Limitations on the Issuance of Commercial Driver's Licenses With a Hazardous Materials Endorsement; Interim Final Rule Made Final

Limitations on the Issuance of Commercial Driver's Licenses With a Hazardous Materials Endorsement; Interim Final Rule Made Final

Limitations on the Issuance of Commercial Driver's Licenses With a Hazardous Materials Endorsement; Interim Final Rule Made Final

Raymond P. Martinez
Federal Motor Carrier Safety Administration
1 October 2019

[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Rules and Regulations]
[Pages 52029-52035]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20584]

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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; Interim Final Rule Made Final

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

ACTION: Final rule.

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SUMMARY: FMCSA adopts those requirements of the interim final rule
(IFR) published on May 5, 2003 (2003 IFR), and the IFR published on
April 29, 2005 (2005 IFR), which have not previously been finalized, as
final without change. The 2003 IFR amended 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) in the Department of Homeland Security has first
conducted a security threat assessment and determined that the
applicant does not pose a security risk warranting denial of the
hazardous materials endorsement, as required by the Uniting and
Strengthening America by Providing Appropriate Tools Required to
Intercept and Obstruct Terrorism Act of 2001 (USA PATRIOT Act). The
2005 IFR amended the FMCSRs to conform to the TSA's compliance date and
reduce the amount of advance notice that States must provide to drivers
that a security threat assessment will be performed when they renew a
hazardous materials endorsement. In addition, this rule incorporates a
provision of the Implementing Recommendations of the 9/11 Commission
Act of 2007 and two provisions of the FAA Reauthorization Act of 2018,
which together authorize a State to issue a license to operate a motor
vehicle transporting hazardous material in commerce to an individual
who holds a valid transportation security card. In particular, the
Agency incorporates TSA's definition of a Transportation Worker
Identification Credential (TWIC) as equivalent to a Transportation
Security Card (TSC).

DATES: This final rule is effective on October 31, 2019.

FOR FURTHER INFORMATION CONTACT: Mr. Selden Fritschner, CDL Division,
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE,
Washington, DC 20590-0001; by email at Selden.Fritschner@dot.gov, or by
telephone at (202) 366-0677. If you have questions on viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Rulemaking Documents

A. Availability of Rulemaking Documents

For access to docket FMCSA-2001-11117 to read background documents
and comments received, go to http://www.regulations.gov at any time, or
to Docket Services at U.S. Department of Transportation, Room W12-140,
1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.

B. Privacy Act

In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.transportation.gov/privacy.

II. Executive Summary

A. Purpose of the Regulatory Action

This final rule adopts the provisions of the IFR published on May
5, 2003 (68 FR 23844) that have not previously been made final, and the
provisions of the subsequent IFR published on April 29, 2005 (70 FR
22268). This is an administrative action to finalize these rules. This
final rule includes conforming changes to incorporate a provision of
the Implementing Recommendations of the 9/11 Commission Act of 2007 (9/
11 Act) (Pub. L. 110-53, Aug. 3, 2007) and two provisions of the FAA
Reauthorization Act of 2018 (FAA Act) (Pub. L. 115-254, Oct. 5, 2018).

B. Costs and Benefits

This rulemaking does not make substantive changes to the
obligations of regulated entities. It adopts as final certain elements
of the 2003 IFR and the 2005 IFR and includes non-discretionary
provisions from the 9/11 Act and the FAA Act. This rulemaking has no
incremental impacts on the regulated entities.

