ILW.COM - the immigration portal Immigration Daily

Immigration Daily: the news source for legal professionals. Free! Join 35000+ readers

Home Page

Advanced search


Immigration Daily

Archives

Processing times

Immigration forms

Discussion board

Resources

Blogs

Twitter feed

Immigrant Nation

Attorney2Attorney

CLE Workshops

Immigration books

Advertise on ILW

VIP Network

EB-5

Chinese Immig. Daily

About ILW.COM

Connect to us

Make us Homepage

Questions/Comments


SUBSCRIBE

Immigration Daily

 

Chinese Immig. Daily



The leading
immigration law
publisher - over
50000 pages of free
information!

Copyright
©1995-
ILW.COM,
American
Immigration LLC.

Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here:



< Back to current issue of Immigration Daily < Back to current issue of Immigrant's Weekly

[Federal Register: May 5, 2003 (Volume 68, Number 86)]
[Rules and Regulations]               
[Page 23843-23850]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05my03-23]                         


[[Page 23843]]

-----------------------------------------------------------------------

Part V





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


[[Page 23844]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383 and 384

[Docket No. FMCSA-2001-11117]
RIN 2126-AA70

 
Limitations on the Issuance of Commercial Driver's Licenses with 
a Hazardous Materials Endorsement

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

ACTION: Interim final rule; 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 
Register.

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 on-line.
    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.

SUPPLEMENTARY INFORMATION:

Background

    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.

Definitions

    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 
United States.

[[Page 23845]]

    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 
endorsement.

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 
endorsement.
    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

[[Page 23846]]

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

[[Page 23847]]

a full-blown regulatory analysis, since the anticipated impact is 
fairly small.
    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 
impact.
    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 
alternatives exist.
    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 
U.S.C. 31314].
    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

[[Page 23848]]

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 
officials.

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 
information technology.
    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

[[Page 23849]]

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 
affect children.

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.


0
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 
PENALTIES [AMENDED]

0
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.


0
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 
States.
* * * * *
* * * * *
    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 
driver; or
    (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.
* * * * *

0
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 
met:
    (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.

0
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.

[[Page 23850]]



  Table 1 to Sec.   383.71--List of Acceptable Proofs of Citizenship or
                               Immigration
------------------------------------------------------------------------
                 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
                                           United States
                                          [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
                                           N-570)
                                          [sbull] Certificate of U.S.
                                           Citizenship (Form N-560 or N-
                                           561)
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-
                                           327)
------------------------------------------------------------------------

    (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 
endorsement.
* * * * *
    (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 
shall:
    (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).
* * * * *

0
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 
follows:


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 
Sec.  383.71(a)(9).
    (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
* * * * *

0
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.  
383.5, or
* * * * *

0
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 
[AMENDED]

0
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.


0
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]
BILLING CODE 4910-EX-P




Immigration Daily: the news source for
legal professionals. Free! Join 35000+ readers
Enter your email address here: