Federal Motor Carrier Safety Regulations: Hazardous Materials Safety Permits, Final Rule

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responsibilities between the Federal
Government and Indian tribes, as
specified in Executive Order 13175.
Thus, Executive Order 13175 does not
apply to this rule.
X. Congressional Review Act

Federal Motor Carrier Safety
Administration
49 CFR Parts 385, 386, and 390
[Docket No. FMCSA–97–2180]

The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, generally provides
that before a rule may take effect, the
agency promulgating the rule must
submit a rule report, which includes a
copy of the rule, to each House of the
Congress and to the Comptroller General
of the United States. EPA will submit a
report containing this rule and other
required information to the U.S. Senate,
the U.S. House of Representatives, and
the Comptroller General of the United
States prior to publication of this final
rule in the Federal Register. This final
rule is not a ‘‘major rule’’ as defined by
5 U.S.C. 804(2).
List of Subjects in 40 CFR Part 180
Environmental protection,
Administrative practice and procedure,
Agricultural commodities, Pesticides
and pests, Reporting and recordkeeping
requirements.
Dated: June 21, 2004.
James Jones,
Director, Office of Pesticide Programs.

Therefore, 40 CFR chapter I is
amended as follows:

■

PART 180—[AMENDED]
1. The authority citation for part 180
continues to read as follows:

■

Authority: 21 U.S.C. 321(q), 346a and 371.

2. Section 180.1254 is added to subpart
D to read as follows:

■

§ 180.1254 Aspergillus flavus NRRL 21882
on peanut; exemption from requirement of
a tolerance.

An exemption from the requirement
of a tolerance is established for residues
of Aspergillus flavus NRRL 21882 on
peanut and its food/feed commodities.
[FR Doc. 04–14609 Filed 6–29–04; 8:45 am]
BILLING CODE 6560–50–S

DEPARTMENT OF TRANSPORTATION

RIN 2126–AA07

Federal Motor Carrier Safety
Regulations: Hazardous Materials
Safety Permits
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Final rule.
AGENCY:

SUMMARY: The Federal Motor Carrier
Safety Administration is establishing a
national safety permit program for
motor carriers that transport certain
hazardous materials in interstate or
intrastate commerce. This final rule
implements provisions of Federal
hazardous materials transportation law.
The rule will promote safe and secure
transportation of the designated
hazardous materials and thereby
improve motor carrier safety.
DATES: Effective: This rule is effective:
July 30, 2004. Compliance: Compliance
with this rule is required beginning
January 1, 2005. The publication
incorporated by reference in this final
rule is approved by the Director of the
Federal Register as of July 30, 2004.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael Johnsen, (202) 366–4111,
Hazardous Materials Division, Federal
Motor Carrier Safety Administration,
U.S. Department of Transportation, 400
7th Street, SW., Washington, DC 20590–
0001. Office hours are from 7:45 a.m. to
4:15 p.m., EST, Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:

List of Topics
I. Background
II. Summary of Final Rule
III. Analysis of Comments
A. General Comments
B. Preemption of State Programs
C. Qualification Based on State Permits
D. List of Materials (Applicability)
E. Duplication of Other Agency Programs
F. Obtaining a Safety Rating
G. Pre-Trip Inspections
H. Route Plans
I. Communications Plans
J. Permit Documentation
K. Enforcement
L. Cost-Benefit Analysis
IV. Rulemaking Analyses and Notices

I. Background
Federal hazardous materials
transportation law, 49 U.S.C. 5101 et
seq., was enacted ‘‘to provide adequate
protection against the risks to life and

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property inherent in the transportation
of hazardous material in commerce.’’
The Federal Motor Carrier Safety
Administration (FMCSA), formerly part
of the Federal Highway Administration
(FHWA), is responsible for
implementing certain provisions of this
law, including Sec. 5105(e), Inspections
of motor vehicles transporting certain
material; Sec. 5109, Motor carrier safety
permits; and Sec. 5119, Uniform forms
and procedures.
Section 5109 requires the U.S.
Department of Transportation (DOT) to
issue regulations for safety permits for
transporting certain hazardous
materials. A motor carrier must hold a
safety permit issued by DOT and keep
a copy of the permit or other proof of
its existence in the vehicle, in order to
transport certain hazardous materials in
commerce or cause such materials to be
transported in commerce by motor
vehicle (49 U.S.C. 5109(a)).
FHWA published three notices in the
1990s to enact a permitting rule.
FHWA’s notice of proposed rulemaking
(NPRM) of June 17, 1993 (58 FR 33418)
was followed by notices in 1996 (61 FR
36016, Jul. 9, 1996) and 1998 (63 FR
15362, Mar. 31, 1998) addressing the
role of States in implementing a unified
permitting program State by State.
FHWA’s June 1993 NPRM formed the
basis of a supplemental notice of
proposed rulemaking (SNPRM)
published by FMCSA on August 19,
2003 (68 FR 49737), with a correction
notice published September 11, 2003
(68 FR 53535). The proposals in the
SNPRM were based on statutory
requirements and on public comments
to the previous Federal Register notices.
For a complete discussion of the prior
proceedings, including the notices
published by FMCSA and FHWA,
please see the background discussion in
the SNPRM.
The major proposals in the SNPRM
are described below.
Hazardous Materials for Which a Safety
Permit Would Be Required
FMCSA proposed that a motor carrier
would be required to hold a safety
permit in order to transport in
commerce any of the four hazardous
materials specified in 49 U.S.C. 5109(b),
in the same threshold quantities for
which the carrier must submit a
registration statement and pay a
registration fee under 49 U.S.C.
5108(a)(1)(A)–(D). The cost-benefit
analysis for the rulemaking considered
two other options: (a) an expanded list
of materials that are sometimes subject
to additional regulations, such as
infectious substances and Hazard Zone
B toxics, and (b) all materials subject to

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the Research and Special Programs
Administration (RSPA) security
requirements.
Intrastate and Foreign Motor Carriers
In the proposed rule, an intrastate
carrier would be required to apply for a
USDOT number and undergo a
compliance review. The safety rating
issued by FMCSA to an intrastate carrier
would be used only for purposes of
issuing a safety permit. Likewise, an
intrastate carrier would not be required
to comply with any Federal Motor
Carrier Safety Regulations (FMCSRs) (49
CFR parts 390–399) to which it is not
already subject.
The definition of ‘‘interstate
commerce’’ includes foreign commerce.
Therefore, Canada- and Mexicodomiciled motor carriers transporting
hazardous materials (HM) required to be
permitted in the United States would be
subject to the requirements proposed in
the SNPRM.
Application Procedures
FMCSA proposed to create a new
form (Form MCS–150B) for a motor
carrier to provide the limited additional
information required for issuance of a
safety permit. FMCSA proposed to
phase in the safety permit program
beginning January 1, 2005. The actual
compliance date would depend on
when the carrier is required to complete
the MCS–150 under § 390.19(a). FMCSA
did not propose to charge a fee for
applying for a safety permit, but stated
that it may consider the need to assess
an application fee in the future,
especially if the safety permit program
is expanded to apply to motor carriers
of additional types and quantities of
hazardous materials.
Conditions for Issuing a Safety Permit
FMCSA proposed in the SNPRM to
require that a motor carrier have a
‘‘Satisfactory’’ safety rating in order to
obtain a safety permit. Appendix B to 49
CFR part 385 contains an explanation of
the safety rating process including a list
of violations that FMCSA considers
‘‘acute’’ (where noncompliance is so
severe as to require immediate
compliance) and ‘‘critical’’ (where
noncompliance relates to management
and/or operational controls). The
SNPRM also proposed additions to the
list of acute and critical violations in 49
CFR part 385, appendix B, paragraph
VII.
FMCSA proposed two further
conditions for issuing a safety permit:
(1) the motor carrier must show that it
has a satisfactory security program, and
(2) the motor carrier must be (and
remain) registered with RSPA. A

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satisfactory security program would
apply to motor carriers transporting in
commerce hazardous materials listed in
the SNPRM.
Finally, FMCSA also proposed issuing
a temporary safety permit, valid for up
to 270 days, to a motor carrier that does
not have a safety rating but certifies it
has a satisfactory security program and
is operating in full compliance with the
Hazardous Materials Regulations
(HMRs; 49 CFR parts 171–180); the
FMCSRs; comparable State regulations,
if applicable; and minimum financial
responsibility requirements in 49 CFR
part 387 or in State regulations, as
applicable. However, FMCSA would not
issue a temporary safety permit to a
motor carrier that, as indicated in the
Motor Carrier Management Information
System (MCMIS), has a crash rate in the
top 30 percent of the national average;
has a driver, vehicle, hazardous
materials, or total out-of-service rate in
the top 30 percent of the national
average; or is listed on FMCSA’s
SafeStat A, B, C, or D lists.
Permit Number and Evidence in the
Vehicle
FMCSA proposed that the carrier be
required to maintain in the vehicle
transporting a hazardous material a
copy of the safety permit or another
document (including a shipping paper)
showing the permit number. The
carrier’s safety permit number would
not be required to appear on the
shipping paper.
Written Route Plan and Communication
In the SNPRM, we proposed to revise
49 CFR 397.67(d) to require the carrier,
or its agent, to prepare and provide its
driver with a written route plan
covering any shipment of a toxic-byinhalation (TIH) material or liquefied
natural gas for which a safety permit is
required, in addition to all shipments of
Division 1.1, 1.2, and 1.3 materials.
FMCSA proposed (in § 385.415) that the
written route plan be carried in the
vehicle and followed, unless an
alternate route is required by a law
enforcement officer or emergency
conditions. A phone number would
need to be provided where a company
official or representative could provide
route plan and other information about
the shipment to the caller. This phone
number would have to be maintained
during the course of transportation of
permitted loads.
In addition, FMCSA proposed a
communications plan requiring the
driver to communicate with the carrier
at least once every two hours and any
time there is a deviation from the
written route plan. The motor carrier

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would be required to contact law
enforcement officials if there had been
no communication from its driver for
more than three hours.
Finally, FMCSA proposed to require
the motor carrier to maintain a record of
all communications with the vehicle
driver during transportation of a
hazardous material for which a safety
permit is required. The record would be
required to contain the name of the
driver, identification of the vehicle, the
hazardous material(s) being transported,
the date and time of each
communication, and each period of
more than two hours without a
communication with the driver,
including a statement of the facts or
conditions that prevented
communication for more than two
hours.
Pre-Trip Inspections
To implement the pre-trip inspection
requirement in 49 U.S.C. 5105(e),
FMCSA proposed inspection standards
similar to those contained in the North
American Standard (NAS) Level VI
Inspection developed by the
Commercial Vehicle Safety Alliance
(CVSA) for radioactive shipments. The
pre-trip inspection would have to be
performed by a government inspector—
that is, an inspector employed by or
under contract to a Federal, State or
local government. The inspection would
be required to cover all applicable
requirements in the HMRs and in the
FMCSRs—including 49 CFR parts 383
(commercial driver’s license), 391
(driver qualifications), 395 (hours of
service), 393 and 396 (vehicle
condition)—or compatible State
regulations. The inspection also would
be required to cover provisions in the
HMRs on the transportation of
radioactive materials (49 CFR parts 171,
172, 173, and 178) and registration (49
CFR part 107, subpart G).
Denial, Suspension, or Revocation of a
Safety Permit
FMCSA proposed that a safety permit
would be subject to suspension or
revocation if a carrier fails to maintain
its ‘‘Satisfactory’’ safety rating, or under
other specified circumstances. These
include: (1) Failure to submit a renewal
application or providing any false or
misleading information on a required
application form; (2) failure to maintain
a satisfactory security plan; (3) failure to
comply with an out-of-service order; (4)
failure to comply with the FMCSRs,
HMRs, compatible State requirements,
or an order issued under any of these,
in a manner that shows the carrier is not
fit to transport the hazardous materials
for which a safety permit is required; (5)

