[Federal Register: August 19, 2004 (Volume 69, Number 160)]
[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.
SUMMARY: FMCSA issues this rule to amend the compliance date in its
Interim final rule (IFR) published in the May 5, 2003 Federal Register
regarding limitations on State issuance of a commercial driver's
license (CDL) with a hazardous materials endorsement. States must not
issue, renew, transfer or upgrade a CDL with a hazardous materials
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. FMCSA is changing the
date by which States must comply with TSA regulations to coincide with
the new compliance date established by TSA. The compliance date is
changed from April 1, 2004, to January 31, 2005.
DATES: Effective: This rule is effective on September 20, 2004.
Compliance: States must comply with this rule by January 31, 2005.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Redmond, Office of Safety
Programs, (202) 366-9579, FMCSA, 400 7th Street, SW., Washington, DC
20590. Office hours are from 8:30 a.m. to 5 p.m., e.t., Monday through
Friday, except Federal holidays.
Small Entity Inquiries
The Small Business Regulatory Enforcement Fairness Act 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 the Small Business Regulatory Enforcement
Fairness Act on the Small Business Administration's Web page at
Summary of Today's Action
The Uniting and Strengthening America by Providing Appropriate
Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act
[Public Law 107-56, 115 Stat. 272] was enacted on October 25, 2001.
Section 1012 of the USA PATRIOT Act amended 49 U.S.C. Chapter 51 by
adding a new sec. 5103a titled "Limitation on issuance of hazmat
licenses." Section 5103a(a)(1) provides:
A State may not issue to any individual a license to operate a
motor vehicle transporting in commerce a hazardous material unless
the Secretary of Transportation has first determined, upon receipt
of a notification under subsection (c)(1)(B), that the individual
does not pose a security risk warranting denial of the license.
FMCSA shares with TSA responsibility for implementing sec. 1012 of
the USA PATRIOT Act.
For reasons described in its April 6, 2004 final rule (Security
Threat Assessment for Individuals Applying for a Hazardous Materials
Endorsement for a Commercial Drivers License; Final Rule, 69 FR 17969),
TSA is amending the April 1, 2004, deadline for States to begin
collecting fingerprints from a driver requesting authority to transport
hazardous materials in commerce. The new compliance date is January 31,
2005. Therefore, FMCSA revises the compliance date for hazardous
materials security requirements published in its companion IFR (68 FR
23844, May 5, 2003) from April 1, 2004 to January 31, 2005 to coincide
with the new TSA deadline.
Rulemaking Analyses and Notices
Justification for Immediate Adoption
FMCSA is issuing this IFR without prior notice and opportunity to
comment pursuant to its authority under section 4(a) of the
Administrative Procedure Act (5 U.S.C. 553(b)). This provision allows
the agency to issue a final rule without notice and opportunity to
comment when the agency for good cause finds that notice and comment
procedures are "impracticable, unnecessary or contrary to the public
interest." This amended IFR is ministerial in nature. It changes the
date on which States are required to collect fingerprints from
individuals who are applying for, renewing, upgrading or transferring a
CDL with a hazardous materials endorsement. Because the rule relieves a
burden on stakeholders by extending the compliance date, FMCSA has
that it is within the scope of the May 5, 2003, IFR and that further
notice and comment on this issue are unnecessary.
The agency intends to issue a final rule at a later date and will
respond to comments to the May 5, 2003 IFR at that time.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this action 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. This rule does not impose any costs on any public, private,
or government sector, therefore further economic analysis is
unnecessary. The Office of Management and Budget has completed its
review of this rule under Executive Order 12866.
Regulatory Flexibility Act
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 Regulatory Flexibility Act 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
final rule will not have a significant economic impact on a substantial
number of small entities. As noted above, this final rule applies only
to State governments and does not impose any costs on any public,
private, or government sector.
Executive Order 13132 (Federalism)
Executive Order 13132 requires FMCSA to develop an accountable
process to ensure "meaningful and timely input by State and local
officials in the development of regulatory policies that have
federalism implications." "Policies that have federalism
implications" is defined in the Executive Order to include regulations
that have "substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government." Under the Executive Order, FMCSA may construe a Federal
statute to preempt State law only where, among other things, the
exercise of State authority conflicts with the exercise of Federal
authority under the federal statute.
Although this amended interim final rule potentially has direct
effects on the States, they are not substantial because the rule will
allow States more time to comply with the TSA regulation published on
April 6, 2004 (69 FR 17969), and thus avoid the withholding of Federal-
aid highway funds that could result from non-compliance with the TSA
rule. FMCSA has determined that this amended interim final rule does
not have sufficient federalism implications to warrant the preparation
of a federalism assessment.
