[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[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 Parts 383 and 384
Limitations on the Issuance of Commercial Driver's Licenses with a
Hazardous Materials Endorsement; Interim Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383 and 384
[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; request for comments.
SUMMARY: The FMCSA amends the Federal Motor Carrier Safety Regulations
(FMCSRs) to prohibit States from issuing, renewing, transferring or
upgrading a commercial driver's license (CDL) with a hazardous
materials endorsement unless the Transportation Security Administration
(TSA) has first conducted a background records check of the applicant
and determined that the applicant does not pose a security risk
warranting denial of the hazardous materials endorsement. This interim
final rule implements part of the requirements of section 1012 of the
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT
Act) and certain provisions of the statutes dealing with explosives.
The remaining requirements of section 1012 are implemented by a TSA
interim final rule published elsewhere in today's issue of the Federal
DATES: This rule is effective on May 5, 2003. State compliance with
this rule is required by November 3, 2003. Comments must be received on
or before July 7, 2003.
ADDRESSES: You can mail, fax, hand deliver or electronically submit
written comments to the Docket 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://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://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 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: Valerie Height, (202) 366-0901,
Regulatory Development Division, FMCSA, 400 7th Street, SW.,
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except Federal holidays.
On September 11, 2001, several terrorist attacks were made against
the United States, which resulted in catastrophic human casualties and
property damage. Two commercial aircraft were hijacked and flown into
the World Trade Center in New York; and a similar attack occurred
against the Pentagon. A fourth aircraft went down near Pittsburgh,
Pennsylvania--the result of a hijacking attempt. Soon after, letters
containing anthrax--a dangerous biological substance--were delivered to
media and congressional and postal offices in Florida, New York, and
Washington, DC. Several more lives were claimed during these incidents.
National security and intelligence officials continue to warn that
future terrorist attacks against civilian targets are possible.
In response to these events, Congress passed the ``Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001'' (USA PATRIOT Act) [Pub.
L. 107-56, October 26, 2001, 115 Stat. 272]. Sec. 1012 of the USA
PATRIOT Act [115 Stat. 396] amended the Hazardous Materials
Transportation Act (49 U.S.C. chapter 51) by adding a new Sec. 5103a
entitled ``Limitation on issuance of hazmat licenses.'' Section
5103a(a)(1) provides that ``[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 *
* * that the individual does not pose a security risk warranting denial
of the license.'' There is no ``hazmat license'' per se, under State or
Federal law, but Sec. 1012(b) amended the fitness and testing standards
of the statute that created the Commercial Driver's License (CDL)
program to require that drivers not be granted a CDL unless they have
``first been determined under section 5103a of this title as not posing
a security risk warranting denial of the license'' [49 U.S.C.
31305(a)(5)(C)]. The Department of Transportation (DOT) therefore
interprets the license referred to in Sec. 5103a as the hazardous
materials endorsement to a CDL, which is required by 49 CFR
383.93(b)(4). To qualify for the endorsement, the individual must first
pass a specialized hazardous materials knowledge test (Sec. 383.121)
in addition to the requisite general knowledge and skills tests.
Section 5103a is therefore a de facto amendment to the CDL legislation.
FMCSA shares with TSA the responsibility for implementing the
requirements of Sec. 1012. TSA has developed regulations governing the
security risk determination process (see 49 CFR Part 1572) and has
responsibility for that program. FMCSA has revised its regulations to
require State licensing agencies to issue or renew a hazardous
materials endorsement for a CDL only if TSA has determined that the
applicant does not pose a security risk warranting denial of such
endorsement. For the purpose of determining applicability, a CDL
renewal, transfer, or upgrade is also considered a new issuance and
falls within the scope of these requirements, if it involves a
hazardous materials endorsement.
This interim final rule (IFR) is effective upon publication in the
Federal Register. States, however, will not be required to comply with
the requirements of the rule until November 3, 2003. This will allow
TSA sufficient time to confer with the States and other entities about
the best means of carrying out the TSA rule.
Consistent with the requirements of Sec. 1012, the FMCSA is
amending 49 CFR 383.5 to add the term ``alien'' and to revise the
existing terms ``hazardous materials'' and ``commercial motor
vehicle.'' Under Sec. 1012, ``alien'' has the same meaning given the
term in Sec. 101(a)(3) of the Immigration and Nationality Act (8 U.S.C.