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loss of the carrier’s operating rights; and
(6) suspension of the carrier’s
registration for failure to pay a civil
penalty or to abide by a payment plan.
The SNPRM proposed procedures for
administrative review of a denial,
suspension, or revocation of a safety
permit. A motor carrier’s rights to
administrative review would depend on
the reason for denial, suspension, or
revocation.
II. Summary of Final Rule
This final rule amends the FMCSRs to
incorporate the following new
provisions for a safety permit program:
Hazardous Materials for Which a Safety
Permit Would Be Required
The final rule adopts a slightly
revised list comprised of hazardous
materials requiring a safety permit. The
new list compiles the statutory list and
additional explosive and toxic-byinhalation (TIH) materials in certain
quantities as appropriate. Specifically, a
permit will be required for:
1. Radioactive Materials—A highway
route-controlled quantity of Class 7
materials.
2. Explosives—More than 25 kg (55
pounds) of a Division 1.1, 1.2 or 1.3
material, or an amount of a Division 1.5
material requiring a placard under 49
CFR part 172, subpart F.
3. Toxic-by-Inhalation (Division 2.3
and 6.1) Materials—Hazard Zone A
materials in a packaging with a capacity
greater than 1 liter (0.26 gallons); a
shipment of Hazard Zone B materials in
a bulk packaging (capacity greater than
450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk
packaging having a capacity equal to or
greater than 13,248 L (3,500) gallons.
4. A shipment of compressed or
refrigerated liquid methane or natural
gas or other liquefied gas with a
methane content of at least 85 percent,
in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500
gallons) for liquids or gases.
Intrastate and Foreign Motor Carriers
The safety permit program will apply
to intrastate as well as interstate
carriers. In addition, the program will
apply to foreign carriers. Intrastate
carriers must apply for a USDOT
number and will be subject to a
compliance review. The safety rating
issued to the intrastate carrier is for the
safety permit process only and, unless
specifically noted, will be calculated
based on State violations equivalent to
FMCSA’s list of critical and acute
violations. Beyond the requirements to
obtain a USDOT number and submit to
a compliance review, the intrastate

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carrier seeking a safety permit will
generally not be subject to any
additional safety regulations under the
FMCSRs (such as driver qualification
requirements in 49 CFR part 391) that
did not apply to such carriers before this
final rule. Several sections of the
regulations are being modified to
include intrastate motor carriers subject
to the permitting requirements. This
revised text includes § 385.3
(definitions), § 385.5, and Appendix B
to Part 385.
Application Procedures
The safety permit program will
require hazmat carriers to complete
Form MCS–150B in lieu of Form MCS–
150. In addition, permitted carriers must
complete the MCS–150B in lieu of the
MCS–150 to renew both their permit
and their USDOT number, according to
the USDOT number renewal schedule.
Implementation of the safety permit
program will be phased in beginning
January 1, 2005. The actual compliance
date will depend on the schedule in
§ 390.19. A motor carrier not involved
in the transportation of a permitted
material on January 1, 2005, will need
to apply for and receive a safety permit
before it can transport any permitted
material. FMCSA will not charge a fee
for applying for a safety permit under
this final rule.
Conditions for Issuing a Safety Permit
(Security Program)
Motor carriers must have a
‘‘Satisfactory’’ safety rating in order to
obtain a safety permit. In addition, until
we complete a compliance review,
FMCSA will not issue a safety permit to
a motor carrier that has, as indicated in
the agency’s Motor Carrier Management
Information System (MCMIS), a crash
rate in the top 30 percent of the national
average, or a driver, vehicle, hazardous
materials, or total out-of-service rate in
the top 30 percent of the national
average. A motor carrier must have a
satisfactory security program in place
and must be registered with RSPA. A
satisfactory security program consists of:
(1) A security plan as prescribed in 49
CFR part 172, subpart I; (2) a means of
communication that will enable the
vehicle operator to contact the motor
carrier during the course of
transportation; and (3) a means of
providing hazardous materials
employees with security training as
required in 49 CFR part 172.
FMCSA will adopt the proposed
changes to the list of acute and critical
violations in 49 CFR part 385, appendix
B, paragraph VII, with some corrections.
Temporary safety permits will be
issued to motor carriers without safety

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ratings, but only for a period of 180
days. In addition, a temporary safety
permit will only be issued to companies
that certify they have a satisfactory
security program and are operating in
full compliance with the HMRs,
FMCSRs, or comparable State
regulations. FMCSA will not issue a
temporary safety permit to a motor
carrier that has, as indicated in MCMIS,
a crash rate in the top 30 percent of the
national average, or a driver, vehicle,
hazardous materials, or total out-ofservice rate in the top 30 percent of the
national average.
Permit Number and Evidence in the
Vehicle
We are requiring that the carrier’s
safety permit number appear on the
shipping paper, on a copy of the safety
permit, or on other documents
maintained in the vehicle transporting a
hazardous material requiring a safety
permit.
Written Route Plan and Communication
We are maintaining the written route
plan required for radioactive materials
set forth in 49 CFR 397.101, and for
explosives in § 397.19 of the same title.
Written route plans will not be
expanded to include the other materials
that require safety permits. However, we
are requiring that while a permitted
material is in transportation, the driver
must have the telephone number of an
employee or representative of the motor
carrier who is able to determine whether
the vehicle is on the general route for
delivery of the material as expected by
the company. The phone number must
be made available to law enforcement
officials upon request.
We are requiring companies holding
safety permits to develop a
communications plan that allows for the
periodic tracking of the shipment. This
may be accomplished either through
phone calls or radio calls placed by the
driver or through an electronic
monitoring or tracking system. At a
minimum, the communication plan
must require contact from the driver or
electronic tracking equipment at the
beginning and end of transportation
(during loading or unloading of a
permitted material) or at the beginning
and end of each duty period. If the
driver is making the calls, he or she
should make them during periodic rests
(taken for reasons other than making the
call), or at the beginning and end of
each duty period while not operating
the vehicle or obtaining necessary rest.
If the company has any reason to
suspect the shipment has been stolen,
diverted, or otherwise off-route because
of a lack or delay of contact from the

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driver, or for other reasons, then the
company should contact the
Transportation Security
Administration’s (TSA) Transportation
Security Coordination Center at (703)
563–3236 or (703) 563–3237.
We are also requiring that a record of
communications be kept, by either the
driver (for example, recorded in the
logbook) or the company, containing the
time of the call and the shipment
location. These records must be kept,
either physically or electronically, for at
least six months at the company’s
principal place of business and must be
readily available to employees.
Pre-Trip Inspections
We are adopting the proposal
requiring that shipments containing
highway route-controlled Class 7
(radioactive) materials undergo a pretrip inspection. The standards for this
inspection are contained in the North
American Standard (NAS) Level VI
Inspection for Radioactive Shipments.
The pre-trip inspection must be
performed by a Federal, State, or local
government inspector, or an inspector
under contract with a Federal, State, or
local government. The inspector must
have completed an appropriate training
program of at least 104 hours, including
at least 24 hours of training in
conducting radiological surveys on
inspecting vehicles transporting
highway route-controlled quantity
(HRCQ) radioactive materials. The
inspection must cover all applicable
requirements in the HMRs; the
FMCSRs—including 49 CFR parts 383
(commercial driver’s license), 391
(driver qualifications), 395 (hours of
service), 393 and 396 (vehicle
condition)—or compatible State
regulations; and provisions in the HMRs
on the transportation of radioactive
materials (49 CFR parts 171, 172, 173
and 178) and registration (49 CFR part
107, subpart G).
Denial, Suspension, or Revocation of a
Safety Permit
We are implementing a process to
deny, suspend, and revoke safety
permits in this final rule. A safety
permit will be denied if the carrier does
not have a ‘‘Satisfactory’’ safety rating,
or if any of the criteria for suspension
or revocation are discovered in the
application process. A safety permit will
be suspended or revoked when the
carrier: (1) Does not have a
‘‘Satisfactory’’ safety rating; (2) fails to
submit a renewal application or
provides false or misleading information
on a required application form; (3) fails
to maintain a satisfactory security plan;
(4) fails to comply with an out-of-service

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order; (5) fails to comply with the
FMCSRs, with the HMRs or compatible
State requirements, or with an order
issued under any of these regulations
showing the carrier is not fit to transport
the permitted hazardous materials; (6)
loses its operating rights; or (7) has its
registration suspended for failure to pay
a civil penalty or abide by a payment
plan. The decision to suspend or revoke
a permit will be based on the severity
of the violations.
The first time a motor carrier is found
to be in violation of any of these
requirements, the permit will be
suspended until the problems are
rectified. The next time a company is
found to be in violation of these
requirements, the permit will be
revoked for 365 days.
III. Analysis of Comments
In response to the SNPRM, FMCSA
received 27 written comments from
State governments, motor carriers,
associations, a public interest group,
and individuals. These comments have
been considered in the preparation of
this final rule, as discussed below. The
comments have been arranged by topic.
A. General Comments
Several commenters, including
American Chemistry Council (ACC), Air
Products and Chemicals, Inc. (Air
Products), American Trucking
Associations (ATA), American
Pyrotechnics Association (APA), and
Baker Petrolite Corporation (BPC),
praise the agency for the intended effect
of the SNPRM to promote the safe and
secure transportation of the designated
hazardous materials and thereby
enhance motor carrier safety. However,
none of the commenters believe the
proposal should be finalized without
further changes. Most of these
comments are focused on the additional
burden the proposed rules would place
on the industry. Air Products and
Department of California Highway
Patrol (CHP) argue that the safety permit
itself will not improve public safety. Air
Products states it is the implementing
requirements necessary to satisfy the
intent of the safety permit that are
important, and that these requirements
must be clearly defined, effective, and
workable for the motor carrier. The
Michigan Department of Environmental
Quality (Michigan DEQ) questions
whether the proposed safety permit rule
would have a significant impact on the
safe transportation of hazardous
materials.
FMCSA Response: We agree that the
supporting requirements, and the ability
to suspend, revoke, or deny a permit for
companies found negligent in their

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responsibilities to transport hazmat
safely and securely, provide the
foundation for an effective permit
program. We recognize the importance
of constructing a permit program that
minimizes complexity and maximizes
security and safety benefits. FMCSA
disagrees with the assertion that the
permit by itself will not improve safety.
The issuance of a permit is tied to a
company’s safety performance.
Companies with a record of excessive
safety concerns will not be issued a
permit.
The Michigan DEQ, the National
Small Shipments Traffic Conference
(NASSTRAC), the Institute of Makers of
Explosives (IME), APA, and CHP believe
that an additional permitting program
will only add to the burden on the
industry by duplicating the existing
permit efforts by the States without
providing any appreciable risk
reduction or security benefit. The
Conference on Safe Transportation of
Hazardous Articles (COSTHA) states
that the regulated community may find
it extremely difficult, if not impossible,
to meet the minimum requirements of
the proposed permit program necessary
for obtaining and holding a permit.
FMCSA Response: FMCSA believes
that we have been responsive to the
specific concerns raised by commenters,
and that, with the proposals adopted for
this final rule, the regulated community
will be able to meet the requirements to
obtain and hold safety permits. We have
analyzed commenters’ concerns and
adopted a balanced program that
maximizes benefits while attempting to
minimize burden on the regulated
industry.
Advocates for Highway and Auto
Safety (Advocates) states that this and
similar recent rulemaking actions by
FMCSA have been forged in a vacuum,
without acknowledging recent research
into transportation security. Advocates
says that even though the SNPRM
provides an opportunity for FMCSA to
adopt aggressive safety and security
measures, the agency ignores the
realities of the potential threats that
hazardous materials pose to people,
institutions, and the environment.
FMCSA Response: While FMCSA
appreciates Advocates’ suggestion to
adopt aggressive safety and security
measures and has striven to create an
aggressive safety program, we note that
the development of these regulations
has occurred over many years, involving
dialog between not-for-profit
organizations, States, and industry
representatives through a number of
notices in the rulemaking process. In
addition, these rules were created in
consultation with a number of

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government agencies having jurisdiction
over and particular interest in hazmat
safety and security, and we have made
a concerted effort to coordinate and
unify efforts. The requirements for
obtaining and maintaining a permit are
commensurate with the level of safety
appropriate to the high hazards posed
by the materials covered under the
program. The permit program is one
piece of a comprehensive security and
safety strategy including RSPA’s
security rulemaking, FMCSA’s own
research into security technologies, and
the collaborative HM–232A rulemaking
addressing multimodal security
concerns.
Six commenters (ATA, COSTHA,
CGA, IME, Advocates, and NASSTRAC)
raise the issue that, rather than submit
to the proposed permit requirements,
carriers may refuse to ship hazardous
materials. COSTHA and IME state that
if legitimate carriers refuse to carry
hazardous materials, then the
transportation of these products may
shift to noncompliant carriers or other
modes of transportation. IME points to
the example of the recent impact of
security regulations issued by the
Bureau of Alcohol, Tobacco, Firearms &
Explosives (ATF) on the commercial
transportation of explosives.
Fisher Scientific Company LLC
(Fisher Scientific) states that some of its
carriers have already indicated they will
not be securing permits for transporting
hazardous materials. As a shipper of
many types of hazardous materials,
Fisher Scientific tries to leverage its
transportation costs by having one
carrier satisfy all of its transportation
needs. If carriers refuse to transport
hazardous materials, Fisher Scientific’s
costs will increase because it will need
to hire multiple carriers.
FMCSA Response: While we
understand the possible effects a
permitting program may have on the
hazardous materials transportation
industry, we also recognize that many
factors play a role in a company’s
decision to carry hazardous materials.
Permits are already required in 40
States, and recent security measures by
RSPA, TSA, and other agencies may
have a greater influence than today’s
final rule on a company’s decision to
carry hazmat. We believe commenters
may have overestimated the impact this
permitting rule will have on hazardous
materials carriers. FMCSA has observed
the development of companies
specializing in hazardous materials
transportation that handle all aspects of
a hazmat shipment, including routing,
tracking, and regulatory compliance.
While it is possible that the nature of
hazardous materials shipping may