III. Legal Basis for the Rulemaking

The legal basis for the 2003 IFR was explained in that document (68
FR 23844) and repeated in the 2005 IFR (70 FR 22268). Because those
IFRs are available in the docket listed at the beginning of this
document, the legal basis will not be repeated in detail here.
Briefly, section 1012 of the USA PATRIOT Act enacted 49 U.S.C.
5103a, which prohibits States from issuing a driver a hazardous
materials endorsement to his/her CDL until the Secretary of
Transportation has first determined that the driver does not pose a
security risk warranting denial of the endorsement (Pub. L. 107-56, 115
Stat. 272, 396, Oct. 26, 2001).
The 9/11 Act made a technical correction to replace the reference
to the ``Secretary of Transportation'' in 49 U.S.C. 5103a(a)(1) with a
reference to the ``Secretary of Homeland Security'' (Sec. 1556, Pub. L.
110-53, 121 Stat. 266, 475, Aug 3, 2007). The change did not alter the
legal basis of the 2003 and 2005 IFRs because those actions rested on a
different provision, 49 U.S.C. 31305(a)(5)(C). The 9/11 Act also
provided that an individual who has a valid transportation employee
identification card issued by the Secretary of Homeland Security shall
be deemed to have met the background check required by 49 U.S.C. 5103a.
The FAA Act (Pub. L. 115-254, Oct. 5, 2018) provides that an
applicable individual subject to credentialing or a background
investigation may satisfy that requirement by obtaining a valid TSC.
Section 1978 of the FAA Act amended 49 U.S.C. 5103a(a)(1), by allowing
a State to issue a license to operate a motor vehicle transporting
hazardous material in commerce to an individual who holds a valid TSC
issued under 46 U.S.C. 70105.
The Administrative Procedure Act requires an Agency to promulgate
final rules only after prior notice and opportunity for comment, unless
the Agency finds good cause that notice and opportunity for public
comment are ``impracticable, unnecessary, or contrary to the public
interest'' (5 U.S.C. 553(b)(3)(B)). FMCSA finds good cause that notice
and comment are

[[Page 52030]]

``unnecessary'' for this rule. This rule simply makes final certain
provisions of two interim final rules (IFRs) that have been in effect
since 2003 and 2005. The Agency accepted post-publication comments on
both IFRs, most recently in 2018 (see Limitation on the Issuance of
Commercial Driver's Licenses With a Hazardous Materials Endorsement,
Interim rules; re-opening of comment (83 FR 62503, Dec. 4, 2018)). Many
other provisions of both IFRs were made final by notice-and-comment
rulemaking after 2003 and 2005. In response to a comment filed when
this docket was reopened (83 FR 62503, Dec. 4, 2018), the Agency also
makes ministerial changes to incorporate provisions of the 9/11 Act and
the FAA Act. None of these actions changes the burden on drivers, motor
carriers, or State driver licensing agencies. The incorporation of
provisions in the 9/11 Act and FAA Act merely codifies in the FMCSRs
provisions already in effect by operation of law. Specifically, the
Agency incorporates TSA's definition of a TWIC as equivalent to a TSC.
Because public comments would not result in changes to any of these
actions, additional notice and opportunity for comment are unnecessary.

IV. Background

Regulatory History

On May 5, 2003, FMCSA published an IFR titled ``Limitations on the
Issuance of Commercial Driver's Licenses with a Hazardous Materials
Endorsement'' (68 FR 23844). In that document, the Agency revised its
regulations to require State driver licensing agencies to issue or
renew a hazardous materials endorsement for a CDL only if TSA has first
determined that the applicant does not pose a security risk warranting
denial of such endorsement. A CDL renewal, transfer, or upgrade was
also considered a new issuance and fell within the scope of these
requirements if it involved a hazardous materials endorsement. The IFR
implemented FMCSA's part of the requirements of section 1012 of the USA
PATRIOT Act, which limited the issuance of hazardous materials
licenses. Because FMCSA shares with TSA the responsibility for
implementing section 1012--codified in 49 U.S.C. 5103a and
31305(a)(5)(C)--TSA concurrently published an IFR containing
regulations governing the security risk determination process in 49 CFR
parts 1570 and 1572 (May 5, 2003, 68 FR 23852). FMCSA received
comments, which are summarized in a document filed in the docket. No
public meeting was requested and none was held. The IFR became
effective upon publication on May 5, 2003.
On April 29, 2005, FMCSA published an IFR titled ``Limitations on
the Issuance of Commercial Driver's Licenses with a Hazardous Materials
Endorsement'' (70 FR 22268). That rule was issued as an IFR because it
related to the 2003 IFR. In the preamble, FMCSA wrote that the 2005 IFR
would be subsumed into the 2003 IFR when that rulemaking was finalized.
FMCSA's 2003 IFR provided a specific date on which States became
subject to the new requirement. The 2005 IFR amended the FMCSRs to
cross-reference the TSA's compliance date as the date when FMCSA's
companion requirements also became applicable (70 FR 22268). Consistent
with the TSA regulations, FMCSA also reduced the amount of advance
notice that States must provide to drivers that a security threat
assessment will be performed when they renew a hazardous materials
endorsement. FMCSA did not receive any comments on the 2005 IFR. No
public meeting was requested and none was held. The IFR became
effective upon publication on April 29, 2005.
Some of the provisions in the May 5, 2003 IFR were subsequently
changed in notice and comment rulemaking, and became final. They are
described in the following table. Those items listed as ``same'' in the
second column have not been changed since they were originally
implemented in 2003.