1101(a)(3)), i.e., any individual not a citizen or national of the
Similarly, Sec. 5103a(b)(2) expanded the meaning of ``hazardous
materials'' to include ``any chemical or biological material or agent
determined by the Secretary of Health and Human Services or the
Attorney General to pose a threat to national security.'' FMCSA has
worked closely with the Department of Justice and the U.S. Department
of Health and Human Services, Centers for Disease Control and
Prevention (CDC), in defining an appropriate list. After careful
consideration, and with the agreement of TSA, FMCSA has decided to
cross-reference the CDC list of Select Agents and Toxins in 42 CFR,
part 73. A hazardous material is therefore defined as any material
that: (1) in accordance with Federal hazardous materials transportation
law (49 U.S.C. 5101 et seq.), has been determined to pose an
unreasonable risk to health, safety, and property when transported in
commerce and that is required to be placarded under subpart F of part
172 of the Hazardous Materials Regulations (HMR) (49 CFR parts 171-
180); or (2) any quantity of any material listed as a select agent or
toxin by CDC in 42 CFR part 73.
The HMR do not require placarding for the transportation of all
hazardous materials, because the Research and Special Programs
Administration (RSPA) has determined that some such materials do not
pose serious risks in smaller quantities. For example, explosives
(Class 1 hazardous materials) may not be transported unless they have
been tested, classified and approved by the agency. Class 1 materials
are divided into six divisions, depending on the degree and nature of
the explosive hazard presented. A Division 1.1 material presents a mass
explosive hazard, i.e., virtually the entire amount explodes
simultaneously. A Division 1.4 material, on the other hand, has a minor
explosion hazard that is largely confined to the package and does not
involve projection of fragments. And some explosives, when mixed with
other materials, will not explode at all. RSPA's regulations therefore
require placards for the transportation of explosives and other
hazardous materials that pose significant threats to the public, but
not for those which are unlikely to cause harm, whether because of
their chemical properties, minimal quantities, or for other reasons.
RSPA has determined that non-placarded shipments do not present a
sufficient security risk in transportation to warrant the application
at this time of the TSA background check requirements to persons who
possess or transport such materials.
Conforming changes were made to the Sec. 383.5 definition of a
commercial motor vehicle and the description of a hazardous materials
endorsement under Sec. 383.93(b)(4) to ensure that drivers newly
covered by the hazardous materials definition--transporters of any
quantity of any material defined as a Select Agent or Toxin under CDC
regulations--are required to obtain a CDL with a hazardous materials
endorsement, and are subject to the new TSA security screening process
for drivers. Paragraph (d) under the Sec. 383.5 definition of a
commercial motor vehicle (CMV) now cross-references the new hazardous
materials definition. This change effectively broadens the scope of the
CMV definition to include vehicles of any size that are used to
transport any quantity of a Select Agent or Toxin. Likewise, the
hazardous materials endorsement description under Sec. 383.93(b)(4)
now references a vehicle ``[u]sed to transport hazardous materials as
defined in Sec. 383.5 of this part.''
Limitation on Learner's Permit
In order to make the rules governing the CDL learner's permit
consistent with the purpose of Sec. 1012 and TSA's implementing
regulations, Sec. 383.23(c) has been amended to provide that a
learner's permit does not authorize the holder of the permit to
transport hazardous materials as defined in Sec. 383.5. A person with
a learner's permit must pass the general knowledge and skills tests
(Sec. Sec. 383.111, 383.113), the special hazardous materials
knowledge test (Sec. 383.121), and the TSA background records check
before he/she is eligible for a CDL with a hazardous materials
Changes in State Procedures and Requirements
Several important changes to commercial driver's licensing
procedures and regulations are required to implement this rule. These
revisions will only apply to licensing procedures for hazardous
materials endorsements issued with a CDL.
The driver application (Sec. 383.71) and State licensing (Sec.
383.73) procedures have been amended to require all individuals to pass
the TSA security screening process when renewing, upgrading,
transferring, or newly applying for a CDL with a hazardous materials
Similarly, new subpart I prohibits the issuance of a hazardous
materials endorsement for a CDL unless TSA has determined that the
applicant does not pose a security risk warranting denial of the
endorsement. Section 383.141(c) requires a State to notify an
individual at least 180 days (6 months) prior to the expiration date of
the CDL or hazardous materials endorsement that he/she must pass the
new TSA security screening process as a prerequisite to obtaining a
hazardous materials endorsement, and therefore must immediately begin
the renewal process. All States should urge drivers who intend to
reapply to do so as soon as possible after receiving the notification.
This will prevent the security risk review from unnecessarily delaying
the renewal process.
States have widely varying renewal periods for CDLs and hazardous
materials endorsements. To ensure that each holder of a hazardous
materials endorsement for a CDL routinely and uniformly receives a
security screening, Sec. 383.141(d) requires States to adopt, at
minimum, a 5-year renewal cycle for a hazardous materials endorsement
for a CDL. As the TSA rule indicates, however, background checks
utilizing the names of, and biographical data on, all drivers currently
holding hazardous materials endorsements will begin almost immediately.
If a driver is found not to meet its security threat assessment
standards, TSA will notify the State that his/her hazardous materials
endorsement should be revoked.