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change due to new security awareness,
FMCSA believes the market is well
equipped to meet the ever-present
demand for the transportation of
hazardous materials in the United
States.
In any case, FMCSA took these
comments into consideration in
developing the final rule and believes
that the safety permit program adopted
does not present the same burden as
that which the SNPRM may have
presented. FMCSA has also considered
the effects on the industry in its costbenefit evaluation for this rulemaking.
National Tank Truck Carriers (NTTC)
and Overnite Transportation (Overnite)
request that shippers be included as
active participants in the permit
program. NTTC and Overnite are
concerned that only the carrier bears
responsibility and liability under the
proposed permit requirements, while in
fact the shipper plays an integral role.
NTTC points out that Section 5109 of
the Hazardous Materials Transportation
Act (HMTA) includes a direct reference
to ‘‘Shipper Responsibility’’ and gives
the Secretary unfettered discretion to
determine the scope of the permit
program.
FMCSA Response: FMCSA’s direct
jurisdiction is over carriers rather than
shippers. Although Section 5109
references shipper responsibility and
gives the Secretary discretion to
determine the scope, our jurisdiction
cannot reach shippers (unless the
company is also a carrier). This
authority was specifically delegated to
RSPA.
In comments concerning the security
aspects of this rule, ATA states, ‘‘* * *
it is important to recognize that there
has never been a terrorist attack in the
United States using a registered motor
carrier transporting one of the
designated hazardous materials.’’
FMCSA Response: FMCSA points out
that before the 9/11 attacks, terrorists
had not attempted an attack of this
magnitude. Airport and airline security
had been identified prior to 9/11 as
issues needing action, but it was only
after 9/11 that cockpit doors were fully
secured. We cannot limit our actions to
prevent only the type of terrorist attacks
that have already occurred. FMCSA
strongly believes it is appropriate for the
agency to address the transportation of
these high-hazard materials in a
proactive manner. Through this
permitting program, FMCSA believes it
is reducing the possibility of ‘‘bad
actors’’ carrying high-hazard materials,
and thereby helping to avoid accidental
and purposeful releases.

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B. Preemption of State Programs
Five commentors (IME, Advocates,
ATA, NASSTRAC, and an individual)
state that the proposed rule should
preempt State permitting programs and
eliminate the burden placed on
hazardous materials motor carriers by
dissimilar, redundant, non-Federal
permitting programs unilaterally
imposed by States. One commenter, the
Alliance for Uniform Hazmat
Transportation Procedures (Alliance),
generally agrees with FMCSA’s analysis
of limited preemption and supports the
continuing role of State permit programs
as outlined in the SNPRM. The Alliance
believes that the State Uniform Program
could accomplish the objectives of the
proposed Federal safety permit. The
Alliance requests that FMCSA
specifically name Alliance’s uniform
program as not preempted by the
proposed regulations, and as a ‘‘safe
haven’’ for States wishing to regulate
hazardous materials transportation.
An individual commenter asserts that
the State permit programs are ‘‘really
just a superficially legal means to gather
revenue (taxation) from out of state
hazmat carriers.’’ This commenter says
that if DOT refuses to preempt State
programs, it should at least ‘‘make them
uniform in nature, limit the fees to the
cost of administration, and to eliminate
totally the county permit programs.’’
IME states that the current state of
hazmat motor carrier permitting
requirements does not look much
different than it did in 1990, when
Congress enacted 49 U.S.C. 5109 and
5119 on permit authority, and that the
proposed regulations do nothing to
improve the situation. IME, Advocates,
and the NASSTRAC point out that
Congress expressly gave DOT authority
to preempt State hazardous materials
laws to ensure State laws achieve
greater uniformity. The NASSTRAC
states that, to the extent similar or other
excessively burdensome or
counterproductive requirements exist at
the State level, it is a misguided form of
federalism to forgo the opportunity to
address them in this proceeding.
ATA and Advocates assert that the
agency’s decision in the SNPRM not to
move forward with a uniform permitting
system for intrastate transportation
amounts to an unsubstantiated
statement that such a program would be
impossible to administer.
ATA and Advocates also point out
that DOT has exercised its preemption
authority in the past, through RSPA’s
final rule requiring that all intrastate
shippers and carriers comply with
RSPA’s implementing regulations for
hazardous material motor carrier

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transport (62 FR 1208, Jan. 8, 1997).
RSPA’s final rule expressly preempts
State laws, regulations, and other
administrative mechanisms that conflict
with prevailing Federal hazmat law and
regulation. Both commenters noted
RSPA is clearly fulfilling the
congressional direction of the
Hazardous Materials Transportation
Uniform Safety Act of 1990 (HMTUSA)
by applying the broad authority granted
to the Secretary to achieve more
intrastate-interstate hazmat
transportation uniformity. ATA and
Advocates argue that FMCSA has the
same statutory authority to establish
more uniformity in the area of motor
carrier hazardous materials
transportation in this rulemaking.
IME asserts that FMCSA’s summary of
the background on this rulemaking is
incomplete and misleading. IME states:
In 1990, Congress directed the Secretary of
Transportation to implement a motor carrier
safety permit for motor carriers of certain
hazardous materials and, at the Secretary’s
discretion, to expand the list of materials
triggering a permit by November 1991—the
‘‘§ 5109’’ permit * * * FMCSA did not even
release a proposed rulemaking until 1993.

IME states that the proposal was
criticized as inadequate by the regulated
community, States and safety advocates,
and that, in the meantime, a
congressionally mandated working
group of States was convened to
develop uniform forms and procedures
for States to use to register and permit
hazmat motor carriers—the ‘‘§ 5119’’ or
‘‘uniform’’ permit. According to IME,
the working group met its 1993 statutory
deadline to submit a report to Congress
on the feasibility of a Uniform Permit.
IME states that the working group
recommendations supported a Uniform
Program, and that Congress directed the
Secretary to ‘‘prescribe regulations to
carry out the recommendations
contained in the report.’’ According to
IME, all that remained to implement
this section was for the Secretary to
identify those ‘‘recommendations with
which the Secretary agrees.’’ IME asserts
that, as with ‘‘the § 5109 permit,
including the § 5105 inspection
requirement for certain vehicles
carrying radioactive material, the § 5119
permit has languished at FMCSA.’’
ACC, Minnesota Department of
Transportation, CVSA, and the Alliance
also support a uniform program. The
Alliance comments:
States belonging to the Uniform Program
urge the FMCSA to more closely consider the
Uniform Program as an alternative to the
proposed federal permit. The Uniform
Program is an established, demonstrated
program that could achieve the same goals as
the proposed federal permit in a more cost-

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effective and efficient manner. Seven states
are already successfully using this program
and, with a few minor modifications which
the Alliance is prepared to make, it could
easily be extended to cover all shipments of
the four types of materials covered under the
federal safety permit. The Alliance proposes
a consultation with FMCSA to work out the
details of such an approach.

In view of its comments, the Alliance
‘‘requests that FMCSA defer any
decision relating to a uniform program
until misunderstandings related to the
Alliance Uniform Program is alleviated
through consultation with Alliance
members (sic) states and the Alliance
Governing Board.’’
ATA states that the most efficient way
to ‘‘* * * harmonize the myriad of
existing hazardous materials permits
and relieve the trucking industry of a
significant administrative
burden * * *’’ is to incorporate any
new Federal requirements into the
existing Uniform Permitting Program,
authorized by 49 U.S.C. 5119. COSTHA
also urges that a ‘‘uniform program be
applied nationally and to preempt a
myriad of state and local permitting
systems.’’
FMCSA Response: FMCSA recognizes
the authority of States to implement
hazardous materials permits. For the
materials covered by FMCSA’s safety
permitting program, States are
preempted only if implementing a
program with more stringent operational
requirements than prescribed in this
final rule. This addresses commenters’
concerns for a nationwide uniform
program for the materials covered by the
Federal safety permit. However, this
does not prevent States from permitting
other materials, such as hazardous
wastes. This approach is similar to
RSPA’s administration of its registration
program, which preempts State
registration programs for the list of
materials covered by the RSPA
registration program while allowing
States to implement other types of
registration programs.
A uniform permit program for these
identified materials is essential to
provide for ease of interstate
transportation. FMCSA acknowledges
the Alliance program is not currently
identical to the program required in this
final rule. However, FMCSA has been
assured by the Alliance that its program
will mirror the FMCSA program in the
future, thus aligning States currently
working on a State-by-State uniform
program with the Federal permit
program. If a State’s program is
equivalent to the Federal program, then
FMCSA will issue a safety permit based
on the successful issuance of the
comparable State permit.

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C. Qualification Based on State Permit
Proposed § 385.411 would allow
FMCSA to issue a Federal safety permit,
without further inspection or
investigation, when it can verify that a
State has a safety permit program that is
equivalent to the requirements in 49
U.S.C. 5109. Air Products and the
Alliance both support this proposal.
Short of adopting the Alliance Uniform
Program, the Alliance supports the
FMCSA proposal to ‘‘issue a federal
safety permit to a carrier without further
inspection or investigation when
FMCSA is able to verify that the carrier
holds a safety permit issued by a State
under a program that is equivalent to
the federal safety permit program.’’ The
Alliance believes this is efficient and
that it recognizes existing expertise in
State programs. The Alliance also
believes that the FMCSA proposal cuts
the burden on carriers and recognizes
the dual nature of State-Federal
regulation of hazardous materials
transportation.
ATA comments that the proposed rule
states that where a motor carrier
participates in an equivalent State
program, the carrier must still apply for
the Federal safety permit, and FMCSA
will immediately issue the permit
without further inspection or
investigation. ATA points out that at
this time there are no ‘‘equivalent’’ State
permit programs.
Advocates states it is not completely
averse to FMCSA’s proposed reliance on
prior State safety permits. However,
Advocates comments that the preamble
does not explaining how the agency will
ensure that State permits are in fact
equivalent to the Federal program
requirements, and how often
determinations of equivalence will be
performed through frequent
reevaluations of State permitting
practices.
Alliance comments that, to work
cooperatively with FMCSA, it is
considering an upgrade to its program to
cover elements of the new Federal
permit that it currently lacks. This
would consist primarily of adding
questions related to a carrier’s security
plan and shipment tracking system.
Once this program revision is in place,
motor carriers with permits from
Alliance member States and that
transport hazmat in Alliance member
States would have received scrutiny
equivalent to the Federal permit.
Alliance believes its program could
substitute for the Federal safety permit.
FMCSA Response: FMCSA agrees
with ATA that there are no current
equivalent State programs. However, we
have been assured by the Alliance that

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it is dedicated to cooperating with
FMCSA in developing equivalent
programs. FMCSA will identify State
programs that match the Federal safety
permit program. These programs must
have the same requirements as set forth
in this final rule. If a carrier is issued
a permit by a State identified as having
the same requirements as the Federal
requirements, FMCSA will
automatically issue the carrier a Federal
permit. Thus, individual States
(including those in the Alliance) will be
able to administer their registration
programs, as long as the State program
is identical to the requirements in this
final rule for the materials covered by
this final rule. FMCSA looks forward to
the Alliance’s adjusting its program to
facilitate compliance and uniformity
between State and Federal programs.
D. List of Materials (Applicability)
Twelve comments address the issue of
applicability. Six commenters (Air
Products, NTTC, ATA, Distilled Spirits
Council of the United States (DISCUS),
NASSTRAC, and ACC) agree with
FMCSA’s proposal not to expand the
statutory mandated list of hazardous
materials for which a permit is required.
Three commenters (Advocates, IME, and
Onyx Environmental Services (Onyx))
believe that FMCSA should address the
need to permit coverage beyond the
minimum mandated in 49 U.S.C. 5109.
IME states, ‘‘FMCSA’s determination
to simply go with the section 5109
statutory list is not dictated by current
realities.’’ IME adds that in developing
an appropriate list of materials for a
safety/security permit and
accompanying operational restrictions,
FMCSA could consider ‘‘the
predictability of shipments, the volume
per shipment or package, the population
centers traversed, the number and
distance of trips, the proximity of
significant landmarks or public events,
and the level of security risk as
determined by the Department of
Homeland Security.’’
ATA believes that FMCSA should
‘‘raise the threshold quantities used to
trigger a motor carrier’s obligation to
obtain a federal safety permit.’’ It states,
‘‘* * * for example, it is unlikely that
55 lbs. of explosives or 1 liter of PIH
material will cause damage approaching
that of the Oklahoma City bombing.’’
APA, Salt River Valley Water Users’
Association, and Salt River Project
Agricultural Improvement and Power
District (SRP) state that the scope of the
proposed safety permit program is
unwarranted and unfair. SRP proposes
that the rule be modified to apply only
during transportation of hazardous
materials in excess of 500 gallons or

