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17969
Federal Register
/Vol. 69, No. 66/Tuesday, April 6, 2004/Rules and Regulations
1
68 FR 23852, May 5, 2003.
2
68 FR 63033, November 7, 2003.
3
Pub. L. 108
–
90, October 1, 2003, 117 Stat. 1137,Section 520.
4
Pub. L. 107
–
56, October 25, 2001, 115 Stat. 272.
§
543.5Petition: General requirements.
(a) For each model year throughmodel year 1996, a manufacturer maypetition NHTSA to grant exemptions forup to two additional lines of itspassenger motor vehicles from therequirements of part 541 of this chapter.For each model year after model year1996, a manufacturer may petitionNHTSA to grant an exemption for oneadditional line of its passenger motorvehicles from the requirements of part541 of this chapter.* * * * *
Issued on March 29, 2004.
Jeffrey W. Runge,
Administrator.
[FR Doc. 04
–
7492 Filed 4
–
5
–
04; 8:45 am]
BILLING CODE 4910
–
59
–
P
DEPARTMENT OF HOMELANDSECURITYTransportation Security Administration49 CFR Part 1572
[Docket No. TSA
–
2003
–
14610; AmendmentNo. 1572
–
3]RIN 1652
–
AA17
Security Threat Assessment forIndividuals Applying for a HazardousMaterials Endorsement for aCommercial Drivers License; FinalRule
AGENCY
:
Transportation SecurityAdministration (TSA), Department of Homeland Security (DHS).
ACTION
:
Final rule.
SUMMARY
:
The Transportation SecurityAdministration (TSA) is issuing thisfinal rule, which amends its InterimFinal Rule (IFR) establishing securitythreat assessment standards forcommercial drivers authorized totransport hazardous materials. TSA ischanging the date on which fingerprint- based background checks must begin inall States to January 31, 2005. TSA ismaking this change so that the Stateswill have enough time to make changesto their existing commercial driversafety and testing programs to facilitateimplementation.
DATES
:
Effective April 6, 2004.
FOR FURTHER INFORMATION CONTACT
:
Fortechnical questions: John Berry,Credentialing Program Office,Transportation Security AdministrationHeadquarters, East Building, Floor 8,601 12th Street, telephone: (571) 227
–
 1757, e-mail:
 John.Berry1@dhs.gov.
Steve Sprague, Maritime and Land,Transportation Security AdministrationHeadquarters, West Building, Floor 9,701 12th Street, Arlington, VA,telephone: (571) 227
–
1468, e-mail
Steve.Sprague@dhs.gov.
For legal questions: Christine Beyer,Office of Chief Counsel, TransportationSecurity Administration Headquarters,West Building, Floor 8, TSA
–
2, 601South 12th Street, Arlington, VA 22202
–
 4220; telephone: (571) 227
–
2657; e-mail:
Christine.Beyer@dhs.gov.
SUPPLEMENTARY INFORMATION
:
Comments:
TSA is not requestingcomments to this final rule.
Availability of Rulemaking Document
You can get an electronic copy of thisfinal rule using the Internet by:(1) Searching the Department of Transportation
’
s electronic DocketManagement System (DMS) web page(
http://dms.dot.gov/search
);(2) Accessing the GovernmentPrinting Office
’
s web page at
http:// www.access.gpo.gov/su
 _
docs/aces/ aces140.html 
; or(3) Visiting TSA
’
s Laws andRegulations web page at
http:// www.tsa.gov/laws
 _
regs/gov 
 _
index.shtm.
In addition, copies are available bywriting or calling the individuals in the
FOR FURTHER INFORMATION CONTACT
 
section. Please be sure to identify thedocket number when making requests.
Small Entity Inquiries
The Small Business RegulatoryEnforcement Fairness Act (SBREFA) of 1996 requires TSA to comply with smallentity requests for information or adviceabout compliance with statutes andregulations within TSA
’
s jurisdiction.Any small entity that has a questionregarding this document may contactthe persons listed in the
FOR FURTHER
 
INFORMATION CONTACT
section forinformation or advice. You can getfurther information regarding SBREFAon the Small Business Administration
’
sWeb page at
http://www.sba.gov/advo/ laws/law 
 _
lib.html.
Background
On May 5, 2003, TSA published aninterim final rule (IFR) that requires asecurity threat assessment of commercial drivers who are authorizedto transport hazardous materials.
1
TheIFR implements several statutorymandates, discussed below, including acheck of relevant criminal andinternational databases, and appeal andwaiver procedures. In the IFR, TSA alsostated that it would provide guidance onhow fingerprints would be collected andadjudicated.TSA requested and receivedcomments from the States, labororganizations, and trucking industryassociations. In addition, TSA heldworking group sessions with the Statesto discuss potential fingerprintingsystems that would achieve thestatutory requirements, but would notadversely impact the States.Based on the comments received andthe working sessions with the States, onNovember 7, 2003, TSA amended theIFR to delay the date on whichfingerprint collection would begin.
2
Theamended IFR provided that the Statesmust begin to collect fingerprints andthe accompanying identificationinformation as of April 1, 2004. AnyState unable to meet this deadline wasrequired to submit a fingerprintcollection plan to TSA and request anextension of time (waiver) to submit the biographical information. The amendedIFR required all States to be incompliance with the rule by December1, 2004.As a result of comments andcorrespondence received sinceNovember 2003, TSA has determined toeliminate the April 1, 2004 deadline. Atpresent, more than thirty-five Stateshave requested an extension of time toestablish a fingerprint collectionprogram. In addition, several States, intheir requests for an extension of time,expressed concern over their ability tomeet the December 1, 2004 deadline forall States to be in compliance with therule. For this reason, discussed ingreater detail below, fingerprinting will begin no later than January 31, 2005.Under legislation passed in late2003,
3
DHS must charge a fee for thecost of any credential and backgroundcheck provided through the Departmentfor workers in the field of transportation. DHS, through TSA, is inthe process of preparing rulemakingdocuments to establish reasonable feesfor this and other similar credentialingprograms. With the proposed deadlineextension, TSA will work to coordinatethe timing of fee assessments with thefingerprint-based portion of the background records check.
USA PATRIOT Act
The Uniting and StrengtheningAmerica by Providing AppropriateTools Required to Intercept andObstruct Terrorism (USA PATRIOT) Actwas enacted on October 25, 2001.
4
 Section 1012 of the USA PATRIOT Actamended 49 U.S.C. Chapter 51 by
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17970
Federal Register
/Vol. 69, No. 66/Tuesday, April 6, 2004/Rules and Regulations
5
The Secretary of Transportation delegated theauthority to carry out the provisions of this sectionto the Under Secretary of Transportation forSecurity/Administrator of TSA. 68 FR 10988, March7, 2003.
6
Pub. L. 107
–
296, November 25, 2002, 116 Stat.2280.
7
The penalty for violation of 18 U.S.C. 842(i) isup to ten years imprisonment and a fine of up to$250,000.
adding a new section 5103a titled
‘‘
Limitation on issuance of hazmatlicenses.
’’
Section 5103a(a)(1) provides:
A State may not issue to any individual alicense to operate a motor vehicletransporting in commerce a hazardousmaterial unless the Secretary of Transportation has first determined, uponreceipt of a notification under subsection(c)(1)(B), that the individual does not pose asecurity risk warranting denial of thelicense.
5
 
Section 5103a(a)(2) subjects licenserenewals to the same requirements.Section 5103a(c) requires the AttorneyGeneral, upon the request of a State inconnection with issuance of a hazardousmaterials endorsement (HME), to carryout a background records check of theindividual applying for the endorsementand, upon completing the check, tonotify the Secretary (as delegated to theAdministrator of TSA) of the results.The Secretary then determines whetherthe individual poses a security riskwarranting denial of the endorsement.The background records check mustconsist of: (1) a check of the relevantcriminal history databases; (2) in thecase of an alien, a check of the relevantdatabases to determine the status of thealien under U.S. immigration laws; and(3) as appropriate, a check of therelevant international databases throughInterpol-U.S. National Central Bureau orother appropriate means.
Safe Explosives Act
Congress enacted the Safe ExplosivesAct (SEA) on November 25, 2002.
6
 Sections 1121
–
1123 of the SEAamended section 842(i) of Title 18 of theU.S. Code by adding several categoriesto the list of persons who may notlawfully
‘‘
ship or transport anyexplosive in or affecting interstate orforeign commerce
’’
or
‘‘
receive orpossess any explosive which has beenshipped or transported in or affectinginterstate or foreign commerce.
’’
Prior tothe amendment, 18 U.S.C. 842(i)prohibited, among other things, thetransportation of explosives by anyperson under indictment for orconvicted of a felony, a fugitive fromjustice, an unlawful user or addict of any controlled substance, and anyperson who had been adjudicated as amental defective or committed to amental institution. The amendmentadded three new categories to the list of prohibited persons: aliens (with certainlimited exceptions), personsdishonorably discharged from the armedforces, and former U.S. citizens whohave renounced their citizenship.Individuals who violate 18 U.S.C. 842(i)are subject to criminal prosecution.
7
 These incidents are investigated by theBureau of Alcohol, Tobacco, Firearms,and Explosives (ATF) of the Departmentof Justice and referred, as appropriate, toUnited States Attorneys.However, 18 U.S.C. 845(a)(1) providesan exception to section 842(i) for
‘‘
anyaspect of the transportation of explosivematerials via railroad, water, highway,or air which are regulated by the UnitedStates Department of Transportation(DOT) and agencies thereof, and whichpertain to safety.
’’
Under this exception,if DOT regulations address thetransportation security issues of personsengaged in a particular aspect of the safetransportation of explosive materials,then those persons are not subject toprosecution under 18 U.S.C. 842(i)while they are engaged in thetransportation of explosives incommerce. TSA issued the interim finalrule in coordination with agencieswithin DOT, the Federal Motor CarrierSafety Administration and Research andSpecial Programs Administration, andtriggered this exception. The action TSAtakes now to move the date on whichfingerprinting must begin does not affectthe application of the exception.
The Interim Final Rule
To comply with the mandates of theUSA PATRIOT Act, and to trigger theexception in 18 U.S.C. 845(a)(1) for thetransportation of explosives, TSA issuedthe May 2003 IFR. Under the IFR, TSAdetermines that an individual poses asecurity threat if he or she: (1) is analien (subject to certain exceptions) or aU.S. citizen who has renounced his orher U.S. citizenship; (2) is wanted orunder indictment for certain felonies;(3) has a conviction in military orcivilian court for certain felonies; (4) has been adjudicated as a mental defectiveor involuntarily committed to a mentalinstitution; or (5) is considered to posea security threat based on a review of pertinent databases.The IFR also establishes conditionsunder which individuals who have beendetermined to be security threats canappeal the determination, and a waiverprocess for those individuals whootherwise could not obtain an HME because they have disqualifyingfelonies, or were adjudicated as mentaldefectives or involuntarily committed toa mental institution. Finally, the IFRprohibits an individual from holding,and a State from issuing, renewing, ortransferring, an HME for a driver unlessthe individual has met the TSA securitythreat assessment standards.Based on the comments receivedfollowing publication of the IFR and theworking sessions with the States, TSAamended the IFR on November 7, 2003,to delay the date on which fingerprintcollection would begin. The amendedIFR provided that the States must begincollecting fingerprints and theaccompanying identificationinformation as of April 1, 2004. AnyState unable to meet this deadline wasrequired to submit a fingerprintcollection plan to TSA and request anextension of time to submit the biographical information. Under theamended IFR, all States were required to be in compliance with the rule byDecember 1, 2004.
