FR Doc 03-28175
[Federal Register: November 7, 2003 (Volume 68, Number 216)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 383
[Docket No. FMCSA-2001-11117]
Limitations on the Issuance of Commercial Driver's Licenses With
a Hazardous Materials Endorsement
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Interim final rule; delay of compliance date; request for
SUMMARY: The FMCSA amends the Federal Motor Carrier Safety Regulations
(FMCSRs) prohibiting States from issuing, renewing, transferring or
upgrading a commercial driver's license (CDL) with a hazardous
materials (hazmat) endorsement unless the Transportation Security
Administration (TSA) has first conducted a background records check of
the applicant and determined the applicant does not pose a security
risk warranting denial of the hazardous materials endorsement. The
compliance date provisions being revised require States to collect
fingerprints from individuals applying for, renewing, upgrading or
transferring a hazmat endorsement for a CDL beginning November 3, 2003.
FMCSA and TSA are changing that date to April 1, 2004, and TSA may
postpone that date, in individual cases, to not later than December 1,
DATES: Effective: This rule is effective on November 3, 2003.
Compliance: State compliance with this rule is required beginning April
Comments: Comments must be received on or before January 6, 2004.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA--2001-11117 by any of the following methods:
[sbull] Web site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov.
Follow the instructions for
submitting comments on the DOT electronic docket site.
[sbull] Fax: 1-202-493-2251.
[sbull] Mail: Docket Management Facility; U.S. Department of
Transportation, 400 Seventh Street, SW., Nassif Building, Room PL-401,
Washington, DC 20590-0001.
[sbull] Hand delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW., Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal Holidays.
[sbull] Federal eRulemaking Portal: Go to
Follow the online instructions for submitting
Instructions: All submissions must include the agency name and
docket number or Regulatory Identification Number (RIN) for this
rulemaking. Note that all comments received will be posted without
including any personal information provided. Please see the Privacy Act heading for further information.
Docket: For access to the docket to read background documents or
comments received, go to
at any time or to Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW.,
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal Holidays.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act
Statement in the Federal Register published on April 11, 2000 (Volume
65, Number 70; Pages 19477) or you may visit
Comments received after the comment closing date will be included
in the docket and we will consider late comments to the extent
practicable. The FMCSA may, however, issue a final rule at any time
after the close of the comment period.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, Office of Safety
Programs, (202) 366-9579, FMCSA, 400 7th Street, SW., Washington, DC
20590. Office hours are from 8:30 a.m. to 5 p.m., e.t., Monday through
Friday, except Federal holidays.
This IFR is being adopted without prior notice and public comment.
However, interested parties are invited to participate in this
rulemaking by submitting written data, views, or arguments. All
comments received, as well as a report summarizing each substantive
public contact with FMCSA personnel on this rulemaking, will be filed
in the public docket. The docket is available for public inspection
before and after the comment closing date.
See ADDRESSES above for information on how to submit comments.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act (SBREFA) of
1996 requires FMCSA to comply with small entity requests for
information or advice about compliance with statutes and regulations
within FMCSA's jurisdiction. Any small entity that has a question
regarding this document may contact the person listed in the FOR
FURTHER INFORMATION CONTACT section for information or advice. You can
get further information regarding SBREFA on the Small Business
Administration's web page at
On September 11, 2001, several terrorist attacks were made against
the United States. Those attacks resulted in catastrophic human
casualties and property damage. In response to those attacks, the
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act was
enacted on October 26, 2001.\1\ Section 1012 of the USA PATRIOT Act
amended 49 U.S.C. Chapter 51 by adding a new section 5103a titled
``Limitation on issuance of hazmat licenses.'' Section 5103a(a)(1)
\1\ Pub. L. 107-56, October 25, 2001, 115 Stat. 272.
A State may not issue to any individual a license to operate a
motor vehicle transporting in commerce a hazardous material unless
the Secretary of Transportation has first determined, upon receipt
of a notification under subsection (c)(1)(B), that the individual
does not pose a security risk warranting denial of the license.\2\
\2\ The Secretary of Transportation delegated the authority to
carry out the provisions of this section to the Under Secretary of
Transportation for Security/Administrator. 68 FR 10988, March 7,
Section 5103a(a)(2) subjects license renewals to the same
Section 5103a(c) requires the Attorney General, upon the request of
a State in connection with issuance of a hazardous materials
endorsement, to carry out a background records check of the individual
applying for the endorsement and, upon completing the check, to notify
the Secretary of the results. The Secretary then determines whether the
individual poses a security risk warranting denial of the endorsement.