Regulatory Actions Related to This Final Rule
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Changed in post 2003
IFR provisions May 5, 2003 Current IFR notice and comment
status rulemaking
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Sec. 383.5 Alien............ Same.............
Sec. 383.5 CMV.............. ................. Definition of CMV was
revised May 9, 2011
(76 FR 26878);
October 2, 2014 (79
FR 59455); October
1, 2015 (80 FR
59072).
Sec. 383.5 Hazardous Same.............
materials.
Sec. 383.23(c) Learner's ................. Sec. 383.23 was
permit. revised May 9, 2011
(76 FR 26878,
26879). Requirements
for commercial
learner's permit
moved to Sec.
383.25.
Sec. 383.71(a)(9)........... ................. Sec. 383.71 was
revised May 9, 2011
(76 FR 26881).
Requirements of Sec.
383.71(a)(9) now
in Sec.
383.71(b)(8) and
(9).
Sec. 383.71(b)(3) [License ................. Sec. 383.71 was
transfer]. revised May 9, 2011
(76 FR 26881).
Requirements of Sec.
383.71(b)(3) now
in Sec.
383.71(c)(3).
Sec. 383.71(c)(3) [License ................. Sec. 383.71 was
renewal]. revised May 9, 2011
(76 FR 26881).
Requirements of Sec.
383.71(c)(3) now
in Sec.
383.71(d)(3).
Sec. 383.71(d) [License ................. Sec. 383.71 was
upgrades]. revised May 9, 2011
(76 FR 26881).
Requirements of Sec.
383.71(d) now in
Sec. 383.71(e)(1)-
(4).
Sec. 383.73(a)(5) [Initial ................. Sec. 383.73 was
licensure]. revised May 9, 2011
(76 FR 26883).
Requirements of Sec.
383.73(a)(5) moved
to Sec.
383.73(b)(8)
[Initial CDL].
Sec. 383.73(b)(4) [License ................. Sec. 383.73 was
transfers]. revised May 9, 2011
(76 FR 26883).
Requirements of Sec.
383.73(b)(4) now
in Sec.
383.73(c)(4)
[License transfers].
Sec. 383.73(c)(4) [License ................. Sec. 383.73 was
renewals]. revised May 9, 2011
(76 FR 26883).
Requirements of Sec.
383.73(c)(4) now
in Sec.
383.73(d)(1)
[License renewals].
Sec. 383.93(b)(4) Same.............
[Endorsement descriptions].
Part 383, Subpart I, Title.... Same.............
Sec. 383.141(a) Subsequent IFR... Revised by IFR April
[Applicability date]. 29, 2005 (70 FR
22271). Corrected in
a revision October
1, 2012 (77 FR
59825).
Sec. 383.141(b) Same.............
[Prohibition].
Sec. 383.141(c) [Individual Subsequent IFR... Revised by IFR April
notification]. 29, 2005 (70 FR
22271).
Sec. 383.141(d) [Hazardous Same.............
materials endorsement renewal
cycle].

[[Page 52031]]

Sec. 384.233 [Background Same.............
records checks].
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In a document published in the Federal Register on December 4, 2018
(83 FR 62503), FMCSA announced its plan to adopt the provisions of the
IFRs that had not previously been made final, and its intention to
incorporate sections 1977 and 1978 of the FAA Act. That document re-
opened the comment period for 15 days to ensure that interested parties
had an opportunity to offer comments on the prior IFRs and the
provisions from the FAA Act. The comment period closed on December 19,
2018. FMCSA received one comment, which is discussed below.

V. Discussion of the Interim Final Rules and Those Provisions Being
Finalized in This Final Rule

In the 2003 IFR, FMCSA amended the CDL driver application (Sec.
383.71) and State licensing (Sec. 383.73) procedures to require all
individuals to pass the TSA screening process when renewing, upgrading,
transferring, or newly applying for a CDL with a hazardous materials
endorsement. Similarly, the Agency added a new subpart I (Sec.
383.141) to prohibit 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. FMCSA added Sec.
383.141(c) to require a State to notify an individual at least 180 days
(6 months) prior to the expiration date of a CDL or hazardous materials
endorsement that he or she must pass the new TSA security screening
process. Finally, the Agency added Sec. 383.141(d) to require States
to adopt, at minimum, a 5-year renewal cycle for a CDL hazardous
materials endorsement.
To comply with statutory requirements, FMCSA added a definition of
``Alien.'' FMCSA also revised the definition 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.'' Additionally, in the definition
of ``Commercial motor vehicle'' (CMV) and in Sec. 383.93(b)(4), FMCSA
made conforming changes to ensure that drivers newly covered by the
hazardous materials definition are required to obtain a CDL with a
hazardous materials endorsement, and are subject to the TSA security
screening process. The Agency made changes to Sec. 383.23(c) to ensure
that the rules governing the CDL learner's permit were consistent with
TSA's implementing regulations. FMCSA also added Sec. 384.233 to
describe the requirements with which States must comply.
On April 29, 2005, FMCSA published another IFR that changed Sec.
383.141 to conform to changes in the TSA regulations. In Sec.
383.141(a), the Agency removed the applicability date and inserted a
cross-reference to the date in 49 CFR 1572.13(b). FMCSA also shortened
the time frame in Sec. 383.141(c) in which a State must give notice to
a holder from 180 days to 60 days. FMCSA required the notice to inform
the individual that he or she may initiate the security threat
assessment no later than 30 days before the date of expiration of the
endorsement, not the 90 days in the 2003 IFR.
As noted in the table above, many of these provisions have been
amended and finalized in separate regulatory actions occurring since
2005. Today's action will finalize the following provisions, which have
not been otherwise revised or finalized since they were first
promulgated in 2003 or 2005:
(1) Definition of ``Alien'' in Sec. 383.5;
(2) Definition of ``Hazardous materials'' in Sec. 383.5;
(3) Addition of paragraph (b)(4) to Sec. 383.93, requiring State-
issued endorsements on CDLs when the holder is operating a CMV used to
transport hazardous materials;
(4) Creation of the Subpart title for subpart I (Requirement for
Transportation Security Administration approval of hazardous materials
endorsement issuances);
(5) Addition of paragraphs (b) and (d) in Sec. 383.141,
prohibiting a State from issuing, renewing, upgrading, or transferring
a hazardous materials endorsement on a CDL unless TSA has determined
that the holder of the CDL does not pose a security risk, and
establishing a 5-year renewal cycle for hazardous materials
endorsements, respectively; and
(6) Addition of Sec. 384.233, requiring States to comply with any
TSA requirements regarding background checks for drivers seeking to
obtain, renew, transfer, or upgrade a hazardous materials endorsement.