Summary of the Final Rule
TSA believes that the fingerprintcollection date should be delayed sothat TSA and each State may develop athreat assessment program within theexisting fiscal, procurement, and legalconstraints each entity faces. By issuingthe rule now, TSA hopes to preventunnecessary expenditures the Statesmay make in the short term and toprovide the States the time needed todevelop the program in an organizedfashion. This final rule provides thatfingerprint collection must begin nolater than January 31, 2005. However,TSA will work with States to beginfingerprint collection and submission before that date using pilot programs.Many States must initiate rulemakingor enact new legislation to authorize thecollection of fees to cover any Statecosts associated with the new program.Some State legislatures meet biannuallyand many meet for just a few months of the year. Also, many States operateunder fiscal and procurement schedulesthat do not permit the purchase of necessary equipment and softwareimprovements before April 1, 2004.At the Federal level, TSA willcomplete the rulemaking proceeding toestablish a fee for the security threatassessment.Prior to January 31, 2005, TSA willconduct name-based, terrorist-focusedchecks on drivers who are currentlyauthorized to transport hazardousmaterials. If TSA discovers during thecourse of these name-based checks thatan individual is suspected of posing orposes a security threat, TSA will initiateaction to revoke the individual
’
s HME,in accordance with the procedures in 49CFR 1572.141. The individual will be
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Federal Register
/Vol. 69, No. 66/Tuesday, April 6, 2004/Rules and Regulations
provided with an opportunity to correctunderlying records or cases of mistakenidentity by submitting fingerprints orcorrected court records.With an estimated population of 3.5million drivers, the government willprioritize the background check process by searching terrorist-related databasesfirst. TSA believes that this name-basedcheck of all drivers who are currentlyauthorized to transport hazmat willenable the agency to focus onindividuals who may pose a moreimmediate threat of terrorist or otherdangerous activity. Following thatcheck, TSA will then search criminaldatabases that include outstandingcriminal wants and warrants, andimmigration records to determinecitizenship status.TSA has assessed the risks associatedwith the transportation of hazardousmaterials via commercial vehicle andhas determined that in conductingname-based checks prior to January2005, and initiating fingerprint-basedcriminal history checks as of January 31,2005, the risks are effectively addressed.The terrorist-related information thatTSA will search prior to January 2005,is the best indication of an individual
’
spredisposition to commit or conspire tocommit terrorist acts. TSA hasdetermined that the more imminentthreat is an individual whose background includes terrorism-relatedactivity. This approach is consistentwith the USA PATRIOT Act and meetsthe needs of the States.Also, it is important to note that TSAis not delaying the September 2, 2003,compliance date set forth in
§
1572.5(b)for surrendering an HME. This sectionrequires any HME holder who does notmeet the security threat assessmentstandards in part 1572 to surrender theendorsement beginning on September 2,2003. For instance, an individual whoknows that he or she has committed adisqualifying offense within theprescribed time periods is required torelinquish his or her HME beginningSeptember 2, 2003. Nothing in this finalrule alters this surrender requirement.In the context of this rulemaking, thesurrender requirement buttresses TSA
’
sdetermination that we should attempt toidentify potential terrorist threats fromterrorism-related information databases before analyzing criminal historyrecords. As of September 2, 2003, allHME drivers are required to self-reportany disqualifying offenses that wouldappear on a fingerprint-based criminalhistory records check. TSA will workclosely with the State Departments of Motor Vehicles, labor organizations, andthe trucking industry to communicatethis surrender provision widely and toinform affected drivers of the existingwaiver process.Based on the foregoing, the exceptionfound in 18 U.S.C. 845(a)(1) continuesto apply, and persons otherwiseprohibited from lawfully possessingexplosives who are transportingexplosives in commerce would not besubject to criminal prosecution undersection 842(i).This final rule amends the November2003 IFR by changing the fingerprintstart date and the date on which theStates may issue, renew, or transferHMEs only after the threat assessment iscomplete. In view of the fact that manyof the States cannot begin collectingfingerprints or gathering pertinentidentification data from drivers by April1, 2004, and that TSA will not haveregulatory authority to charge fees tocover the costs of the security threatassessments before late 2004 when thefee collection rulemaking is complete,TSA is changing the date that all Statesmust begin collecting fingerprints andgathering identification data fromhazmat drivers to January 31, 2005. Thischange accommodates the fiscal andlegal tasks that must be completed first.TSA will complete a rulemakingproceeding to collect fees to cover thecost of each security threat assessment.In the near future, TSA will issue a rulethat establishes reasonable fees (FeeRule) to cover the cost of the hazmatdriver security threat assessment.
Section-by-Section Analysis
TSA is adding a definition of 
‘‘
PilotState
’’
to
§
1572.3. A
‘‘
Pilot State
’’
is aState that volunteers to begin thesecurity threat assessment process priorto January 31, 2005. TSA also is makingchanges to
§
1572.5 concerning the dateon which TSA
’
s threat assessment basedon fingerprint-based criminal historyrecord checks must be underway. Thenew dates in paragraph 1572.5(c)(2),and the deletion of the dates inparagraph 1572.5(b)(2), reflect TSA
’
sdecision to delay the date on which thecollection of fingerprints andaccompanying biographical data must begin from April 1, 2004, to January 31,2005.TSA is revising paragraph (c)(3) withrequirements for States that volunteer to be Pilot States. Pilot States will berequired to collect the identifyinginformation required in 49 CFR1572.5(e) and collect and submitfingerprints in accordance withprocedures approved by TSA. TSA willwork with Pilot States on procedures forthe collection and submission of fingerprints.TSA is removing the requirement inparagraph 1572.5(c)(4) that States mustsubmit fingerprints and information, orrequest an extension as of April 1, 2004.The requirement that is now inparagraph 1572.5(c)(4) was in paragraph1572.5(c)(3)(i) in the original IFR. Thisparagraph permits the States, in the first6 months of implementation of the rule,to extend the expiration date of anindividual
’
s HME until the Statereceives from TSA a final notification of the individual
’
s threat assessment. Thisprovision is necessary because in thefirst 180 days of the program,individuals may not have been givensufficient notice of the TSA threatassessment requirements. AllowingStates to extend the expiration date of such an individual
’
s HME will provideTSA with enough time to conduct asecurity threat assessment withoutunduly delaying the individual
’
s receiptof a renewed or transferred HME.
Future Rulemaking 
TSA plans to publish a document todiscuss all comments received in thisproceeding and to improve the clarityand organization of the rule text. Thisshould be done in conjunction with theaforementioned rulemaking to establishfees. In addition, TSA may makechanges to the existing standards, suchas the disqualifying criminal offensesand immigration status and providemore information. TSA will rely heavilyon comments that the States andindustry have provided and willprovide to ensure that no State is forcedto adhere to a rigid form of programimplementation.
Rulemaking Analyses and Notices
 Justification for Immediate Adoption
TSA is issuing this final rule inresponse to comments receivedfollowing publication of the May 5,2003 IFR and subsequent amendmentissued on November 3, 2003. TSA hasreceived requests for an extension of time from many States that are not ableto establish a fingerprint collectionprogram by April 1, 2004. Many of theseStates do not wish to file an extensionof time and submit a fingerprintcollection program, because the fees andfingerprint collection system have notyet been determined and it is difficultto predict how fingerprints will becollected and what portion of the cost,if any, the States must bear.Eliminating the April 1, 2004deadline will provide the States moretime to devote to developing a cost-effective program through appropriatefiscal and operational planning.
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