The term ``Secretary'' originally referred to the Department of
Transportation, but these functions have been transferred to the
Secretary of the Department of Homeland Security (DHS), and
subsequently delegated by the Secretary to the TSA Administrator. The
background records check must consist of: (1) A check of the relevant
criminal history databases; (2) in the case of an alien, a check of the
relevant databases to determine the status of the alien under U.S.
immigration laws; and (3) as appropriate, a check of the relevant
international databases through Interpol-U.S. National Central Bureau
or other appropriate means.
Safe Explosives Act
Congress enacted the Safe Explosives Act (SEA) on November 25,
2002.\3\ Sections 1121-1123 of the SEA amended section 842(i) of Title
18 of the U.S. Code by adding several categories to the list of persons
who may not lawfully ``ship or transport any explosive in or affecting
interstate or foreign commerce'' or ``receive or possess any explosive
which has been shipped or transported in or affecting interstate or
foreign commerce.'' Prior to the amendment, 18 U.S.C. 842(i) prohibited
the transportation of explosives by any person under indictment for or
convicted of a felony, a fugitive from justice, an unlawful user or
addict of any controlled substance, and any person who had been
adjudicated as a mental defective or committed to a mental institution.
The amendment added three new categories to the list of prohibited
persons: aliens (with certain limited exceptions), persons dishonorably
discharged from the armed forces, and former U.S. citizens who have
renounced their citizenship. Individuals who violate 18 U.S.C. 842(i)
are subject to criminal prosecution.\4\ These incidents are
investigated by the Bureau of Alcohol, Tobacco, Firearms, and
Explosives (ATF) of the Department of Justice and referred, as
appropriate, to the United States Attorneys.
\3\ Pub. L. 107-296, November 25, 2002, 116 Stat. 2280.
\4\ The penalty for violation of 18 U.S.C. 842(i) is up to ten
years imprisonment and a fine of up to $250,000.
However, 18 U.S.C. 845(a)(1) provides an exception to section
842(i) for ``any aspect of the transportation of explosive materials
via railroad, water, highway, or air which are regulated by the United
States Department of Transportation and agencies thereof, and which
pertains to safety.'' Under this exception, if DOT regulations address
the transportation security issues of persons engaged in a particular
aspect of the safe transportation of explosive materials, then those
persons are not subject to prosecution under 18 U.S.C. 842(i) while
they are engaged in the transportation of explosives in commerce.
The PATRIOT Act Rule
To comply with the mandates of the USA PATRIOT Act, and to trigger
the exception in 18 U.S.C. 845(a)(1) for the transportation of
explosives, TSA and FMCSA issued interim final rules on May 5, 2003.\5\
The TSA rule established security threat assessment standards for
determining whether an individual poses a security threat warranting
denial of a hazmat endorsement for a CDL. Under the rules, TSA
determines that an individual poses a security threat if he or she: (1)
Is an alien (unless he or she is a lawful permanent resident) or a U.S.
citizen who has renounced his or her U.S. citizenship; (2) is wanted or
under indictment for certain felonies; (3) has a conviction in military
or civilian court for certain felonies; (4) has been adjudicated as a
mental defective or involuntarily committed to a mental institution; or
(5) is considered to pose a security threat based on a review of
\5\ 68 FR 23844 and 68 FR 23851.
The rules also established conditions under which an individual who
has been determined to be a security threat could appeal the
determination, and procedures TSA follows when
considering an appeal. In addition, the rules provide a waiver process
for those individuals who otherwise could not obtain a hazmat
endorsement because they had a disqualifying felony, or were
adjudicated as a mental defective or involuntarily committed to a
mental institution. Finally, the rules prohibit an individual from
holding, and a State from issuing, renewing, or transferring, a hazmat
endorsement for a CDL unless the individual met the TSA security threat
The FMCSA rule places States on notice that failure to comply with
those portions of the TSA rule applicable to States by November 3,
2003, will result in the withholding by DOT of certain Federal-aid
The TSA rule requires States to begin collecting fingerprints from
individuals applying for, renewing, or transferring a hazmat
endorsement for a CDL on November 3, 2003, and to submit those
fingerprints to TSA so that TSA can conduct fingerprint-based criminal
history records checks (CHRCs).