VI. Comment Response

FMCSA solicited comments to both the 2003 and 2005 IFRs. The Agency
received over 50 comments on the 2003 IFR; a summary of those comments
is available in docket FMCSA-2001-11117. No comments were received on
the 2005 IFR.
The comments filed in the FMCSA docket by the Commercial Vehicle
Safety Alliance, the American Association of Motor Vehicle
Administrators, and various States focused almost entirely on TSA
requirements rather than the FMCSA rule, and most appear to have been
filed in the TSA docket as well. TSA's 2003 IFR required States to
begin fingerprint-based criminal records background checks by November
3, 2003. The comments of the Iowa Department of Transportation are
typical of those filed by other affected parties: ``[T]he compliance
date of November 3, 2003, does not provide a reasonable amount of time
in which to make changes to the Iowa Administrative Code, to make
technical amendments to state statutes, to make appropriate computer
programming changes, to train employees and to put in place the
mechanism with law enforcement agencies for fingerprinting services or
contract with a third party for such services. Holding the
jurisdictions to an unreasonable compliance date may place every state
into a status of noncompliance with a CDL program we have worked hard
to be compliant with since 1992.'' In response to these and subsequent
objections, TSA moved the compliance date for fingerprint-based
background checks, first to April 1, 2004 (68 FR 63033, Nov. 7, 2003)
and then to January 31, 2005 (69 FR 17969, Apr. 6, 2004).
Individual drivers, trucking companies, and several States
commented on TSA's list of offenses that would permanently disqualify a
driver from obtaining a hazardous materials endorsement. TSA therefore
amended that list in an IFR of November 24, 2004 (69 FR 68720).
Finally, many States raised technical questions about the necessary
electronic interface with TSA and the Federal Bureau of Investigation,
which compares the fingerprints used for the criminal check against
available

[[Page 52032]]

criminal rap sheets. These were not strictly regulatory issues and were
resolved over time through technical and administrative solutions.
FMCSA's IFR of April 29, 2005, simply required the States to comply
with the various changes TSA had implemented over the previous two
years.
In short, the issues raised by commenters in 2003 are moot because
they involved procedural questions that have been resolved and
implementation deadlines that have long passed. The questions posed by
commenters have been resolved outside the context of the IFRs, and
requests for clarification of the IFRs or the TSA rules have been
satisfied through direct contacts with commenters and other affected
parties. Most importantly, commenters' objections have been met by
significant amendments to the TSA rules on background checks and by
subsequent conforming changes to the FMCSA regulations.
As noted earlier, FMCSA re-opened the comment period on these two
IFRs in late 2018, and received one comment, jointly submitted by The
National Tank Truck Carriers, Inc. (NTTC) and the American Trucking
Associations (ATA), regarding Sec. 1978 of the FAA Act. NTTC and ATA
called for an update of 49 CFR 383.141, arguing that States are
empowered by 49 U.S.C. 5103(a) to issue hazardous materials
endorsements to drivers holding TWIC cards. NTTC and ATA requested that
FMCSA issue guidance to ensure that States adopt a common standard.
NTTC and ATA maintained that FMCSA is in a better position to instruct
States on how best to verify a TWIC's validity. NTTC and ATA argued
that, by virtue of 6 U.S.C. 1206 and Sec. 1978 of the FAA Act, Congress
intended the State driver licensing agencies and FMCSA to be the
primary actors in regulating the issuance of hazardous material
endorsements when TSA background checks are not required.
Accordingly, NTTC and ATA requested that the Agency:
Include 6 U.S.C. 1206 into the legislative authority for
hazardous materials endorsement background checks;
Modify the requirements on States for issuing hazardous
materials endorsements to conform with Sec. 1978 of the FAA Act,
including the addition of a definition for TWIC; and
Advise and liaise with TSA to modify 49 CFR part 1572,
subpart A, to conform with Sec. 1978 of the FAA Act.
NTTC and ATA requested expansion of the rule's legislative
authority section to include Sec. 1556(b) of the Implementing
Recommendations of the 9/11 Commission Act of 2007, codified at 6
U.S.C. 1206. Section 1206 provides that an individual who has a valid
transportation employee identification card issued under 46 U.S.C.
70105 shall be deemed to have met the background records check required
under 49 U.S.C. 5103a. Although Sec. 1206 is directed to the Department
of Homeland Security, and not FMCSA, 49 U.S.C. 31305(a)(5)(C) requires
this Agency to issue regulations to ensure that a CDL applicant ``is
licensed by a State to operate the [commercial motor] vehicle after
having first been determined under section 5103a of this title as not
posing a security risk warranting denial of the license.'' To carry out
Sec. 31305(a)(5)(C), FMCSA must be able to implement the mandate of 6
U.S.C. 1206 and the amendments to 49 U.S.C. 5103a. The authority of
those provisions is therefore implicitly delegated to FMCSA and will be
listed in the authority citation for 49 CFR part 383.
Further, NTTC and ATA requested modification of Sec. 383.141 to
properly vest the authority to issue hazardous materials endorsements
to individuals who hold TWICs with State driver licensing agencies.
FMCSA makes this adjustment to the regulation pursuant to the FAA Act.
The Agency is also adding a definition of TWIC as requested by the
commenter, to ensure there is no confusion among State driver licensing
agencies or drivers.
Regarding the request that FMCSA liaise with the TSA to update 49
CFR parts 1570 and 1572 to ensure that they are grounded in
congressionally-delegated authority, FMCSA will forward this comment to
TSA, which has the sole authority to make changes to the cited
regulations.