The TSA rule also addresses the prohibitions in 18 U.S.C. 842(i),
which were recently amended by Sec. 1123 of the Homeland Security Act
[Pub. L. 107-296, November 25, 2002, 116 Stat. 2135, at 2283]. Sec.
842(i) makes it a criminal offense for certain persons to ship or
transport explosives in interstate commerce, or to receive or possess
any explosive so shipped or transported. This prohibition applies to a
person who is under indictment for, or convicted of, a felony [Sec.
842(i)(1)]; is a fugitive from justice [Sec. 842(i)(2)]; is an
unlawful user of, or addicted to, a controlled substance [Sec.
842(i)(3)]; has been adjudicated a mental defective or committed to a
mental institution [Sec. 842(i)(4)]; is an alien, except permanent
resident aliens and certain other specified aliens [Sec. 842(i)(5)];
was discharged from the U.S. armed forces under dishonorable conditions
[Sec. 842(i)(6)]; or has renounced U.S. citizenship [Sec. 841(i)(7)].
The prohibition in Sec. 842(i), however, does not apply to any
aspect of the commercial transportation of explosives which is
regulated by the Department of Transportation and which pertains to
safety [18 U.S.C. 845(a)(1)]. The Department of Justice has interpreted
this provision to exempt persons from application of Sec. 842(i) when
(1) DOT has actually regulated a relevant aspect of
the transportation of explosives, and (2) those regulations cover the
particular aspect of the safe transportation of explosives that
prompted Congress to enact the criminal statute from which exemption is
sought. For purposes of Sec. 845(a)(1), if DOT determines that persons
engaged in certain aspects of the transportation of explosives do not
pose a security risk and do not warrant regulation, 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 hazardous materials regulations promulgated by the Research and
Special Programs Administration (RSPA) extensively regulate the
movement of explosives [49 CFR Parts 171-180]. Furthermore, TSA's rule
prohibits a person from obtaining a hazardous materials endorsement to
CDL if he or she is under indictment for or convicted of a broad range
of felonies [49 CFR 1572.5(d)(1)(ii) and 1572.103(a)(1), (a)(3), and
(b)]; is a fugitive [Sec. Sec. 1572.5(d)(1)(ii) and 1572.103(a)(3)];
has been adjudicated a mental defective or committed to mental
institution [Sec. 1572.5(d)(1)(iii)]; is an alien, with certain
exceptions [Sec. Sec. 1572.5(d)(1)(i) and 1572.105]; or has renounced
U.S. citizenship [Sec. Sec. 1572.5(d)(1)(i) and 1572.105]. TSA also
has addressed the security risk that individuals who have been
dishonorably discharged from the armed services pose. For example, a
discharge from the U.S. armed forces under dishonorable conditions is
usually the result of a conviction in military court, and some such
convictions will disqualify a person from holding a hazardous materials
endorsement under this rule. Therefore, FMCSA believes that TSA has
addressed Sec. 842(i)(6). FMCSA has a comprehensive regulatory regime
to disqualify drug users from operating commercial motor vehicles [49
CFR Part 382] which we believe addresses Sec. 842(i)(3).
This interim final rule, by requiring States to comply with the TSA
rule on background checks, essentially incorporates into the Federal
Motor Carrier Safety Regulations the TSA regulations governing
eligibility for a hazardous materials endorsement. Taken together,
RSPA's hazardous materials regulations, FMCSA's drug and alcohol
testing regulations, and FMCSA's CDL regulations which incorporate by
reference TSA's standards for obtaining a hazardous materials
endorsement, fully address the prohibitions in 18 U.S.C. 842(i) and
thus, pursuant to 18 U.S.C. 845(a)(1), preclude application of Sec.
842(i)(1)-(7) to persons engaged in the commercial transportation of
hazardous materials by motor vehicle.
Some of the requirements of the TSA rule apply directly to drivers
seeking hazardous materials endorsements, others to the States that
issue such endorsements. Sec. 1012 of the USA PATRIOT Act imposes
certain requirements on the States. Sec. 1012(b) [49 U.S.C.
31305(a)(5)(C)] authorizes FMCSA to require States to comply with TSA
regulations adopted to carry out Sec. 1012(a). The TSA rule, however,
is also based on other statutory authorities which enable that agency
to impose requirements directly on applicants for hazardous materials
endorsements. In amending 49 CFR part 384, which sets the minimum
standards that State CDL programs must maintain in order to avoid the
withholding of Federal-aid highway funds, FMCSA has therefore
distinguished between those provisions of the TSA regulation that are
based on Sec. 1012 and apply to States, and those provisions that apply
to drivers. For example, 49 C.F.R. 1572.5(e) requires States to have
applicants complete a form that includes specific information, while
Sec. 1572.5(b)(1)(iii) requires anyone holding a hazardous materials
endorsement who is convicted of, or under indictment for, a
disqualifying crime listed in Sec. 1572.103 to report the offense to
the State of issuance and surrender the endorsement to the State. The
first requirement applies to the State, the second does not. A State
therefore would not be penalized if drivers failed to comply with Sec.
1572.5(b)(1)(iii) or some other provision that applies directly to
drivers rather than the State.
Rulemaking Analyses and Notices
Under the Administrative Procedure Act (APA), an agency may, for
good cause, immediately promulgate a final rule if it finds that prior
notice and opportunity for comment ``are impracticable, unnecessary, or
contrary to the public interest'' [5 U.S.C. 553(b)(3)(B)].
The catastrophic effect of the attacks on the World Trade Center
and Pentagon on September 11, 2001, revealed the vulnerability of the
nation's transportation system to terrorism. National security and
intelligence officials warn that future terrorist attacks are likely.
The number of commercial motor vehicles that carry hazardous materials
is far greater than the number of aircraft that might be hijacked by
terrorists. Sec. 1012 of the USA PATRIOT Act is an attempt to increase
the security of highway transportation of hazardous materials. In view
of the urgency of putting into operation the background records checks
required by the Act, FMCSA finds that prior notice and opportunity for
comments are both impracticable and contrary to the public interest.
The delays inherent in such a process could make the difference between
stopping and overlooking a terrorist threat.
This rule is effective upon publication, although compliance will
be delayed for 180 days to allow TSA to consult with the States and
other parties about the best means of conducting background checks on
CDL-holders who have or want a hazardous materials endorsement. During
that period, we are soliciting public comments on the rule and will
later make changes that may be required, either because of the comments
submitted or experience with the IFR. This rule, however, must remain
consistent with the requirements imposed by TSA's companion rule.
Comments received after the comment closing date will be filed in the
docket and considered to the extent practicable. In addition to late
comments, the FMCSA will also continue to file relevant information in
the docket as it becomes available after the comment period closing
date. Please continue to review the docket for new material.
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 in security issues since the events that occurred on September
11, 2001. This IFR implements some of the requirements of Sec. 1012 of
the USA PATRIOT Act by prohibiting States from issuing or renewing a
CDL endorsement to operate a motor vehicle transporting a hazardous
material unless TSA has determined that the applicant does not pose a
security risk warranting denial of the license. Along with RSPA and TSA
rules, it also addresses 18 U.S.C. 842(i) and 845(a)(1).
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (5 U.S.C. 601-612), an agency
is required to evaluate proposed rulemakings to determine the effects
of its action upon small entities. FMCSA does not believe that these
proposals meet the threshold values for requiring
a full-blown regulatory analysis, since the anticipated impact is
On October 24, 2001, the President signed the USA PATRIOT Act of
2001. The changes promulgated by this rule and the corresponding TSA
rule are a direct response to this legislation.
These two rulemakings are the first implementing regulations for
Sec. 1012; there are no Regulatory Flexibility Act comments to analyze.
According to the FMCSA Motor Carriers Management Information System
(MCMIS) as of March 4, 2002, 59 percent (24,545) of the 41,527 carriers
who haul hazardous materials have 6 or fewer power units (tractors),
compared with 76 percent for all motor carriers. The Small Business
Administration (SBA) defines small entities by their amounts of
revenue, but FMCSA does not gather financial information on carriers.
We use 6 power units as a proxy for small entities. Hazardous materials
are thus more likely to be transported by motor carriers that are not
small than is freight transported by trucks in general (i.e., 41
percent of hazardous materials carriers are above the 6-power-unit
threshold, compared to 24 percent of the industry as a whole).
Although these small entities will have to keep records on the
status of all of their employees' hazardous materials endorsements,
there is no additional administrative cost to them because they already
have to maintain those records under the current system. These small
businesses might be adversely affected if the number of available
drivers who can qualify under TSA rules is significantly reduced. In
that case, employers might find that they have to pay hazardous
materials drivers a premium wage in order to continue to provide their
level of service. Aggregate criminal history data on CMV drivers have
never been compiled, however, and neither FMCSA nor TSA has any basis
for estimating the number who may be disqualified by the TSA rule.
Because this rule is expected to have only a minimal impact upon
small businesses, no special steps were taken to further minimize its
The FMCSA is not aware of any other rules or procedures that
duplicate or conflict with this rule.
Allowing differences in compliance or reporting for small entities
would be contrary to the intent of Congress in issuing this mandate.