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more than 75 road miles in a 12-hour
period.
Advocates states that
‘‘* * * unfortunately, the FMCSA has
chosen to cover only the lowest possible
number of motor carriers by limiting the
regulation essentially to only the
statutory minima specified by
Congress.’’ Advocates cites the 13-year
period since the passage of the
legislation, and in particular the two
years since September 11, 2001, as
reasons to urge FMCSA ‘‘in the strongest
possible terms to reconsider this
unrealistic abbreviation of its oversight,
approval, and enforcement role.’’
Advocates also recommends that
‘‘FMCSA should parallel at least the
requirements of the RSPA security plan
final rule with identical coverage for the
federal safety permit program.’’ Onyx
mirrors these comments by suggesting
that FMCSA adopt the list in
§ 172.800(b).
FMCSA Response: A number of
considerations went into the
development of the list adopted by
FMCSA in this final rule. Indeed, in
determining this list for applicability to
the safety permit requirements, FMCSA
analyzed the risks and potential damage
various hazardous materials in different
quantities could inflict if used
maliciously or as a consequence of an
accidental release. We used information
from different sources to piece together
a coherent picture on the possible risks
these quantities of hazardous materials
pose. For example, FMCSA disagrees
with ATA about the effects one liter of
a TIH, Hazard Zone A, could have on a
population in an enclosed environment,
or that 55 pounds of some Division 1.1
explosives would not produce
significant damage to vital structures.
We also note that tying permits to
distance traveled and time in transit (in
addition to the basic criteria concerning
amounts and types of materials) could
pose significant logistical challenges to
the implementation and enforcement of
a permit requirement.
FMCSA reviewed risk analysis for
hazardous materials safety, and
developed risk assessments for
accidents and terrorist strikes using
hazardous materials. In addition,
FMCSA considered the list of materials
that Congress specifically mentioned in
the statutory requirements for the
permitting rule. The list developed for
this final rule is the result of identifying
not only materials that present the
highest hazards in transportation, but
also materials that pose the largest risks
for human casualties and damage to
property and the environment if used by
a terrorist or militant. These materials
also generally face a higher level of

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regulation in the HMRs and FMCSRs. In
addition, the list of materials was
developed in consultation with RSPA
officials. The FMCSA safety permitting
program materials list is a subset of
those materials identified by RSPA’s
security requirements. Every effort has
been made to fit the permit program into
the larger realm of hazardous materials
safety and security regulations.
E. Duplication of Other Agency
Programs
NTTC, ATA, APA, Onyx, ACC,
Alliance, and Minnesota Department of
Transportation recommend that
program duplication could be
substantially eliminated if the FMSCA
permitting program were somehow
combined with the RSPA registration
program. As referenced above,
Alliance’s ‘‘first recommendation is for
FMCSA to use the existing Alliance
program to achieve the purposes of the
proposed federal safety permit.’’
Alternatively, Alliance agrees with
commenters who suggest using the
existing RSPA annual registration
program rather than creating a new and
separate system.
NTTC states that, with certain
amendments, the FMCSA permitting
program can prove a marginal
improvement to the Administrator’s
comprehensive regulatory program
despite its inherent redundancy with
State programs and its overlap with the
current ‘‘hazmat carrier/shipper
registration program’’ (administered by
RSPA).
Alliance, IME, Air Products, the
Compressed Gas Association (CGA),
Onyx, and ACC state that the proposed
new form MCS–150B is unnecessary
because it largely duplicates existing
form MCS–150. Most of these
commenters recommend that any
additional information necessary could
be obtained by adding to the current
form. For example, IME states, ‘‘* * *
only nine of the 28 data elements on the
proposed form MCS–150B require
information that is not already reported
on Form MCS–150.’’ In addition to
questioning the need for two separate
application forms, Onyx requests that
the term ‘‘HM incidents’’ be defined
because item 20 on form MCS–150B
requests information on any hazardous
materials listed in question 18.
FMCSA Response: It was FMCSA’s
intent in the SNPRM to propose that the
MCS–150B be completed in place of the
MCS–150. Those entities seeking a
safety permit would complete MCS–
150B instead of MCS–150. This way,
entities that do not transport permitted
materials would not be presented with
the fields on the form pertaining to the

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permit application process, and carriers
seeking a permit would only have to
complete one form for FMCSA. In
addition, the question asking about
incidents over the last 2 years was
eliminated because that information
could be determined within DOT.
We disagree with commenters that the
safety permit program administered by
FMCSA should be combined with the
RSPA registration program. The two
programs serve completely different
purposes and require significantly
different types of information from
motor carriers. A combined application
form could confuse applicants and
result in serious data and financial
management problems. In addition, the
registration program does not involve a
safety or security evaluation of the
covered carriers, and thus provides no
enforcement mechanism for companies
that do not comply with safety and
security requirements.
There are several barriers to
combining this permitting application
process with RSPA’s registration
process, including the differences in
entities applying for registration and the
safety permit. However, FMCSA, RSPA
and other DOT agencies are committed
to reducing the paperwork burden
resulting from the application process
under the ‘‘e-commerce’’ initiative.
FMCSA, along with other government
agencies including RSPA, attempts to
ease the burden by providing on-line
application procedures. FMCSA was
able to reduce the paperwork internally
by replacing the MCS–150 with the
MCS–150B. Future efforts to streamline
related application processes are
constantly being considered.
F. Obtaining a Safety Rating
Under proposed § 385.407(a), a motor
carrier must have a ‘‘Satisfactory’’ safety
rating in order to obtain a safety permit.
CGA, Air Products, ATA, Advocates,
NASSTRAC, CVSA, and Alliance, while
generally supportive of the Satisfactory
rating concept, raise questions as to how
the concept will work in practice.
CGA, Air Products, Alliance, and
NASSTRAC question FMCSA’s ability
to act promptly either to determine a
carrier’s initial eligibility for a
Satisfactory safety rating or to
reestablish that rating when it has been
lost and the carrier has taken steps to
remedy the problem.
Advocates opposes the proposed
issuance of a temporary safety permit
for up to 270 days. Advocates ‘‘believes
that this proposed feature of the
supplemental proposed rule has
numerous pitfalls both for safety and
security, and that it would be unwise
public policy to allow a carrier without

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a compliance review and ‘‘Satisfactory’’
safety rating nevertheless to secure a
permit that would be valid for 9 months
* * *.’’
FMCSA Response: FMCSA agrees that
270 days is too long for a temporary
permit. Carriers requiring a safety
permit will receive a compliance review
over the two-year phase in period
within 180 days of initial application
instead of the proposed 270 days. If a
safety permit is revoked or suspended
because of problems with the safety
rating, procedures are in place to
reinstate the suspended or revoked
permit when the problems with the
safety rating have been resolved.
G. Pre-Trip Inspections
GE Nuclear Energy expressed several
concerns with the pre-trip inspection
requirements. It appears that GE Nuclear
Energy did not understand that the pretrip requirement of this rule would be
met by performing a NAS Level VI
inspection developed by CVSA. GE
Nuclear Energy also argued that the
proposed regulation states that if ‘‘any
violation of requirements * * * is
discovered, the vehicle must be placed
‘‘out of service’’ and may not be moved
* * *.’’ GE Nuclear Energy points out
that certain radioactive materials
shipments, such as irradiated fuel, are
required to be moved to safe havens, as
defined in 10 CFR part 73, for security
reasons without delays. Therefore, GE
Nuclear Energy requests that the
proposed regulations in part 385 and
any other necessary section be clarified
to allow limited vehicle movement to
safe havens.
Advocates and CVSA fully support
the agency’s proposals concerning pretrip inspections, pursuant to 49 U.S.C.
5105(e), that the inspections be
conducted by trained government
inspectors using standards similar to the
NAS Level VI protocol developed by
CVSA. However, Advocates strongly
supports extending inspection criteria
similar in stringency to those required
by CVSA Level VI to all hazmat carried
under Federal safety permit. CVSA
believes it should be stated explicitly
that inspections will continue in the
current manner, which would allow
only CVSA certified officers and
inspectors to conduct the inspections.
FMCSA Response: In response to GE
Nuclear Energy’s concerns about a
vehicle with certain radioactive
materials shipments being placed out of
service because of the pre-trip
inspection, FMCSA notes that this is a
requirement for pre-trip inspections.
Thus, if a vehicle did not comply with
the requirements, it would remain at the
shipper facility and not be allowed to

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enter transportation. In the unlikely
event a vehicle were found in violation
of any of the pre-trip inspection
requirements while in transportation
and placed out of service, the vehicle
would be escorted to a safe haven or
other suitable place.
In 49 U.S.C. 5105(e), FMCSA is
required to implement a pre-trip
inspection for route-controlled
radioactive shipments, and this was
proposed in the SNPRM. The North
American Standard (NAS) Level VI pretrip inspection is specifically referenced
in the regulations as meeting the
requirements for the permit pre-trip
inspection process. In response to
Advocates’ suggestion to apply the pretrip inspection to all permitted
materials, we cannot consider this at
present as it was not proposed in the
SNPRM.
H. Route Plans
Most commenters are critical of and
disagree with the proposal that a carrier
prepare and provide its drivers with a
written route plan covering any
shipment designated in the rulemaking.
Commenters have two general
criticisms. First, they fail to see the
security benefits of this proposal. For
example, ATA writes:
The SNPRM states that adherence to route
plans will increase safety. Aside from this
conclusory statement, FMCSA has not
explained the safety benefits associated with
maintaining written route plans. Based upon
the FMCSA’s historical experience with the
use of route plans for radioactive substances,
we believe that the Administration has the
tools at its disposal to quantify the safety
benefits that have been attributable to the use
of route plans.

The second general criticism is that
there are many instances in which a
driver must alter the route. For example
CGA writes:
A vehicle transporting time sensitive
deliveries may be forced to abandon a
specific route due to a major traffic tie up.
The carrier may, in the performance of a
delivery of one shipment covered by this
rulemaking, be required to pick-up a
container of similarly regulated material in
excess of the minimum for return. No written
route plan would be available to the driver
in this instance.
On many city deliveries drivers need to
adjust their route based on the customers
receiving hours or congestion at the
customer. The driver, rather than waste time
in line to make a delivery, may opt to
proceed to the next customer and then return
to make the delivery at a later time. In
addition to it being a good productivity
practice it would be especially important
when considering the Hours of Service
regulations.

Most commenters argue that this
proposal would curtail the legitimate

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movement of materials and create a
significant economic burden without a
real increase in security.
Several commenters also are
concerned about the requirement that
drivers amend the written route plan to
show any deviations from the original
plan. Air Products requests clarification
about when a driver must amend the
written route plan and what constitutes
a deviation requiring an amendment.
NTTC writes:
Even under totally legitimate
circumstances, vehicle drivers should be free
to make acceptable route changes to avoid
extraordinary congestion, accidents, detours,
etc. without having to make handwritten
notations on documents while driving and
without the permission (or direction) of local
law enforcement.

Finally, commenters are critical about
the requirement that carriers (not
drivers) develop and maintain the
written route plans. Advocates strongly
supports this proposal and states:
Advocates strongly supports the FMCSA’s
proposal for a prepared, written routing plan
to be in the possession of the driver at all
times for carrying Hazard Zone B materials
* * * We also strongly support the
requirement for alternate routing to be
allowed only at the behest of enforcement
authorities or bona fide emergency
conditions. Advocates also supports the
additional feature of this section of the
supplemental proposed rule that prohibits
the driver from preparing the written route
plan.

However, Advocates believes that
FMCSA needs to make it clear that
amendments of the written route plan
by the driver must be confined solely to
alternate routes by reason of
enforcement authority direction or
because of verified emergency
conditions, such as road and bridge
closures, forest fires, and hazmat spills.
FMCSA Response: FMCSA recognizes
the difficulties in developing route
plans for a range of hazardous materials.
Less-than-truckload (LTL) carriers, in
particular, could face significant
logistical problems. Thus, FMCSA will
not adopt additional route plan
requirements in this final rule. Instead,
the route plan requirements will apply
only to materials that currently require
a route plan (highway route-controlled
radioactive Class 7 and Division 1.1, 1.2,
and 1.3 explosive materials). The
requirements for route plans, which
address any changes that the driver
encounters en route, are specified in
§ 397.101 and § 397.67 of this
subchapter.
The agency believes it is important to
require the phone number aboard the
vehicle, so that when called, it is
answered by a company employee or

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representative of the company to
confirm that the vehicle is within an
expected route for that shipment.
FCMSA believes that, although the
phone-contact requirement is less
comprehensive than a written route
plan, it does provide an increased level
of security. This provides enforcement
officials with a mechanism to check that
the vehicle has not deviated too far from
its intended path. For example, if a
shipment of a permitted material is in
Ohio while it should be going from
Baltimore, Maryland, to Atlanta,
Georgia, an enforcement official would
want to confirm with the company that
this shipment is ‘‘off course,’’ and could
be stolen or misdirected. The only way
an enforcement official would be able to
confirm the destination and origin of a
material would be to contact the carrier
company, since hazardous materials
shipping papers do not require the
destination address.
I. Communications Plan
The proposed rule included a
provision that a communications system
be installed on each motor vehicle used
to transport a hazardous material listed
in § 385.403(a), to enable the vehicle
operator to immediately contact the
motor carrier during the course of
transportation of the hazardous
material. The proposed rule also
provided that each operator must be
trained in the use of the
communications system. All but one
commenter on this issue opposed these
requirements. Several commenters
submit that neither cell phone nor
satellite tracking devices will comply
with this provision. Commenters state
that cell phones are not ‘‘installed’’ in
the vehicle as required by the provision,
and there are vast regions of the country
where cell phone use is limited or
unavailable. Similarly, they note that
satellite tracking devices only function
when there is a direct ‘‘line of sight’’
between the vehicle’s antenna and the
relay satellite.
The proposed rule included new
requirements for a driver to
communicate with the motor carrier
once every two hours while transporting
a material for which a safety permit is
required. Most commenters oppose this
new requirement, citing three criticisms.
First, several commenters discuss
concerns about the driver using a cell
phone while driving or needing to pull
off the driving lines in order to make the
required phone call. Second, several
commentors mentioned the burden on
motor carriers that the call-in procedure
would create. The third criticism of the
two-hour notification is that the

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proposal conflicts with driver hours-ofservice requirements.
In addition, FMSCA proposed that a
motor carrier must contact law
enforcement authorities if more than
three hours have elapsed between driver
communications. Commenters call this
proposal unreasonable, burdensome,
confusing, and potentially unworkable.
Nine of the ten comments received on
this issue asked FMCSA to clarify what
law enforcement authorities should be
contacted. For example, several
commentors submit that a vehicle could
travel through various jurisdictions in a
short time, so that there are many law
enforcement choices (Federal, State, and
local) for a motor carrier to contact.
Advocates strongly supports the
FMCSA Field Operational Test initiative
to test a wide variety of safety and
security technologies for use within the
hazmat supply chain from offerors to
consignees. Advocates applauds this
vigorous investigation of supplementary
safety and security technologies and the
agency’s willingness to consider
modifying the contours of its safety
permitting system in light of the
findings of these trial technologies.
Advocates also emphasizes that the use
of remote tracking technologies to
ensure adherence to route plans, and to
ensure that drivers do not violate hoursof-service limits, is crucial to advancing
hazmat safety and security.
Along with the proposal to make
these calls, FMCSA proposed a
recordkeeping requirement. IME, Air
Products, and ACC object to the
proposal that motor carriers create and
then retain for six months records of
driver-carrier communications. IME
comments that companies with larger
numbers of drivers and carrier
personnel may be overwhelmed by the
demands of keeping and consolidating
written records that include routine
communications. Air Products would
like to know the frequency for updating
the communications log; in some
instances it may be a considerable time
before the facts or conditions that
prevented communication from the
driver are known. ACC states that
maintaining a log of this nature would
require substantial personnel resources
and yield little security benefit.
FMCSA Response: FMCSA agrees
with commenters that the
communications requirements proposed
in the SNPRM could present logistical
problems. Further, we are working with
RSPA on an ongoing security
rulemaking under docket HM–232A.
FMCSA does not want to create
requirements in this rulemaking prior to
completion of the Field Operational
Test initiative and the HM–232A

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rulemaking. Essentially, FMCSA’s
original proposal was an effort to
develop a ‘‘low-tech’’ tracking system of
permitted materials through the use of
communication with the driver of the
shipments. However, if the system is too
cumbersome, it will fail to achieve this
goal. Therefore, the requirements in this
final rule create a basic tracking system
that allows for flexibility. With a basic
framework in place, FMCSA will work
with RSPA in its security rulemaking
process to develop further security
measures.
The requirement in today’s final rule
for companies to develop a
communications plan requiring at least
two calls per day is an effort to
minimize the burden on industry, while
creating a basic structure for tracking
vehicles. It is probably current practice
with many drivers to check in with their
company twice a day (or at the pickup
and delivery of a load), and FMCSA
believes this is a minimum requirement
to assure that high-hazard shipments
undergo some type of tracking and
monitoring. FMCSA does not intend
drivers to meet this requirement by
using a cell phone while operating a
motor vehicle, or to make an additional
stop. The agency believes that the twicea-day requirement is consistent with
current practice and can be met without
making additional stops. Due to the
decrease in the number of required
calls, maintaining a record of these calls
does not present the same burden as
maintaining a record of the number of
calls proposed in the SNPRM.
In addition, providing in the final rule
the TSA’s Transportation Security
Coordination Center phone number, and
recommending, rather than requiring,
that companies or drivers call the center
if notification is late or absent, will
reduce the number of ‘‘false calls.’’
FMCSA also believes it will provide
more flexibility to companies
inaccurately tracking shipments, while
also providing an avenue to report
missing or stolen shipments.
FMCSA notes that the reduced
number of required calls in today’s rule
greatly diminishes the paperwork
burden. In addition, the flexibility
provided for this requirement should
address commenters’ concerns about the
paperwork requirements. FMCSA
allows for flexibility by requiring
companies to have a system in place to
track the calls made under the
communications plan. Either the driver
or the company may keep a record of
when and where the calls are made.
However a company wishes to keep this
information, it must be made available
to an enforcement official upon request.

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J. Permit Documentation
CGA, Air Products, NASSTRAC, and
ACC support FMCSA’s proposal not to
require the carrier’s safety permit
number to appear on shipping papers,
but state that the carrier would still be
required to maintain a copy of the safety
permit or have another document
showing the permit number in the
vehicle transporting a designated
hazardous material. These commenters
suggest that if the registration
application for the hazardous materials
Certificate of Registration were used for
issuing the safety permit, one document
could contain both the registration and
safety permit number(s), thereby
reducing administrative effort and the
driver’s paperwork burden. ATA states
that, to the extent evidence of the permit
is required in the vehicle, that
document should be combined with the
RSPA registration certificate or Uniform
Program document and FMCSA should
not pursue the creation of a new,
separate motor vehicle certificate.
NASSTRAC also supports FMCSA’s
decision to leave to another occasion
implementation of the statutory
requirement that shippers may offer a
designated commodity ‘‘only if the
carrier has a safety permit.’’ NASSTRAC
suggests this requirement may be met in
less burdensome ways, such as
attaching permits to contracts with a
requirement that the carrier notify the
shipper immediately of any change in
its status. Or it may be met in more
burdensome ways, such as requiring
that shippers confirm carrier permit
status every time a shipment of a
designated commodity is tendered.
NASSTRAC would not support the
latter approach.
Alliance asks about the statement in
the SNPRM preamble that ‘‘A state or
local law enforcement officer would be
able to confirm the validity of this
number (safety permit number) through
real-time or close to real-time
information made readily accessible by
FMCSA.’’ Alliance wants to know what
system would provide this information
and how it would be used.
FMCSA Response: It is essential for
enforcement purposes that a carrier’s
permit number or a copy of its permit
be on board the vehicle for which the
permit is required. Otherwise, it would
be impossible for a roadside inspector to
determine if the company held a
current, valid permit. Using a computer
system database or calling into a facility
with access to these systems allows for
real-time or close to real-time tracking of
permit numbers through current
FMCSA systems.

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39359

Since this program is not being
combined with RSPA’s registration
program, FMCSA will not require the
permit number to be on the RSPA
registration statement. However, a
carrier that wishes to present all its
required registration or permit numbers
together will have the flexibility to
display the permit number on any
document the carrier desires.
K. Enforcement
Advocates strongly supports the
criteria under which a safety permit will
be subject to denial, suspension, or
revocation, but asks for clarification on
the terms of each of the three actions.
Since the hazmat safety permit
addresses a specific subset of hazmat
deemed especially dangerous and
worthy of additional Federal approval
and oversight, the agency should specify
a minimum period that must elapse
before the carrier can reapply for a
hazmat permit after the permit was
suspended or revoked. Advocates
strongly suggests establishing a
minimum suspension period of 30 days
and a minimum revocation period of 90
days before a carrier could attempt to
regain its safety permit status.
FMCSA Response: Any violation of
the permitting rule falls under the HM
statute penalty provision found in 49
U.S.C. 5123. We have modified the title
of paragraph (e) in Appendix B to Part
386 to reflect this. FMCSA has compiled
a list of critical and acute violations that
could affect a company’s safety rating,
leading to the suspension or revocation
of a safety permit, along with a listing
of other actions that could lead to
revocation or suspension of a permit.
For the first instance of violating these
requirements, the permit will be
suspended until the problems are
addressed. The second time a motor
carrier is found in violation of these
requirements, the permit will be
revoked for one year. The decision to
deny a permit is outlined in §§ 385.405
and 385.407.
Although we did not receive
comments concerning this issue,
FMCSA removed the SafeStat listing as
a reason for denying a permit because
the SafeStat listing is redundant in view
of the crash rate, out-of-service rate, and
security requirement criteria for denial.
L. Cost-Benefit Analysis
The 10 commenters addressing cost
and benefit issues question virtually all
of FMCSA’s assumptions and estimates,
with respect to costs, benefits, or both.
These commenters are IME, CGA, ATA,
COSTHA, NASSTRAC, Motor Freight
Carriers Association (MFCA), Alliance,

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Fisher Scientific, BPC, and an
individual.
ATA, COSTHA, MFCA, BPC, and
Fisher Scientific question FMCSA’s
assumption that currently 90 percent of
carrier vehicles or drivers are equipped
with cell phones or some kind of
communications equipment. MFCA
estimates that the costs of
communication devices to the industry
would be ‘‘10 times the FMCSA total
industry estimate of $125,000.’’
IME, ATA, Alliance, COSTHA, and
Fisher Scientific all question FMCSA’s
estimate of a 25 percent reduction in the
number of hazardous materials
accidents as a result of this rulemaking.
NASSTRAC, IME, and ATA question
the use of September 11 as a basis for
estimating the costs of an intentional
hazardous materials incident and the
potential benefits from avoiding such an
incident. ATA states:
Using the September 11, 2001, incident
cost estimates is inappropriate in the context
of discussing the cost of a truck bomb with
some quantity of regulated hazardous
materials. First, the September 11th attack
was not one terrorist attack; it was the
coordination of four separate attacks. Second,
the instruments used in the attacks were
airplanes, not trucks. Third, the damage from
the attacks was not caused by the release of
hazardous materials that are subject to this
Proposed Rule. As such, the cost estimates
used do not comply with DOT’S data quality
guidelines and are otherwise arbitrary and
capricious.

ATA further states that based on
FMCSA’s own assumption that the
SNPRM will thwart one of the next
thousand terrorist attempts, ‘‘we would
expect this rule to stop one terrorist
attack over the next 5,000 years.’’
FMCSA Response: The cost of
communications equipment was
partially responsible for FMCSA’s
reducing the number of phone calls
required and for allowing the calls to be
placed at times where access to a
payphone or customer phone would be
available. FMCSA has addressed many
comments concerning the use of
terrorist events in the cost-benefit
analysis for this final rule. For example,
instead of using a set probability that
this rule would prevent a terrorist
attack, we have performed a simple
sensitivity analysis to show the possible
range of benefits depending on the
probability the rule will prevent a
terrorist attack. Readers are encouraged
to refer to the full cost-benefit analysis
in the docket for further discussion of
these issues.

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IV. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA has determined that this
rulemaking is a significant regulatory
action within the meaning of Executive
Order 12866, and is significant within
the meaning of the U.S. 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 the issues related to
hazardous materials permitting.
FCMSA’s analysis determined that
first-year costs to implement the permit
program established in the final rule are
$5.3 million. The estimated annual costs
to HM carriers and FMCSA are $4.8
million, resulting in total discounted
costs over a 10-year period of $33.9
million. The estimated annual benefits
resulting from improved safety derived
from reduced accidental HM releases
alone are $3.6 million, which results in
total discounted safety benefits over a
10-year period of $25.3 million.
Additional security benefits are also
gained because the rule’s provisions
will hamper terrorists. Although we
cannot predict the actual security
benefits or the number and size of future
terrorist acts, the security benefits
clearly would be immense if the rule
prevented a terrorist act even a fraction
of the size of the Twin Towers calamity.
Further, based on the sensitivity
analysis performed for the security
benefits of the rule, using terrorism
costs assumed in a recent RSPA rule
establishing requirements for security
plans, if the permitting program has at
least a one-in-ten-thousand chance of
stopping a terrorist attack annually, then
security benefits would total $2.5
million annually, or $17.5 million
discounted over 10 years. This results in
a total net benefit to society. FMCSA
also did not quantify the rule’s
secondary benefits of avoiding property
damage, environmental damage, cleanup costs, and evacuations, because of
the uncertainty associated with these
estimates.
The intent of this rulemaking is to
enhance the safety and security of HM
shipments. This rule includes
requirements for motor carriers of
certain HM to obtain a safety permit
from FMCSA. In order to obtain a
permit, motor carriers must comply
with safety and security standards and
establish a system for communicating
with drivers either telephonically or via
electronic device. FMCSA will conduct
carrier assessments to ensure
compliance with operational, safety,

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and security standards. Carriers with
less-than-Satisfactory safety ratings will
be prohibited from transporting HM
materials requiring a permit.
The analysis presented in this
regulatory evaluation focuses on
benefits and costs for a permit program
covering only a certain group of highly
hazardous materials. The final rule
adopts a slightly expanded list
comprised of the statutory list and
additional explosive and toxic by
inhalation (TIH) materials in certain
quantities as appropriate. The list of
materials requiring a permit in this final
rule is as follows:
1. Radioactive Materials—A highway
route-controlled quantity of Class 7
materials.
2. Explosives—More than 25kg (55
pounds) of a Division 1.1, 1.2 or 1.3
material, or an amount of a Division 1.5
material requiring a placard under part
172, subpart F of Title 49 CFR.
3. Toxic by Inhalation (Division 2.3
and 6.1) Materials—Hazard Zone A
materials in a packaging with a capacity
greater than 1 liter (0.26 gallons); a
shipment of Hazard Zone B materials in
a bulk packaging (capacity greater than
450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk
packaging having a capacity equal to or
greater than 13,248 L (3,500) gallons.
4. A shipment of compressed or
refrigerated liquid methane or natural
gas or other liquefied gas with a
methane content of at least 85 percent
in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500
gallons) for liquids or gases.
The first-year costs to implement the
permit program established in the final
rule are $5.3 million. These include the
one-time costs for the permit
application and, if needed, a
compliance review. The estimated
annual costs to HM carriers and FMCSA
are $4.8 million. The total discounted
costs over a 10-year period are $33.9
million.
The major driver of HM carrier costs
is the cost to record and maintain
communication records. This cost item
represents about 99 percent of the total
annual costs to HM carriers to comply
with the permit program requirements.
The safety benefits were derived from
the projected crash reductions resulting
from the permitting program. These
total estimated benefits are large
because of the number of conventional
crashes that may be prevented.
Determining exact benefits of
preventing a terrorist attack is difficult.
Those that are available offer only
inexact comparisons. For example, the
benefit-cost analysis for RSPA’s HM–
232 final rule indicates that the cost of

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the attack on the Murrah Federal
Building in Oklahoma City amounted to
approximately $1.5 billion. Clearly, the
costs from the attacks of September 11,
2001, are far greater than the attack on
the Murrah Federal Building.
FMCSA derived a scaled estimate of
$25 billion as the cost of a malicious
hazardous materials incident. This
figure is based upon the lowest estimate
reported of the most costly terrorist
attack ever—the September 11th attacks;
the estimated cost of the Oklahoma City
attack; and the costs of other recent
terrorist attacks occurring in the past ten
years. Based on this information,
FMCSA prepared a simple sensitivity
analysis to produce a range of benefits
for the security portion of this rule.

FMCSA uses a range of probability that
the permitting program would prevent a
terrorist event using hazmat regulated
under the final rule. FMCSA uses the
estimate of $25 billion as the cost of an
intentional release of hazardous
materials covered by the rule.
This sensitivity analysis shows that if
the permitting rule has a one-in-onemillion chance of preventing a terrorist
attack, then that benefit is worth
$25,000. If the rule has a one-in-onehundred chance of preventing a terrorist
attack, the benefit falls to $250 million.
While it is difficult to determine the
chance that the permitting program
would prevent or deter an intentional
release, this type of analysis
demonstrates that because of the

39361

potential high cost of a terrorist attack,
efforts that may present even a small
chance of averting a terrorist attack can
provide security benefits.
As shown in Table ES–1 below, the
one-time costs for the carrier,
representing the costs of permit
application and compliance review, are
$0.5 million. The estimated annual cost
to HM carriers is $2.8 million. The
estimated annual cost to FMCSA is $2
million. These costs total $5.3 million.
The annual safety benefit is $3.7
million. If we conservatively estimate
that the rule has a one-in-ten-thousand
chance of stopping a terrorist attack, we
add an annual security benefit of $2.5
million. This provides a total benefit of
$6.2 million.

TABLE ES–1.—SUMMARY OF BENEFITS AND COSTS
Cost to HM carriers
Annual cost to FMCSA

$2 million .................................................

Initial onetime costs

Annual costs

Accidental
releases

$0.5 million ..................

$2.8 million ..................

$3.7 million ..................

The total discounted cost to both
FMCSA and HM carriers over a 10-year
period to implement the permit program
is $33.9 million. The total discounted
safety benefit over a 10-year period is
$26 million from accidental releases
alone. An additional amount of security
benefit is also gained but was not
included in this ten-year estimation.
Despite the potential for benefits to
exceed costs, there is a significant
difference in how benefits and costs are
allocated. The costs are assumed
primarily by thousands of carriers,
while most of the benefits accrue to the
general public. Furthermore, the
analysis does not account for some of
the benefits that would flow from
avoiding or preventing major HM
incidents. Major HM incidents may
result in long-term psychological and
economic effects that are costly to a
society and economy. Although
avoidance of these effects is a benefit
that can be measured in monetary terms,
this analysis has not attempted to
calculate these benefits because of the
great uncertainty associated with
estimating them.
FMCSA has prepared an in-depth
regulatory analysis that further explains
the basis for determining the costs and
benefits of this rule. This cost-benefit
analysis is available in the public docket
(Docket No. FMCSA–97–2180; formerly
FHWA–97–2180) for this rule. The
public docket is located on the Docket
Management System Web site: http://

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Annual benefits

dms.dot.gov/search/
searchFormSimple.cfm.
Executive Order 13175 (Tribal
Consultation)
FMCSA has analyzed this action
under Executive Order 13175, dated
November 6, 2000, and believes the rule
will not have substantial direct effects
on one or more Indian tribes; will not
impose substantial direct compliance
costs on Indian tribal governments; and
will not preempt tribal law. Therefore,
a tribal summary impact statement is
not required.
Executive Order 13211 (Energy Supply,
Distribution, or Use)
FMCSA has analyzed this rule under
Executive Order 13211, ‘‘Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use.’’ FMCSA has
determined that this action will not be
a significant energy action under this
Executive Order because it is not likely
to have a significant adverse effect on
the supply, distribution, or use of
energy. Therefore, a Statement of Energy
Effects under Executive Order 13211 is
not required.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act
of 1995 (Pub. L. 104–4; 2 U.S.C. 1532,
et seq.) requires each agency to assess
the effects of its regulatory actions on
State, local, and tribal governments, and
on the private sector. Any agency

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International
releases
$25,000–$250 million

promulgating a final rule that is likely
to result in a Federal mandate requiring
expenditures by a State, local, or tribal
government or by the private sector of
$100 million or more in any one year
must prepare a written statement
incorporating various assessments,
estimates, and descriptions that are
delineated in the Act. FMCSA has
determined that this rulemaking will
not have an impact of $100 million or
more in any one year.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980
(5 U.S.C. 601 et seq.) requires FMCSA
to evaluate the potential impacts of its
HM permitting rule on small businesses,
organizations, and governmental
jurisdictions. Whenever FMCSA
publishes a final rule, it must make
available to the public for comment the
flexibility analysis that evaluates the
impact of the proposed rule on small
entities. Section 603(b) of the Act
specifies that the contents of the
Regulatory Flexibility Analysis (RFA)
include the following five requirements:
1. Description of the reasons why
action by the agency is being
considered;
2. Statement of the objectives of, and
legal basis for, the final rule;
3. Description of and, where feasible,
an estimate of the number of small
entities to which the final rule will
apply;
4. Description of the projected
reporting, recordkeeping and other

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compliance requirements of the rule,
including an estimate of the classes of
small entities which will be subject to
the requirement and the type of
professional skills necessary for
preparation of the report or record; and
5. Identification, to the extent
practicable, of all relevant Federal rules
that may duplicate, overlap, or conflict
with the final rule.
In addition to the above requirements,
a description of any significant
alternatives to the final rule, which
accomplish the stated objectives of
applicable statutes and which minimize
any significant economic impact of the
final rule on small entities, is also
included in the analysis. The following
sections discuss the various elements of
the regulatory flexibility analysis
outlined above.
(1) Reasons why action by the agency
is being considered. FMCSA has
initiated a rulemaking mandated by
Congress for a new HM truck
transportation permit system. The intent
of the final rulemaking is to enhance the
safety and security of high-hazard HM
shipments. FMCSA is taking this action
because certain high-hazardous
materials, if released either accidentally
or intentionally during transportation,
have the potential to be used in terrorist
attacks or present a greater hazard in the
event of an accident.
(2) Objectives of and legal basis for
the final rule. The objective of FMCSA’s
permit program is to provide oversight
of the safety and security of carriers
transporting selected high-hazard HM.
The permitting program will impose
additional requirements and provide
additional oversight of these carriers.
Oversight will include imposing
operational security requirements,

setting minimum safety and security
standards, and making safety and
security assessments of carriers to
ensure compliance with operational,
safety, and security standards. The
permit program is intended to improve
the safety and security of HM shipments
and thus reduce deaths, injuries, and
related damages stemming from
accidental and intentional incidents
involving these commodities.
Motor Carrier Safety Permits (49
U.S.C. 5109) requires that FMCSA
permit carriers that transport Divisions
1.1, 1.2, or 1.3 explosives, liquefied
natural gas, extremely toxic by
inhalation hazardous materials, and
highway route-controlled quantities
(HRCQ) of radioactive materials. Section
5109 allows FMCSA to permit other HM
if appropriate. Section (E), part (2), of 49
U.S.C. 5109 enables the Secretary of
Transportation to determine the
standards for deciding the duration,
terms, and limitations of a safety permit.
(3) Description and estimate of the
number of small entities. The final rule
affects intrastate and interstate carriers
of HM. The number of small carriers is
determined based on the Small Business
Administration (SBA) definition used
for the RSPA registration file. RSPA
flags the small carriers using the SBA
definition to indicate if they are
qualified based on the number of
employees and business dollars. The
number of small carriers that could
potentially be affected by the new
permit system is determined by the
implementation of the amounts and
types of materials covered. This list is
described below.
List of Covered Materials
The permitting program covers the
statutory or congressionally required list

of HM under 49 U.S.C. 5109. This
legislation requires FMCSA to permit
carriers that transport these types and
amounts of HM. In addition to this
statutory list, FMCSA has modified the
list to include bulk quantities of
Division 1.5 materials and toxic—byinhalation materials that include Zone
B, C, or D materials in bulk quantities.
The list of covered materials is as
follows:
• More than 25 kg (55 pounds) of
Division 1.1, 1.2, or 1.3 explosives, or an
amount of a Division 1.5 material
requiring a placard under 49 CFR part
172, subpart F.
• Radioactive Materials—A highway
route-controlled quantity of Class 7
materials.
• Toxic-by-Inhalation (Division 2.3
and 6.1) Materials—Hazard Zone A
materials in a packaging with a capacity
greater than 1 liter (0.26 gallons); a
shipment of Hazard Zone B materials in
a bulk packaging (capacity greater than
450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk
packaging having a capacity equal to or
greater than 13,248 L (3,500) gallons.
• A shipment of compressed or
refrigerated liquid methane or natural
gas or other liquefied gas with a
methane content of at least 85 percent,
in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500
gallons) for liquids or gases.
Table 1 shows the number of small
carriers that could potentially be
affected. Small carriers are defined as
carriers with 20 power units or less.
About 78 percent of the carriers
included for this list of materials are
designated as small carriers.

TABLE 1.—NUMBER OF SMALL CARRIERS
Number of small
carriers

Carriers
Total Number of Carriers for List of Materials Covered ..................................................................................
Number of Interstate Carriers ..........................................................................................................................
Number of Intrastate Carriers ..........................................................................................................................

