ``hazard zone A,'' as specified in 
Sec. Sec.  173.116(a) or 173.133(a) of this title); or
    (3) A shipment of liquefied natural gas in a bulk packaging (see 
Sec.  171.8 of this title) having a capacity equal to or greater than 
13,248 L (3,500 gallons) for liquids or gases.

    Issued on: August 11, 2003.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 03-20887 Filed 8-18-03; 8:45 am]