The purpose of Sec. 1012 of the USA PATRIOT Act is to reduce the risk
that potential terrorists will gain access to hazardous materials. If
other, less costly, methods were available to attain the same end, they
would be employed instead. However, the FMCSA does not believe any such
Therefore, the FMCSA certifies that this rule will not have a
significant impact on a substantial number of small entities.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria in the Executive Order on Federalism (E.O. 13132, August 4,
1999, see 64 FR 43255, August 10, 1999) and it has been determined that
the rule does not have federalism implications or a substantial direct
effect on the States.
Although the CDL regulations (49 CFR part 383) issued to implement
the Commercial Motor Vehicle Safety Act of 1986 (CMVSA) apply to
commercial motor vehicles (CMVs) operating in intrastate as well as
interstate commerce [see 49 U.S.C. 31301(2)], they do not preempt State
law. Instead, the Department of Transportation is required to withhold
certain Federal-aid highway funds when a ``State does not comply
substantially with a requirement of [49 U.S.C.] 31311(a)'' [see 49
Sec. 1012 of the USA PATRIOT Act, however, codified the
requirements for background records checks of hazardous materials
drivers in 49 U.S.C. chapter 51. Regulations based on chapter 51
generally preempt inconsistent State, local, or tribal laws and
regulations [see Sec. 5125]. Notwithstanding its codification in
chapter 51, Sec. 1012 is essentially an amendment to the CDL statute.
That is especially apparent in Sec. 1012(b), which added a new
subparagraph (C) to the ``General driver fitness and testing''
requirements in Sec. 31305(a)(5) of the CMVSA. The amended provision
says that the Secretary of Transportation shall prescribe regulations
on minimum standards for testing and ensuring the fitness of an
individual operating a commercial motor vehicle. The regulations * * *
shall ensure that an individual who operates or will operate a
commercial motor vehicle carrying a hazardous material * * * is
licensed by a State to operate the vehicle after having first been
determined under section 5103a of this title as not posing a security
risk warranting denial of the license [49 U.S.C. 31305(a)(5)(C)]. Sec.
1012(b) thus transforms the procedures and result of the security
review described in 49 U.S.C. 5103a into a prerequisite for a hazardous
materials endorsement under chapter 313.
Sec. 1012(b) has additional ramifications. Under 49 U.S.C.
31311(a), [t]o avoid having amounts [of Federal-aid highway funds]
withheld from apportionment under section 31314 of this title, a State
shall comply with the following requirements: The State shall adopt and
carry out a program for testing and ensuring the fitness of individuals
to operate commercial motor vehicles consistent with the minimum
standards prescribed by the Secretary under section 31305(a) of this
title * * *.
Section 31314(a), in turn, provides that [t]he Secretary of
Transportation shall withhold 5 percent of the amount [of Federal-aid
highway funds] required to be apportioned to a State under section
104(b) (1), (3), and (4) of title 23 on the first day of the fiscal
year after the first fiscal year beginning after September 30, 1992,
throughout which the State does not comply substantially with a
requirement of section 31311(a) of this title.
A State that issues a hazardous materials endorsement to a CDL
without complying with the TSA requirements implementing Sec. 5103a
has thus violated Sec. 31305(a)(5)(C). Since Sec. 31311(a)(1)
requires compliance with Sec. 31305(a) in order to avoid funding
sanctions under Sec. 31314, the FMCSA can withhold for the first year
of noncompliance 5% (and 10% thereafter) of a State's annual
apportionment of National Highway System, Surface Transportation
Program, and Interstate Maintenance funds [23 U.S.C. 104(b) (1), (3),
and (4), respectively].
In short, because the purpose of Sec. 1012(b) was to incorporate
the background records check into the CDL requirements, and because
noncompliance with the CDL requirements triggers funding sanctions,
FMCSA has concluded that the only appropriate means to enforce TSA's
rule implementing Sec. 1012 is to withhold Federal-aid highway funds
from States that fail to comply with that rule or this rule. In view of
the obvious implications of Sec. 1012(b), the agency is persuaded that
non-complying States cannot be subjected to the mechanisms otherwise
available to enforce regulations based on chapter 51, i.e., injunctive
action [Sec. Sec. 5122, 5125], civil penalties [Sec. 5123] or
criminal penalties [Sec. 5124].
The FMCSA has determined that the rule does not have federalism
implications, i.e., 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 (Sec. 1(a), E.O. 13132). In order to avoid the withholding
of Federal-aid highway funds, all of the States have long since adopted
CDL programs consistent with
the requirements of 49 CFR part 383. The security risk review mandated
by this rule and the corresponding TSA rule is merely an incremental
addition to the broader CDL requirements and will be managed by State
licensing personnel who are already familiar with that program. The
amendments to part 383 included in this rule will not have a
substantial direct effect on the States or change the relationship
between the national government and the States.
Sec. 4(c) of E.O. 13132 also provides that [a]ny regulatory
preemption of State law shall be restricted to the minimum level
necessary to achieve the objectives of the statute pursuant to which
the regulations are promulgated. FMCSA has tailored this IFR as
narrowly as possible to the purposes of Sec. 1012. Furthermore, the
rule does not preempt State law.