Summary of Today's IFR
Elsewhere in today's issue of the Federal Register, TSA is
postponing the date on which States are required to collect
fingerprints from individuals who are applying for, renewing,
upgrading, or transferring a hazmat endorsement for a CDL from November
3, 2003, to April 1, 2004. However, if a State requests a postponement
of that date and provides a written justification, TSA may grant an
extension, but in no case beyond December 1, 2004. FMCSA is therefore
amending its rule to incorporate the same standard: States must comply
with the TSA rule requiring the collection of fingerprints by April 1,
2004, unless TSA authorizes a later date under 49 CFR 1572.5(c)(4).
After this date, whatever it may be, States that fail to comply with
the TSA rule risk the loss of Federal-aid highway funds. FMCSA and TSA
are making this change for several reasons.
TSA received comments from departments of motor vehicles and other
agencies in over 23 States stating they have neither the infrastructure
nor the funding to comply with the requirements of the rule. The main
costs identified by States included the costs of purchasing
fingerprinting equipment, and hiring and training personnel to operate
the fingerprinting equipment. Most of the States requested Federal
funding for these costs. The TSA rule discusses the cost issue in more
Many States also commented that compliance with the Patriot Act
rule, specifically the fingerprinting requirements, would require
legislative changes. In many States, the State legislatures meet only
once a year with a few State legislatures meeting biennially. These
States requested additional time to make necessary legislative changes.
For these reasons, FMCSA and TSA are moving the date that States
must begin collecting fingerprints to April 1, 2004, with the
possibility of postponement to a later date.
FMCSA is amending 49 CFR 383.141 paragraphs (a) and (c) to move the
date on which States are required to collect fingerprints from
individuals who are applying for, renewing, or transferring a hazmat
endorsement for a CDL from November 3, 2003, to April 1, 2004, though
TSA may extend the compliance date to not later than December 1, 2004.
Section 383.141(c) requires States to notify drivers at least 180 days
before the expiration date of a hazardous materials endorsement.
Because FMCSA's May 5 IFR allowed only slightly more than 180 days
before States were required to begin collecting fingerprints, part of
which the States would need to establish notification procedures, Sec.
383.141(c) provides that ``Before November 3, 2003, a State must give
the holder of a hazardous materials endorsement as much advance notice
as practicable'' [68 FR at 23850]. In view of today's postponement of
the States' compliance date, which will allow them to give drivers a
full 180 days of advance notice, the sentence quoted above has been
Rulemaking Analyses and Notices
Justification for Immediate Adoption
FMCSA is issuing this IFR without prior notice and opportunity to
comment pursuant to its authority under section 4(a) of the
Administrative Procedure Act (5 U.S.C. 553(b)). This provision allows
the agency to issue a final rule without notice and opportunity to
comment when the agency for good cause finds that notice and comment
procedures are ``impracticable, unnecessary or contrary to the public
interest.'' If the agency fails to immediately adopt this interim final
rule, States could lose certain Federal-aid funding due to the short
implementation deadline for TSA requirements announced in the May 2003
interim final rule (68 FR 23852) and an inability to meet those
requirements due to lack of infrastructure and funding through no fault
of their own and circumstances beyond their control.
This IFR changes the date on which States are required to collect
fingerprints from individuals who are applying for, renewing, or
transferring a hazmat endorsement for a CDL. Because this IFR does not
impose any new burdens on stakeholders, FMCSA believes that notice and
comment procedures are ``unnecessary.'' Due to the short deadline, the
agency finds good cause under 5 U.S.C. 553(d)(3) to make this rule
effective upon publication.
Executive Order 12866, ``Regulatory Planning and Review'' (58 FR
51735, October 4, 1993), provides for making determinations whether a
regulatory action is ``significant'' and therefore subject to Office of
Management and Budget (OMB) review and to the requirements of the
Executive Order. FMCSA has determined that this is a significant
regulatory action within the meaning of Executive Order 12866 and under
the Department's regulatory policies and procedures because of
substantial public interest. This rule does not impose any costs on any
public, private, or government sector, therefore further economic
analysis is unnecessary.
Regulatory Flexibility Determination
The Regulatory Flexibility Act of 1980 (RFA), as amended, was
enacted by Congress to ensure that small entities (small businesses,
small not-for-profit organizations, and small governmental
jurisdictions) are not unnecessarily or disproportionately burdened by
Federal regulations. The RFA requires agencies to review rules to
determine if they have ``a significant economic impact on a substantial
number of small entities.'' I certify that the IFR will not have a
significant economic impact on a substantial number of small entities.
As noted above, this IFR will not impose any costs on any public,
private, or government sector.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. This IFR does not
contain any information collection requirements.