The provisions of 49 U.S.C. 31314 require DOT to withhold certain
Federal-aid highway funds from States that fail to comply substantially
with the requirements for State participation in the CDL program. As
discussed in detail in the May 5 IFR [see 68 FR at 23847-23848], those
provisions apply also to State compliance with portions of the TSA rule
implementing sec. 1012 that apply to States. In addition, 49 U.S.C.
31312 authorizes DOT to prohibit States from issuing CDLs if the
Secretary determines ``that a State is in substantial noncompliance''
with 49 U.S.C. chapter 313. These penalties are available for DOT to
use when and if appropriate to encourage State compliance with TSA's
sec. 1012 rule.
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 do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from the Office of
Management and Budget (OMB) for each collection of information it
conducts, sponsors, or requires through regulations. This amended
interim final rule does not contain any information collection
National Environmental Policy Act
The agency analyzed this amended interim final rule for the purpose
of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
et seq.) and determined under our environmental procedures Order
5610.1, issued on March 1, 2004 and effective March 31, 2004, that this
action is categorically excluded (CE) under Appendix 2, paragraph 6.d
of the Order from further environmental documentation. That CE relates
to establishing regulations and actions taken pursuant to these
regulations that concern the training, qualifying, licensing,
certifying, and managing of personnel. In addition, the agency believes
that the action includes no extraordinary circumstances that will have
any effect on the quality of the environment. Thus, the action does not
require an environmental assessment or an environmental impact
We have also analyzed this rule under sec. 175(c) of the Clean Air
Act, as amended (CAA) sec. 176(c), (42 U.S.C. 7506(c)) and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's General Conformity
requirement since it involves policy development and civil enforcement
activities, such as, investigations, inspections, examinations, and the
training of law enforcement personnel. See 40 CFR 93.153(c)(2). It will
not result in any emissions increase nor will it have any potential to
result in emissions that are above the general conformity rule's de
minimis emission threshold levels. Moreover, it is reasonably
foreseeable that the rule change will not increase total CMV mileage,
change how CMVs operate, the routing of CMVs, or the CMV fleet-mix of
motor carriers. This action merely extends a compliance date for State
licensing agencies to meet TSA requirements to coincide with the new
Executive Order 13211 (Energy Supply, Distribution, or Use)
We have analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. This action is not a significant energy action
within the meaning of sec. 4(b) of the Executive Order because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy.
Trade Impact Assessment
The Trade Agreement Act of 1979 prohibits Federal agencies from
engaging in any standards-related activities that create unnecessary
obstacles to the foreign commerce of the United States. Legitimate
domestic objectives, such as safety and security, are not considered
unnecessary obstacles. The statute also requires consideration of
international standards and, where appropriate, that they be the basis
for U.S. standards. FMCSA has assessed the potential effect of this
final rule and has determined that it will not
impose any costs on domestic or international entities and thus would
have a neutral trade impact.
Unfunded Mandates Reform Act of 1995
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA)
requires Federal agencies to prepare a written assessment of the costs,
benefits, and other effects of proposed or final rules that include a
Federal mandate likely to result in the expenditure by State, local, or
tribal governments, in the aggregate, or by the private sector, of more
than $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, sec. 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 sec. 205 do
not apply when they are inconsistent with applicable law. Moreover,
sec. 205 allows FMCSA to adopt an alternative other than the least
costly, most cost-effective, or least burdensome alternative if the
agency publishes with the rule an explanation why that alternative was
This amended interim final rule will not result in the expenditure
by State, local, or tribal governments, in the aggregate, or by the
private sector, of more than $100 million annually. Thus, FMCSA has not
prepared a written assessment under the UMRA.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutional Protected Property Rights.
Civil Justice Reform
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
Protection of Children from Environmental Health Risks and Safety
Risks. This amended interim final rule changes the compliance dates by
which States must meet TSA requirements. This rule will not cause an
increase in the number of hazardous materials incidents, nor increase
the number of non-hazardous materials commercial motor vehicle crashes.
Therefore, the FMCSA certifies that this action is not an economically
significant rule and does not concern an environmental risk to health
or safety that may disproportionately affect children.
FMCSA has assessed the energy impact of this rule in accordance
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163,
as amended (42 U.S.C. 6362). FMCSA has determined that this final rule
is not a major regulatory action under the provisions of the EPCA.
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 paragraph (a) to read as follows:
Sec. 383.141 General.
(a) Applicability date. Beginning on January 31, 2005, this section
applies to State agencies responsible for issuing hazardous materials
endorsements for a CDL, and applicants for such endorsements.
* * * * *
Issued on: August 13, 2004.
Annette M. Sandberg,
[FR Doc. 04-19004 Filed 8-18-04; 8:45 am]