Sec. 3(a) of E.O. 13132 requires Federal agencies, ``[t]o the
extent practicable,'' to consult with State and local officials before
taking actions that have federalism implications. As discussed above,
this rule does not have federalism implications requiring consultation.
In any case, formal consultation with the States before issuing this
rule would not be ``practicable,'' because the objectives of Sec. 1012
and the continued threat of terrorism require implementation of the
security risk review at the earliest possible moment. Nonetheless,
FMCSA has communicated with all of the States on this issue. The
Assistant Administrator wrote to licensing officials in each State on
October 31, 2001, briefly summarizing Sec. 1012 and asking them to
continue issuing and renewing hazardous materials endorsements until
the rulemaking necessary to implement the new requirement had been
completed. Furthermore, DOT and TSA have held extensive discussions
with the Compact Council created pursuant to the National Crime
Prevention and Privacy Compact Act of 1998 [42 U.S.C. 14616] about the
requirement that fingerprints be submitted when seeking criminal
history record checks for noncriminal justice purposes. The new
regulations and the corresponding implementation plans have been
explained to Compact Council, nine of whose fifteen members are State
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. An analysis of
this rule has been made by the FMCSA, and it has been determined that
it will affect the information collection burden associated with the
currently-approved information collection covered by OMB Control No.
2126-0011, entitled ``Commercial Driver Licensing and Test Standards.''
The OMB approved the most recent update of this information on October
3, 2002, at 819,982 burden hours. The approval period runs through
October 31, 2005.
This IFR will increase the burden hours associated with this
information collection by 17,250 hours. The implementation of this IFR
will require the State DMVs to enter into the Commercial Driver's
License Information System (CDLIS) an indication of whether the
applicant is a U.S. citizen or resident alien (and if a resident alien,
the alien registration number); and whether the driver is or is not a
security risk. We estimate the time required to add this information to
CDLIS to be approximately 1 minute, and the number of annual hazardous
materials endorsement applications to be 1,035,000 per year. Therefore,
we estimate the additional burden associated with this IFR to be 17,250
hours (1,035,000 x 1 minute, divided by 60 minutes).
We estimate the additional costs to the State DMVs associated with
this information collection to be approximately $765,000. This will be
a one-time cost that each State and the District of Columbia (at
$15,000 per State) would need to expend to update their systems to
accommodate the new fields and recordkeeping requirements of this IFR.
We particularly request your comments on whether the collection of
information is necessary for FMCSA to achieve the purpose of Sec. 1012
in helping to prevent terrorist incidents, including (1) whether the
information is useful to this goal; (2) the accuracy of the estimate of
the burden of the information collection; (3) ways to enhance the
quality, utility and clarity of the information collected; and (4) ways
to minimize the burden of the collection of information on respondents,
including the use of automated collection techniques or other forms of
You may submit comments on the information collection burden
addressed by this interim final rule to the Office of Management and
Budget (OMB). The OMB must receive your comments by August 4, 2003. You
must mail or hand deliver your comments to: Attention: Desk Officer for
the Department of Transportation, Docket Library, Office of Information
and Regulatory Affairs, Office of Management and Budget, Room 10102,
725 17th Street, NW., Washington, DC 20503.
National Environmental Policy Act
FMCSA has analyzed this rule under the National Environmental
Policy Act of 1969 (42 U.S.C. 4321 et seq.) (NEPA) and has determined
that it will not have a significant impact on the quality of the human
environment. The rule will slightly expand the number of commercial
drivers who must obtain a hazardous materials endorsement and require
minor changes to State regulations and procedures. The TSA rule, which
this rule is designed in part to enforce, will disqualify an unknown
number of drivers who have been convicted of certain offenses from
holding a hazardous materials endorsement to a CDL. That should reduce
the risk that hazardous materials could be used as a terrorist weapon.
The net effect of these two rules on the human and physical environment
is expected to be positive.
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 Section 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.
FMCSA anticipates that the TSA rule, which this rule requires the
States to comply with, will prevent some drivers with criminal records
from receiving or renewing hazardous materials endorsements. As
mentioned above, however, comprehensive criminal history data on CMV
drivers do not exist, and neither FMCSA nor TSA can reliably estimate
the number who may be disqualified by the TSA rule. Anecdotal evidence
suggests that the number of drivers who have committed the serious
disqualifying offenses listed in the TSA rule is quite small. In
addition, endorsements will henceforth
be available only to U.S. citizens or lawful permanent resident aliens.