In addition to small carriers, other
small businesses and small entities
could potentially be affected by the
permitting system. Small businesses
that provide services to small carriers,
supply product for shipment, or receive
shipments also could be affected by the
rule. The customers and suppliers of
small carriers could be adversely
affected if a carrier were prohibited from
shipping certain HM because a permit
had been denied or revoked. Similarly,

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local government entities such as police
could be affected by the proposed HM
permitting requirements. The police
could be notified by TSA anytime a
planned communication was not
received from the driver of a permitted
HM vehicle. This probably would
require the expenditure of law
enforcement resources to investigate the
communication lapse. The number of
local police entities that would be
involved is difficult to estimate before

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2,436
1,664
772

Total carriers
3,131
2,139
992

the permit program is implemented. The
number of small businesses that
potentially could be affected by the new
permit rule is also difficult to estimate
without further research.
(4) Description of reporting,
recordkeeping, and other compliance
requirements. The compliance
requirements include an estimate of the
classes of small entities that will be
subject to the requirement and the type
of professional skills necessary for

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Federal Register / Vol. 69, No. 125 / Wednesday, June 30, 2004 / Rules and Regulations
preparation of the report or record. The
reporting, recordkeeping and other
compliance requirements of the final
rule are addressed in the following
discussion.
The initial application for the permit
will include the following elements:
1. Submitting a new MCS–150B form.
This form contains all fields on the
current MCS–150 form, which will need
to be updated, and additional fields
unique to the MCS–150B form.
2. Certifying that all HM incidents
have been reported to DOT.
3. Certifying the carriers have the
required security plan and training.
4. Certifying compliance with the
communication requirements.
5. Ensuring the carrier’s safety and
security records are adequate.
Carriers will need to devote some
effort to completing a permit
application. Each interstate carrier,
whether small or large, will have to
spend about six additional minutes
preparing the permit application (for the
fields that are not on the existing MCS–
150 form). This amounts to
approximately $2.10 of clerical labor.
For an intrastate carrier, the expenditure
is approximately $9.10, because the
carrier will not previously have been
required to complete the MCS–150B
form (26 minutes for the form). These
expenditures apply to the first year.
However, much of the effort in the
permit application will be performed by

FMCSA. FMCSA will check accident
reporting and safety facts by using the
MCMIS and Hazardous Materials
Information System (HMIS) databases.
FMCSA will also determine that the
application is complete and that safety
records are adequate.
If safety records are not adequate,
then an on-site Compliance Review (CR)
will be performed to determine if a
permit should be issued. This activity is
likely to result in additional paperwork
for carriers rated either Unsatisfactory or
Conditional, as these carriers will be
required to undergo a new CR. The
Benefit-Cost Analysis of Permitting
Options report estimates that each
carrier requiring a new CR will have to
spend at least $182 of clerical time for
completion of paperwork.
In addition to completing a permit
application, the applicable HM carriers
in the HM permit program will have to
do the following:
• Develop a ‘‘plan’’ to meet the HM
permit requirements that drivers be able
to easily contact the carrier and/or law
enforcement agencies in emergencies.
Document required communications
between the driver and dispatcher, and
maintain written communication
records. The cost per shipment was
estimated at about $1.75 each trip.
• Carriers in the HM permitting
program will be required to renew their
permit application biennially. This will
require about 6 minutes of clerical time

39363

for an interstate carrier and 16 minutes
of clerical time for an intrastate carrier.
The actual permit renewal will consist
of checking the necessary boxes on the
application for renewal.
In summary, the HM permitting rules
will create additional responsibilities
for small carriers. These responsibilities
will also produce additional labor costs.
However, FMCSA believes that the great
majority of small carriers will use
existing staff to handle the permit
program duties.
For this Regulatory Flexibility
Analysis, costs are cited for the small
carriers identified in Table 1. The cost
profile for small carriers should be
different from that for large carriers.
This is because large carriers have more
trucks, and consequently move a greater
volume of shipments. Data for fleet size
and number of miles traveled in the
Vehicle Inventory and Use Survey
(VIUS) were used to estimate the
proportion of shipment volume moved
by small carriers. In VIUS, carriers with
fleets of greater than 25 trucks
accounted for about 56 percent of the
mileage traveled. Based on assumptions
that the number of miles traveled
approximates shipment volume, and
that large carriers may make more longdistance trips than small carriers, the
cost analysis assigns 50 percent of all
trips to small carriers.
Table 2 summarizes the first-year and
annual costs for a small carrier.

TABLE 2.—COST SUMMARY PER SMALL CARRIER
Cost per carrier
for first year

Cost per carrier
for successive
years

$21/hour 1 2 .....................................
$21/hour .........................................

$1.05
9.10

N/A
N/A

$21/hour .........................................
$21/hour .........................................
$182/carrier 3 ..................................
$1.75/trip ........................................

N/A
N/A
182
1,129

1.05
2.80
N/A
1,129

........................................................

1,321

1,133

Permit-related activity

Unit cost

Permit application:
Interstate carrier ...............................................................................
Intrastate carrier ...............................................................................
Permit renewal:
Interstate carrier ...............................................................................
Intrastate carrier ...............................................................................
Safety record compliance .......................................................................
Communication recordkeeping requirements .........................................
Worst Case Total Cost per Small Carrier 4 ..............................
1 Unit

cost is assumed as clerical hourly pay of $15/hour plus fringe benefits (40%) for a total of $21/hour.
that one-half of interstate small carriers will require permit for the first year.
to all small carriers without a SafeStat rating.
4 Assumes an intrastate carrier that requires a compliance review.
2 Assumes
3 Applies

A small carrier could face two major
negative impacts. First, the carrier could
be prohibited from shipping certain HM
because a permit was denied or revoked.
Aside from the loss of contracts and
income, this action would likely force
the carrier to expend considerable effort
in addressing and correcting problem
areas and successfully completing the
permit application process. The second

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impact would be financial, related to
compliance with the HM permit
process. For all but the most marginal
small-carrier operations—that is, those
already suffering from poor cash flow
and a small profit margin—an initial
impact of about $1,300 or an annual
impact of about $1,100 would not be
significant. This added expenditure is
unlikely to prevent the overwhelming

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majority of small carriers from
participating in the HM trucking
business.
(5) Relevant Federal rules which may
duplicate, overlap, or conflict with the
final rule. Two statutory provisions, 49
U.S.C 5119 and 5105(e), could conflict
with the HM permit rule if the rule did
not specifically reference the provisions.

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Federal Register / Vol. 69, No. 125 / Wednesday, June 30, 2004 / Rules and Regulations

First, section 5119 authorizes States to
participate in the Alliance for Uniform
HM Transportation program (Alliance).
FMCSA intends to automatically issue a
Federal permit to a carrier that obtains
a permit from a State having a program
equivalent to the Federal permit
program. Therefore, a comparable State
program will be deemed equivalent to
the Federal HM Permit Program and no
statutory conflict will exist. However,
the motor carrier must still possess at
least a Satisfactory safety rating. If a
carrier’s rating is less than Satisfactory,
the permit may be suspended or
revoked until a Satisfactory rating is
achieved.
The second potential conflict is the
Point of Origin Inspections for Highway
Route-Controlled Quantities (HRCQ)
shipments required by 49 U.S.C.
5105(e). These inspections are currently
required to be conducted via the CVSA
Level VI Enhanced Radioactive
Materials Inspection Program, which
fulfills the requirements of 49 U.S.C.
5105(e). Today’s final rule explicitly
cites this requirement for HRCQ and
thus prevents any statutory conflict.
Conclusion
The final rule is not anticipated to
have any significant impact on the great
majority of small carriers transporting
HM covered by the proposed HM
permit. As discussed above, the
approximately 2,400 small carriers will
incur some additional costs to
implement the permitting program. A
small carrier transporting HM would
incur an annual cost of about $1,100 to
comply with the rule. This added
expenditure is unlikely to prevent the
overwhelming majority of small carriers
from participating in the HM trucking
business. For these small carriers, the
cost increase will not be reflected in
significantly lower carrier profits or
higher charges to suppliers, shippers, or
other customers.
Small businesses that work with the
small carriers would not ordinarily be
affected by the permit rules during the
course of normal business operations.
These small businesses would
experience a negative impact only if a
small carrier they dealt with were
seriously harmed by the permit program
and forced either to cut back its
business volume or cease operations
entirely. Since HM permit holders are

unlikely to experience consequences of
this nature if a required permit is
rejected or suspended, small businesses
that work with the carriers are also
unlikely to be affected.
Small governmental entities such as
local police departments may receive
some additional calls and may need to
prepare some reports if the permit
system’s communications requirements
mandate that a particular truck be traced
and/or investigated. These calls and
reports are not anticipated to
significantly affect the workload or
staffing of these local entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (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. FMCSA
analyzed this final rule and determined
that its implementation will increase the
existing information collection (IC)
burden on motor carriers, both interstate
and intrastate. The final rule adopts a
slightly expanded list of HM requiring
a permit, comprised of the statutory list
and additional explosive and toxic by
inhalation (TIH) materials in certain
quantities as appropriate. Specifically, a
permit will be required for:
1. Radioactive Materials—A highway
route-controlled quantity of Class 7
materials.
2. Explosives—More than 25 kg (55
pounds) of a Division 1.1, 1.2, or 1.3
material, or an amount of a Division 1.5
material requiring a placard under title
49 CFR, part 172, subpart F.
3. Toxic-by-Inhalation (Division 2.3
and 6.1) Materials—Hazard Zone A
materials in a packaging with a capacity
greater than 1 liter (0.26 gallons); a
shipment of Hazard Zone B materials in
a bulk packaging (capacity greater than
450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk
packaging having a capacity equal to or
greater than 13,248 L (3,500) gallons.
4. A shipment of compressed or
refrigerated liquid methane or natural
gas or other liquefied gas with a
methane content of at least 85 percent,
in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500
gallons) for liquids or gases.

The burden on industry was
determined for this option and is
described in detail in the Regulatory
Flexibility Analysis report.
Change to Current Collection
One currently approved information
collection is affected by this final rule:
OMB Control No. 2126–0013, titled
‘‘Motor Carrier Identification Report,’’
which is approved for 74,250 burden
hours. This final rule would increase
the IC burden hours for OMB Control
No. 2126–0013 by extending the data
collection to 992 intrastate motor
carriers (both small and large) that
transport the permitted hazardous
materials. FMCSA estimates that
interstate motor carriers that have
already completed MCS–150 forms will
require about 6 minutes to complete and
file an application for registration, and
that intrastate carriers that have not
completed MCS–150 forms will require
about 26 minutes (0.43 hours). Using
RSPA’s registration database to obtain
the number of affected intrastate
carriers, the burden hour increase for
this collection is 430 hours (992
intrastate carriers × 26 minutes/60
minutes per hour = 430 hours).
Thus, for existing OMB Control No.
2126–0013, the burden hours would be
increased to 74,680 (74,250 current +
430 additional), and the number of
respondents would increase to 549,992
(549,000 current + 992 additional).
The permitting program requires
carriers to maintain written records of
communication between drivers and
their carriers. This communication must
take place at least twice a day. The types
of information required include time
and location of communication. The
communication recordkeeping
requirements were assumed to take 5
minutes per trip of a clerk’s time at an
hourly pay of $15 (plus 40 percent for
fringe benefits). The total burden hours
were based on 1,570,391 estimated
annual trips for carriers. This annual
burden is 41.80 hours per carrier (5
minutes/60 minutes per hour ×
1,570,391/3,131 carriers).
The estimated IC burden hours are
summarized in Table 3 below. These
values reflect the additional burden that
the final rule will place on the affected
carriers and are derived from MCMIS
and RSPA data as mentioned above.

TABLE 3.—BURDEN CALCULATIONS
Carriers
Intrastate
Increased reporting under OMB Control No. 2126–0013 ...

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992

Fmt 4700

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Interstate

Burden hours
Per carrier 1

Total

N/A

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992

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0.43

Total
430

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Federal Register / Vol. 69, No. 125 / Wednesday, June 30, 2004 / Rules and Regulations
TABLE 3.—BURDEN CALCULATIONS—Continued
Carriers
Intrastate

Burden hours

Interstate

Per carrier 1

Total

Total

Maintaining communications records ..................................

992

2,139

3,131

41.80

130,866

Total ..............................................................................

........................

........................

........................

........................

131,296

1 Figures

are rounded to the nearest hundredth; unrounded numbers are used in calculations.

All carriers of hazardous materials
requiring a permit under this rule are
subject to RSPA’s registration
requirements and should already have a
valid registration number. The
certifications required under this rule
are simple affirmations that the
requirements have been met, without
the need for providing supporting
documentation. The affirmation is
included in the permit application form.
For purposes of calculating the
burden hours, RSPA registration data
were used for estimating the number of
HM carriers, both interstate and
intrastate, that transport the listed types
of HM under each permitting option.
The biennial permit renewal requires
carriers only to check off a few
additional boxes (relative to the existing
MCS–150 form) on the MCS–150B form.
The burden hours to check off the
additional boxes on the MCS–150B form
are small—about 6 minutes. Interstate

As shown in Table 3, the total
estimated first-year burden is 131,296
hours.
It is estimated that burden hours in
subsequent years would primarily be
the time to provide shipment estimates
and communication records, as also
indicated in Table 3.
New Information Collection Activity
This final rule will also establish a
new data collection for all motor
carriers that transport any of the
permitted hazardous materials. Three
provisions of the final rule would not
require any substantive increase in the
reporting burden:
1. To certify that all hazardous
materials incidents have been reported
to RSPA;
2. To certify that the communication
requirements of this rule have been met;
and
3. To certify that the security plan and
training requirements have been met.

carriers already must complete the
MCS–150 and will only incur an
additional 6-minute burden; however,
intrastate carriers have never completed
an MCS–150 and will need about 16
minutes (0.27 hours) to complete the
permit renewal.
The burden hours for the
communication records will be the same
for all years. The annual burden hour
estimate of 131,105 is shown in Table 4.
As only one-half of all carriers will be
required to renew their permit
application each year, the per-carrier
burden hours shown have been divided
by two to compute the annual average.
The annual burden hours are the sum of
the burden hours for permit renewals
([992 intrastate carriers × 16 minutes +
2,139 interstate carriers × 6 minutes]/60
minutes per hour × 1⁄2 of all carriers
each year = 239 hours) and
communication records.