Executive Order 13132 (Federalism)
Executive Order 13132 requires FMCSA to develop an accountable
process to ensure ``meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications.'' ``Policies that have
federalism implications'' is defined in the Executive Order to include
regulations that have ``substantial direct effects on the States, on
the relationship between the national government and the States, or on
the distribution of power and responsibilities among the various levels
of government.'' Under the Executive Order, FMCSA may construe a
Federal statute to preempt State law only where, among other things,
the exercise of State authority conflicts with the exercise of Federal
authority under the federal statute.
Although this IFR has direct effects on the States, they are not
substantial because the IFR will continue the status quo while allowing
States more time to comply with the May 5, 2003, interim final rules.
Thus, FMCSA has determined that this IFR does not have sufficient
Federalism implications to warrant the preparation of a Federal
As discussed in detail in the May 5 IFR [see 68 FR at 23847-23848],
the provisions of 49 U.S.C. 31314, which require DOT to withhold
certain Federal-aid highway funds from States that fail to comply
substantially with the requirements for State participation in the CDL
program, apply also to State compliance with those portions of the
Transportation Security Administration (TSA) rule implementing Sec.
1012 that apply to States. In addition, 49 U.S.C. 31312 authorizes DOT
to prohibit States from issuing CDLs if the Secretary determines ``that
a State is in substantial noncompliance'' with 49 U.S.C. chapter 313.
These penalties are available for DOT to use when and if appropriate to
encourage State compliance with TSA's Sec. 1012 rule.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards-related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety and security, are not considered
unnecessary obstacles. The statute also requires consideration of
international standards and, where appropriate, that they be the basis
for U.S. standards. FMCSA has assessed the potential effect of this IFR
and has determined that it will not impose any costs on domestic or
international entities and thus would have a neutral trade impact.
Unfunded Mandates Reform Act
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million in any one year (adjusted for inflation with base
year of 1995). Before promulgating a rule for which a written statement
is needed, section 205 of the UMRA generally requires FMCSA to identify
and consider a reasonable number of regulatory alternatives and adopt
the least costly, most cost-effective, or least burdensome alternative
that achieves the objective of the rule. The provisions of section 205
do not apply when they are inconsistent with applicable law. Moreover,
section 205 allows FMCSA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
agency publishes with the final rule an explanation why that
alternative was not adopted.
This IFR will not result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $100 million annually. Thus, FMCSA has not prepared a written
assessment under the UMRA.
National Environmental Policy Act
FMCSA has analyzed this rulemaking action for the purposes of the
National Environmental Policy Act. The agency has determined that
implementation of this IFR will not have any significant impact on the
quality of the human environment.
FMCSA has assessed the energy impact of this rule in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended (42 U.S.C. 6362). FMCSA has determined that this IFR is not
a major regulatory action under the provisions of the EPCA.
List of Subjects in 49 CFR Part 383
Administrative practice and procedure, Commercial driver's license,
Commercial motor vehicles, Highway safety, Motor carriers.
For the reasons set forth in the preamble, the FMCSA amends title 49,
Code of Federal Regulations, Chapter III, as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
1. The authority citation for part 383 continues to read as follows:
Authority: 49 U.S.C. 521, 31136, 31301 et seq., 31502; Sec. 214
of Pub. L. 106-159, 113 Stat. 1766; Sec. 1012(b) of Pub. L. 107-56,
115 Stat. 397; and 49 CFR 1.73.
2. Revise Sec. 383.141 paragraphs (a) and (c) to read as follows:
Sec. 383.141 General.
(a) Applicability date. Beginning on April 1, 2004, this section
applies to State agencies responsible for issuing hazardous materials
endorsements for a CDL, and applicants for such endorsements.
Individual State licensing agencies, pursuant to 49 CFR 1572.5(c)(4),
may request an extension of the compliance date.
* * * * *
(c) Individual notification. At least 180 days before the
expiration date of the CDL or hazardous materials endorsement, a State
must notify the holder of a hazardous materials endorsement that the
individual must pass a Transportation Security Administration security
screening process as part of any application for renewal of the
hazardous materials endorsement. The notice must advise a driver that,
in order to expedite the security screening process, he or she should
file a renewal application as soon as possible, but not later than 90
days before the date of expiration of the endorsement. An individual
who does not successfully complete the Transportation Security
Administration security screening process referenced in paragraph (b)
of this section may not be issued a hazardous materials endorsement.
* * * * *
Issued on: November 5, 2003.
Annette M. Sandberg,
[FR Doc. 03-28175 Filed 11-5-03; 2:44 pm]