FMCSA has no information on the number of temporary legal--or illegal--
aliens who may currently hold hazardous materials endorsements. This
rule has no effect on the supply or use of energy, nor do we believe it
will cause a shortage of drivers qualified to distribute energy (e.g.,
gasoline, fuel oil, etc.). If the number of drivers with hazardous
materials endorsements drops noticeably as a result of this rule, they
might be able to command higher wages, but we expect the supply of
drivers to be adequate to meet the demand.
Unfunded Mandates Reform Act of 1995
This rule does not impose a Federal mandate resulting in the
expenditure by State, local, or tribal governments, in the aggregate,
or by the private sector, of $100 million or more in any one year. (2
U.S.C. 1531 et seq.) States will have to make changes to their
licensing procedures under this rule. Associated with those changes
will be modest set-up costs as well as more significant ongoing costs
to process the applications for hazardous materials endorsements.
However, we assume that States will charge applicants for a hazardous
materials endorsement a fee sufficient to cover their added costs.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under E.O. 12630, Governmental Actions and
Interference with Constitutional Protected Property Rights.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in Sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
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 IFR requires States to comply with the TSA rule on
background records checks prior to obtaining a hazardous materials
endorsement authorizing a driver to transport hazardous materials in
commerce. Specifically, it requires the applicant to pass a TSA
screening process for the purpose of determining whether the individual
is a security risk. This action will not cause an increase in the
number of hazardous materials incidents, nor increase the number of
non-hazardous materials commercial motor vehicle crashes. Its purpose
is to ensure public safety by preventing the use of a commercial motor
vehicle hauling hazardous materials in the commission of terrorist acts
against the United States. 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
List of Subjects
49 CFR Part 383
Administrative practice and procedure, Commercial driver's license,
Commercial motor vehicles, Highway safety, Motor carriers.
49 CFR Part 384
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
For the reasons set forth in the preamble, the FMCSA amends title 49,
Code of Federal Regulations, chapter III, as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
1. Revise the authority citation for part 383 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. Amend Sec. 383.5 to add in alphabetical order a new definition for
``alien'' and to revise the definitions of ``commercial motor vehicle''
and ``hazardous materials'' as follows:
Sec. 383.5 Definitions.
* * * * *
Alien means any person not a citizen or national of the United
* * * * *
* * * * *
Commercial motor vehicle (CMV) means a motor vehicle or combination
of motor vehicles used in commerce to transport passengers or property
if the motor vehicle--
(a) Has a gross combination weight rating of 11,794 kilograms or
more (26,001 pounds or more) inclusive of a towed unit(s) with a gross
vehicle weight rating of more than 4,536 kilograms (10,000 pounds); or
(b) Has a gross vehicle weight rating of 11,794 or more kilograms
(26,001 pounds or more); or
(c) Is designed to transport 16 or more passengers, including the
(d) Is of any size and is used in the transportation of hazardous
materials as defined in this section.
* * * * *
Hazardous materials means any material that has been designated as
hazardous under 49 U.S.C. 5103 and is required to be placarded under
subpart F of 49 CFR part 172 or any quantity of a material listed as a
select agent or toxin in 42 CFR part 73.
* * * * *
3. Amend Sec. 383.23 to revise paragraph (c) to read as follows:
Sec. 383.23 Commercial driver's license.
* * *
(c) Learner's permit. State learners' permits, issued for limited
time periods according to State requirements, shall be considered valid
commercial drivers' licenses for purposes of behind-the-wheel training
on public roads or highways, if the following minimum conditions are
(1) The learner's permit holder is at all times accompanied by the
holder of a valid CDL;
(2) He/she either holds a valid automobile driver's license, or has
passed such vision, sign/symbol, and knowledge tests as the State
issuing the learner's permit ordinarily administers to applicants for
automotive drivers' licenses; and
(3) He/she does not operate a commercial motor vehicle transporting
hazardous materials as defined in Sec. 383.5.
4. Amend Sec. 383.71 to add a new paragraph (a)(9) and revise
paragraphs (b)(3), (c)(3) and (d) to read as follows:
Sec. 383.71 Driver application procedures.
(a) * * *
(9) If applying for a hazardous materials endorsement, comply with
Transportation Security Administration requirements codified in 49 CFR
Part 1572, and provide proof of citizenship or immigration status as
specified in Table 1 to this section. A lawful permanent resident of
the United States requesting a hazardous materials endorsement must
additionally provide his or her Bureau of Citizenship and Immigration
Services (BCIS) Alien registration number.
Table 1 to Sec. 383.71--List of Acceptable Proofs of Citizenship or
Status Proof of status
U.S. Citizen............................ [sbull] U.S. Passport
[sbull] Certificate of birth
that bears an official seal
and was issued by a State,
county, municipal authority,
or outlying possession of the
[sbull] Certification of Birth
Abroad issued by the U.S.
Department of State (Form FS-
545 or DS 1350)
[sbull] Certificate of
Naturalization (Form N-550 or
[sbull] Certificate of U.S.