VII. Regulatory Analyses

A. Executive Order (E.O). 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures

FMCSA determined that this final rule is not a significant
regulatory action under section 3(f) of Executive Order (E.O.) 12866
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, as
supplemented by E.O. 13563 (76 FR 3821, Jan. 21, 2011), Improving
Regulation and Regulatory Review, and does not require an assessment of
potential costs and benefits under section 6(a)(3) of that Order.
Accordingly, the Office of Management and Budget (OMB) has not reviewed
it under that Order. It is also not significant within the meaning of
DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22,
1980; 44 FR 11034, Feb. 26, 1979).
In a document published on December 4, 2018, FMCSA announced its
plan to adopt the provisions of the IFRs that had not previously been
made final, as well as its intention to incorporate sections 1977 and
1978 of the FAA Act. These sections, which were enforceable upon the
Act's publication on October 5, 2018, provided an exemption from the
TSA screening process for individuals holding a valid TWIC. This final
rule adds Sec. 383.141(b)(2) to 49 CFR to be consistent with this
provision in the FAA Act. This rulemaking also adopts as final the
elements of the 2003 IFR and the 2005 IFR.
While some parts of the 2003 IFR remain unchanged, other elements
have been changed and made final by subsequent rulemaking. This
rulemaking finalizes the following sections:
Section 383.5 (Definitions of ``Alien'', ``Hazardous
materials'', and ``TWIC'');
Section 383.93(b)(4) (Endorsements);
Section 383.141(b), (c), and (d) (Subpart I--Requirement
for Transportation Security Administration Approval of Hazardous
Materials Endorsement Issuances); and
Section 384.233 (Background Records Checks).
Because this rulemaking is procedural and simply finalizes those
provisions of the 2003 and 2005 IFRs that are not already final, and
incorporates provisions of the 9/11 Act and the FAA Act, this
rulemaking does not result in an incremental change from the IFRs.
Those statutes have been in effect since their enactment in 2007 and
2018, respectively. Thus, this rulemaking has no incremental impacts on
the regulated entities.

B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs

This rule is not an E.O. 13771 regulatory action because this rule
is not significant under E.O. 12866.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et
seq.), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal
agencies to consider the impact of their regulatory proposals on small
entities, analyze effective alternatives that minimize small entity
impacts, and make their analyses available for public comment.

[[Page 52033]]

The term ``small entities'' means small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000.\1\ Accordingly, DOT policy requires an
analysis of the impact of all regulations on small entities, and
mandates that agencies strive to lessen any adverse effects on these
entities. Section 605 of the RFA allows an Agency to certify a rule, in
lieu of preparing an analysis, if the rulemaking is not expected to
have a significant economic impact on a substantial number of small
entities.
---------------------------------------------------------------------------

\1\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Available
at: https://www.sba.gov/advocacy/regulatory-flexibility-act
(accessed Feb. 13, 2017).
---------------------------------------------------------------------------

This rule directly affects the States and driver applicants for a
hazardous materials endorsement. Under the standards of the RFA, as
amended by the SBREFA, neither the States nor driver applicants for a
hazardous materials endorsement are small entities. States are not
considered small entities because they do not meet the definition of a
small entity in section 601 of the RFA. Specifically, States are not
considered small governmental jurisdictions under section 601(5) of the
RFA, both because State government is not included among the various
levels of government listed in section 601(5), and because, even if
this were the case, no State, including the District of Columbia, has a
population of less than 50,000, which is the criterion for a
governmental jurisdiction to be considered small under section 601(5)
of the RFA. Driver applicants for a hazardous materials endorsement are
not considered small entities because they too do not meet the
definition of a small entity in section 601 of the RFA. Specifically,
driver applicants for a hazardous materials endorsement are considered
neither a small business under section 601(3) of the RFA, nor are they
considered a small organization under section 601(4) of the RFA.
Therefore, this final rule does not have an impact on a substantial
number of small entities.
Accordingly, I hereby certify that the action does not have a
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

In accordance with section 213(a) of the SBREFA, FMCSA wants to
assist small entities in understanding this final rule so that they can
better evaluate its effects on themselves and participate in the
rulemaking initiative. If the final rule will affect your small
business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance; please
consult the FMCSA point of contact, Mr. Selden Fritschner, listed in
the FOR FURTHER INFORMATION CONTACT section of this final rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.

E. Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $161 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2017 levels) or more in any 1 year. Though this final rule will not
result in such an expenditure, the Agency does discuss the effects of
this rule elsewhere in this preamble.

F. Paperwork Reduction Act

This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

A rule has implications for federalism under section 1(a) of
Executive Order 13132 if it has ``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.'' When FMCSA issued the original IFRs on
May 5, 2003 (68 FR 28344), and April 29, 2005 (70 FR 22268), it
determined that those rules did not impose substantial direct costs on
or for States, nor did they limit the policymaking discretion of
States. Nothing in this document preempts any State law or regulation.
Therefore, this rule does not have sufficient federalism implications
to warrant the preparation of a Federalism Impact Statement.

H. E.O. 12988 (Civil Justice Reform)

This final rule 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.

I. E.O. 13045 (Protection of Children)

E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this final rule is not economically
significant. Therefore, no analysis of the impacts on children is
required. In any event, this regulatory action could not
disproportionately affect children.

J. E.O. 12630 (Taking of Private Property)

FMCSA reviewed this final rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have taking implications.

K. Privacy Impact Assessment

Because the 2003 IFR was in effect prior to the enactment of
section 522, of title I of division H of the Consolidated
Appropriations Act, 2005 (Pub. L. 108-447, 118 Stat. 2809, 3268, Dec.
8, 2004, 5 U.S.C. 552a note), FMCSA was not required to provide a
Privacy Impact Assessment (PIA) for that rulemaking. This rulemaking is
an administrative action to clarify the legal status of the 2003 and
2005 IFRs, and it makes minor conforming changes to the CFR to
incorporate subsequent legislation. FMCSA, however, submitted a Privacy
Threshold Assessment (PTA) analyzing the rulemaking to the Secretary of
Transportation's Privacy Office for formal adjudication. FMCSA provides
the following description of the PTA, describing current requirements,
for information.
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, requires the Agency to conduct a PIA of a
regulation that will affect the privacy of individuals. Any such

[[Page 52034]]

assessment must consider impacts of a final rule on the privacy of
information in an identifiable form and related matters. The FMCSA
Privacy Officer and the DOT Privacy Officer have evaluated the risks
and effects this rulemaking might have on collecting, storing, and
sharing personally identifiable information (PII) and have evaluated
protections and alternative information handling processes in
developing the final rule in order to mitigate potential privacy risks
and have determined that this rule does not require the collection of
PII by FMCSA. This rulemaking has the ultimate effect of requiring
individuals to provide sensitive PII to the Transportation Security
Administration (TSA). Individuals should refer to the TSA privacy
office website at https://www.dhs.gov/privacy-documents-transportation-security-administration-tsa for more information about TSA's collection
and use of the data.
The E-Government Act of 2002, Public Law 107-347, Sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a PIA for new or substantially changed technology that collects,
maintains, or disseminates information in an identifiable form. No new
or substantially changed technology would collect, maintain, or
disseminate information as a result of this rule. This is formally
documented in the PTA submitted to the DOT Privacy Officer. Therefore,
FMCSA has not conducted a privacy impact assessment.

L. E.O. 12372 (Intergovernmental Review)

The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.

M. E.O. 13211 (Energy Supply, Distribution, or Use)

FMCSA has analyzed this final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211. The
Administrator of the Office of Information and Regulatory Affairs has
not designated it as a significant energy action. Therefore, it does
not require a Statement of Energy Effects under Executive Order 13211.