Citizenship (Form N-560 or N-
Lawful Permanent Resident............... [sbull] Permanent Resident
Card, Alien Registration
Receipt Card (Form I-551)
[sbull] Temporary I-551 stamp
in foreign passport
[sbull] Temporary I-551 stamp
on Form I-94, Arrival/
Departure Record, with
photograph of the bearer
[sbull] Reentry Permit (Form I-
(b) * * *
(3) If the applicant wishes to retain a hazardous materials
endorsement, he/she must comply with the requirements for such
endorsement specified in Sec. 383.71(a)(9) and State requirements as
specified in Sec. 383.73(b)(4);
* * * * *
(c) * * *
(3) If a person wishes to retain a hazardous materials endorsement,
he/she must comply with the requirements specified in Sec.
383.71(a)(9) and pass the test specified in Sec. 383.121 for such
* * * * *
(d) License upgrades. When applying to operate a commercial motor
vehicle in a different group or endorsement from the group or
endorsement in which the applicant already has a CDL, all persons
(1) Provide the necessary certifications as specified in Sec.
383.71(a)(1) and (a)(4);
(2) Pass all tests specified in Sec. 383.71(a)(2) and (a)(3) for
the new vehicle group and/or different endorsements; and
(3) To obtain a hazardous materials endorsement, comply with the
requirements for such endorsement specified in Sec. 383.71(a)(9).
* * * * *
5. Amend Sec. 383.73 to add new paragraphs (a)(5), and revise
paragraphs (b)(4) introductory text, (c)(4), and (d)(1) to read as
Sec. 383.73 State procedures.
(a) * * *
(5) For persons applying for a hazardous materials endorsement,
require compliance with the standards for such endorsement specified in
(b) * * *
(4) If such applicant wishes to retain a hazardous materials
endorsement, require compliance with standards for such endorsement
specified in Sec. 383.71(a)(9) and ensure that the driver has, within
the 2 years preceding the transfer, either:
* * * * *
(c) * * *
(4) If such applicant wishes to retain a hazardous materials
endorsement, require the driver to pass the test specified in Sec.
383.121 and comply with the standards specified in Sec. 383.71(a)(9)
for such endorsement.
(d) * * *
(1) Require such driver applicant to provide certifications, pass
tests, and meet applicable hazardous materials standards specified in
Sec. 383.71(d); and
* * * * *
6. Amend Sec. 383.93 to revise paragraph (b)(4) to read as follows:
Sec. 383.93 Endorsements.
* * * * *
(b) * * *
(4) Used to transport hazardous materials as defined in Sec.
* * * * *
7. Add a new Subpart I to this part to read as follows:
Subpart I--Requirement for Transportation Security Administration
approval of hazardous materials endorsement issuances
Sec. 383.141 General.
(a) Applicability date. Beginning on November 3, 2003, this section
applies to State agencies responsible for issuing hazardous materials
endorsements for a CDL, and applicants for such endorsements.
(b) Prohibition. A State may not issue, renew, upgrade, or transfer
a hazardous materials endorsement for a CDL to any individual
authorizing that individual to operate a commercial motor vehicle
transporting a hazardous material in commerce unless the Transportation
Security Administration has determined that the individual does not
pose a security risk warranting denial of the endorsement.
(c) Individual notification. At least 180 days prior to the
expiration date of the CDL or hazardous materials endorsement, a State
must notify the holder of a hazardous materials endorsement that the
individual must pass a Transportation Security Administration security
screening process as part of any application for renewal of the
hazardous materials endorsement. Before November 3, 2003, a State must
give the holder of a hazardous materials endorsement as much advance
notice as practicable. 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.
(d) Hazardous materials endorsement renewal cycle. Each State must
require that hazardous materials endorsements be renewed every 5 years
or less so that individuals are subject to a Transportation Security
Administration security screening requirement referenced in paragraph
(b) of this section at least every 5 years.
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
8. The authority citation for part 384 continues to read as follows:
Authority: 49 U.S.C. 31136, 31301 et seq., 31502; Sec. 103 of
Pub. L. 106-159, 113 Stat. 1753; and 49 CFR 1.73.
9. Add new Sec. 384.233 to read as follows:
Sec. 384.233 Background records checks.
(a) The State shall comply with Transportation Security
Administration requirements concerning background records checks for
drivers seeking to obtain, renew, transfer or upgrade a hazardous
materials endorsement in 49 CFR Part 1572, to the extent those
provisions impose requirements on the State.
(b) The State shall comply with each requirement of 49 CFR 383.141.
Issued on: April 25, 2003.
Warren E. Hoemann,
Acting Deputy Administrator.
[FR Doc. 03-10829 Filed 5-2-03; 8:45 am]