N. E.O. 13175 (Indian Tribal Governments)

This rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.

O. National Technology Transfer and Advancement Act (Technical
Standards)

The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) directs agencies to use voluntary consensus standards in their
regulatory activities unless the agency provides Congress, through OMB,
with an explanation of why using these standards would be inconsistent
with applicable law or otherwise impractical. Voluntary consensus
standards (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) are standards that are developed or adopted by
voluntary consensus standards bodies. This rule does not use technical
standards. Therefore, FMCSA did not consider the use of voluntary
consensus standards.

P. Environment (National Environmental Policy Act of 1969 (NEPA))

FMCSA analyzed this rule for the purpose of NEPA (42 U.S.C. 4321 et
seq.) and determined this action is categorically excluded from further
analysis and documentation in an environmental assessment or
environmental impact statement under FMCSA Order 5610.1 (69 FR 9680,
Mar. 1, 2004), Appendix 2, paragraph 6.d. That categorical exclusion
relates to establishing regulations and actions taken pursuant to these
regulations that concern the training, qualifying, licensing,
certifying, and managing of personnel.

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, FMCSA amends title 49,
Code of Federal Regulations, chapter III as follows.

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES

0
1. The authority citation for part 383 continues to read as follows:

Authority: 6 U.S.C. 1206, 49 U.S.C. 521, 31136, 31301 et seq.,
and 31502; secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748,
1766, 1767; sec. 1012(b) of Pub. L. 107-56; 115 Stat. 272, 297, sec.
4140 of Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L.
112-141, 126 Stat. 405, 830; secs. 5401 and 7208 of Pub. L. 114-94,
129 Stat. 1312, 1546, 1593; and 49 CFR 1.87.

0
2. In Sec. 383.5:
0
a. Adopt as final without change the definitions of ``Alien'' and
``Hazardous materials'' of the interim rule published May 5, 2003 (68
FR 23844); and
0
b. Add, in alphabetical order, a definition for ``TWIC''.
The addition reads as follows:

Sec. 383.5 Definitions.

* * * * *
TWIC means Transportation Worker Identification Credential as that
term is defined in 49 CFR 1570.3, which is the transportation security
card issued by TSA under the authority of 46 U.S.C. 70105.
* * * * *

Sec. 383.93 [Adopted as final and Amended]

0
3. Adopt as final the revision to Sec. 383.93(b)(4) in the interim
rule published May 5, 2003 (68 FR 23844) and revise paragraph (b)(4) by
removing ``, or'' and adding ``; or'' in its place.

0
4. In Sec. 383.141:
0
a. Revise paragraph (b);
0
b. Adopt as final without change paragraph (d) of the interim rule
published May 5, 2003 (68 FR 23844); and
0
c. Adopt as final without change paragraph (c) of the interim rule
published April 29, 2005 (70 FR 22268).
The revision reads as follows:

Sec. 383.141 General.

* * * * *
(b) Prohibition. A state may not issue, renew, upgrade, or transfer
a hazardous material endorsement for a CDL to any individual
authorizing that individual to operate a commercial motor vehicle
transporting a hazardous material in commerce unless--
(1) The Transportation Security Administration has determined that
the individual does not pose a security risk warranting denial of the
endorsement; or

[[Page 52035]]

(2) The individual holds a valid TWIC.
* * * * *

PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

0
5. The authority citation for part 383 continues to read as follows:

Authority: 6 U.S.C. 1206, 49 U.S.C. 31136, 31301 et seq., and
31502; secs. 103 and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767;
sec. 32934 of Pub. L. 112-141, 126 Stat. 405, 830; sec. 5401 and
7208 of Pub. L. 114-94, 129 Stat. 1312, 1546, 1593; and 49 CFR 1.87.

Sec. 384.233 [Adopted as final]

0
6. Adopt as final without change Sec. 384.233 of the interim rule
published May 5, 2003 (68 FR 23844).

Issued under authority delegated in 49 CFR 1.87.

Dated: September 18, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-20584 Filed 9-30-19; 8:45 am]
BILLING CODE 4910-EX-P