TABLE 4.—ANNUAL BURDEN CALCULATIONS
Carriers

Burden hours
Per carrier 1

Intrastate

Interstate

Total
Intrastate

Interstate

Increased reporting under OMB Control No.
2126–xxxx ..........................................................
Maintaining communications records ....................

992
992

2,139
2,139

0.13
41.80

0.05
41.80

239
130,866

Total ................................................................

..........................

..........................

............................

............................

131,105

1 Figures

are rounded to the nearest hundredth; unrounded numbers are used in calculations.

The first-year and annual burden
hours are summarized together in Table
5.

TABLE 5.—SUMMARY OF BURDEN
HOURS
Burden hours
First-year
131,296 .................................

Annual
131,105

We estimate that the new total
information collection and
recordkeeping burden resulting from the
additional Motor Carrier Identification

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Reports and permit applications under
this rule are as follows:
Motor Carrier Identification Report
[OMB No. 2126–0013]
Total Annual Number of
Respondents: 549,992.
Total Annual Burden Hours: 74,680.
Hazardous Materials Permit
[OMB No. 2126–xxxx]
Total Annual Number of
Respondents: 3,131.
Total Annual Burden Hours: 130,866.
As noted above, the Paperwork
Reduction Act requires that Federal
agencies obtain approval from OMB for
each collection of information they

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conduct, sponsor or require through
regulations. We are coordinating this
final rule with a submission to OMB in
accordance with the Act. Thus,
comments on the additional Motor
Carrier Identification Reports,
specifically the MCS–150B, and permit
applications should go to the Office of
Management and Budget. Send
comments to: Office of Information and
Regulatory Affairs, Office of
Management and Budget, 725
Seventeenth Street, NW, Washington,
DC 20503, Attention: DOT Desk Officer.
We particularly request your comments
on whether the collection of information
is useful; the accuracy of the estimated

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Federal Register / Vol. 69, No. 125 / Wednesday, June 30, 2004 / Rules and Regulations

burden for the information collected;
ways to enhance the quality, utility, and
clarity of the information collected; and
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.

of CMVs, change how CMVs operate, or
change the CMV fleet-mix of motor
carriers. This action merely establishes
that a carrier desiring to transport
certain hazardous materials in
commerce must obtain a safety permit
from the Department and adhere to
additional communication standards.

National Environmental Policy Act
FMCSA analyzed this final rule for
the purpose of the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.) and has
determined under the agency’s National
Environmental Policy Act Implementing
Procedures, FMCSA Order 5610.1C
(published at 69 FR 9680 [Mar. 1, 2004]
with an effective date of March 30,
2004) that this action is categorically
excluded (CE) under Appendix 2,
paragraph 6.d of the Order from further
environmental documentation. That CE
relates to establishing regulations and
actions concerning the training,
qualifying, licensing, certifying, and
managing of personnel. The agency
believes that the action includes no
extraordinary circumstances that will
have any effect on the quality of the
environment.
Nevertheless, because the rulemaking
concerns hazardous materials
transportation, the agency prepared an
Environmental Assessment pursuant to
Appendices 5 and 6 of the Order, and
placed it in the public docket for this
rulemaking. You may access the EA on
the DMS Web site at http://dms.dot.gov.
We received no comments on the EA in
response to the August 19, 2003,
supplemental notice of proposed
rulemaking. Based on the findings of the
EA, FMCSA has determined that this
rulemaking does not pose any
significant negative impacts to the
environment and may result in a net
benefit from increased protection and
monitoring of hazardous materials
shipments. Thus, the action does not
require an environmental impact
statement.
We have also analyzed this rule under
section 176(c) of the Clean Air Act
(CAA), as amended (42 U.S.C. 7401 et
seq.), and implementing regulations
promulgated by the Environmental
Protection Agency. We performed a
conformity analysis of the CAA
according to the procedures outlined in
appendix 14 of FMCSA Order 5610.1C.
This rule will not result in any
emissions increase, nor will it have any
potential to result in emissions that are
above the general conformity rule’s de
minimis emission threshold levels.
Moreover, it is reasonably foreseeable
that the rule change will not increase
total CMV mileage, change the routing

Executive Order 12988 (Civil Justice
Reform)

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Jkt 203001

This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.
Executive Order 13132 (Federalism)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
13132, dated August 4, 1999.
Federal hazardous materials
transportation law allows States,
political subdivisions, and Indian tribes
to continue their permit requirements
after the implementation of a Federal
safety permit program. To the extent a
State permit program is equivalent to
the Federal requirements, no
preemption issues would arise. To the
extent there are differences between
Federal and non-Federal requirements,
the preemption provisions in 49 U.S.C.
5125 will continue to apply to nonFederal permit requirements, just as
those criteria have applied in the past.
FMCSA may preempt some State
permitting programs for materials
covered in this final rule. This
preemption is necessary to conform to
the statutory requirements, but it will
have a small overall effect on State
permit programs. For these reasons,
FMCSA has determined this rule does
not have a substantial direct effect on,
or sufficient federalism implications for,
the States, nor will it limit the
policymaking discretion of the States.
Executive Order 13045 (Protection of
Children)
FMCSA has analyzed this action
under Executive Order 13045,
‘‘Protection of Children from
Environmental Health Risks and Safety
Risks’’ (62 FR 1985, Apr. 23, 1997). The
rule will not present an environmental
risk to health or safety that may
disproportionately affect children.

Interference with Constitutionally
Protected Property Rights.
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 apply to this program.
Executive Order 13166 (Limited English
Proficiency)
Executive Order 13166, ‘‘Improving
Access to Services for Persons with
Limited English Proficiency’’ (LEP),
requires each Federal agency to examine
the services it provides and to develop
reasonable measures to ensure that
persons seeking government services
but limited in their English proficiency
can meaningfully access these services,
consistent with, and without unduly
burdening, the fundamental mission of
the agency. Its purpose is to clarify for
Federal fund recipients the steps those
recipients can take to avoid
administering programs in a way that
results in discrimination on the basis of
national origin. FMCSA believes that
this action complies with the principles
enunciated in the Executive Order.
List of Subjects
49 CFR Part 385
Administrative practice and
procedure, Highway safety,
Incorporation by reference, Mexico,
Motor carriers, Motor vehicle safety,
Reporting and recordkeeping
requirements.
49 CFR Part 386
Administrative practice and
procedure, Brokers, Freight forwarders,
Hazardous materials transportation,
Highway safety, Motor carriers, Motor
vehicle safety, Penalties.
49 CFR Part 390
Highway safety, Intermodal
transportation, Motor carriers, Motor
vehicle safety, reporting and
recordkeeping requirements.
■ Accordingly, FMCSA amends parts
385, 386, and 390 of title 49, Code of
Federal Regulations, as follows:
PART 385—SAFETY FITNESS
PROCEDURES

Executive Order 12630 (Taking of
Private Property)

■

This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and

Authority: 49 U.S.C. 113, 504, 521(b),
5105(e), 5109, 5113, 13901–13905, 31136,
31144, 31148, and 31502; Sec. 350 of Pub. L.
107–87; and 49 CFR 1.73.

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1. Revise the authority citation for part
385 to read as follows:

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(1) ‘‘North American Standard Out-ofService Criteria and Level VI Inspection
Procedures and Out-of-Service Criteria
for Commercial Highway Vehicles
Transporting Transuranics and Highway
§ 385.1 Purpose and scope.
Route Controlled Quantities of
*
*
*
*
*
Radioactive Materials as defined in 49
(c) This part establishes the safety
CFR Part 173.403,’’ January 1, 2004.
permit program for a motor carrier to
Information and copies may be obtained
transport the types and quantities of
from the Commercial Vehicle Safety
hazardous materials listed in § 385.403.
Alliance, 1101 17th Street, NW, Suite
803, Washington, DC 20036. Phone
*
*
*
*
*
number (202) 775–1623.
■ 3. Amend § 385.3 by revising the
(2) All of the materials incorporated
definition of the terms ‘‘applicable safety
by reference are available for inspection
regulations or requirements’’ and
‘‘commercial motor vehicle’’ and adding at: The Federal Motor Carrier Safety
Administration, Office of Enforcement
a new acronym ‘‘RSPA’’ in alphabetical
and Compliance, 400 Seventh Street,
order to read as follows:
SW, Washington, DC 20590; and the
§ 385.3 Definitions and acronyms.
National Archives and Records
Administration (NARA). For
Applicable safety regulations or
information on the availability of this
requirements means 49 CFR chapter III,
material at NARA, call (202) 741–6030,
subchapter B—Federal Motor Carrier
Safety Regulations or, if the carrier is an or go to: http://www.archives.gov/
federal_register/
intrastate motor carrier subject to the
code_of_federal_regulations/
hazardous materials safety permit
ibr_locations.html.
requirements in subpart E of this part,
■ 5. In § 385.5 revise the introductory
the equivalent State standards; and 49
text to read as follows:
CFR chapter I, subchapter C—
Hazardous Materials Regulations.
§ 385.5 Safety fitness standard.
*
*
*
*
*
The Satisfactory safety rating is based
Commercial motor vehicle shall have
on the degree of compliance with the
the same meaning as described in
safety fitness standard for motor
§ 390.5 of this subchapter, except that
carriers. For intrastate motor carriers
this definition will also apply to
subject to the hazardous materials safety
intrastate motor vehicles subject to the
permit requirements of subpart E of this
hazardous materials safety permit
part, the motor carrier must meet the
requirements of subpart E of this part.
equivalent State requirements. To meet
*
*
*
*
*
the safety fitness standard, the motor
RSPA means the Research and Special carrier must demonstrate it has adequate
Programs Administration.
safety management controls in place,
which function effectively to ensure
*
*
*
*
*
■ 4. Add a new § 385.4 to read as follows: acceptable compliance with applicable
safety requirements to reduce the risk
§ 385.4 Matter incorporated by reference.
associated with:
(a) Incorporation by reference. Part
*
*
*
*
*
385 includes references to certain matter ■ 6. Add a new subpart E to part 385 to
or materials, as listed in paragraph (b)
read as follows:
of this section. The text of the materials
Subpart E—Hazardous Materials Safety
is not included in the regulations
contained in part 385. The materials are Permits
hereby made a part of the regulations in Sec.
385.401 What is the purpose and scope of
part 385. The Director of the Federal
this subpart?
Register has approved the materials
385.402 What definitions are used in this
incorporated by reference in accordance
subpart?
with 5 U.S.C. 552(a) and 1 CFR part 51.
385.403 Who must hold a safety permit?
For materials subject to change, only the 385.405 How does a motor carrier apply for
specific version in the regulation is
a safety permit?
385.407 What conditions must a motor
incorporated. Material is incorporated
carrier satisfy for FMCSA to issue a
as it exists on the date of the approval
safety permit?
and a notice of any changes in these
385.409
When may a temporary safety
materials will be published in the
permit be issued to a motor carrier?
Federal Register.
385.411 Must a motor carrier obtain a safety
(b) Matter or materials referenced in
permit if it has a State permit?
part 385. The matter or materials in this 385.413 What happens if a motor carrier
paragraph are incorporated by reference
receives a proposed safety rating that is
in the corresponding sections noted.
less than Satisfactory?
2. Amend § 385.1 by redesignating
paragraph (c) as paragraph (d) and by
adding a new paragraph (c) to read as
follows:

■

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385.415 What operational requirements
apply to the transportation of a
hazardous material for which a permit is
required?
385.417 Is a motor carrier’s safety permit
number available to others?
385.419 How long is a safety permit
effective?
385.421 Under what circumstances will a
safety permit be subject to revocation or
suspension by FMCSA?
385.423 Does a motor carrier have a right to
an administrative review of a denial,
suspension, or revocation of a safety
permit?

Subpart E—Hazardous Materials
Safety Permits
§ 385.401 What is the purpose and scope
of this subpart?

(a) This subpart contains the
requirements for obtaining and
maintaining a safety permit to transport
certain hazardous materials. No one
may transport the materials listed in
§ 385.403 without a safety permit
required by this subpart.
(b) This subpart includes:
(1) Definitions of terms used in this
subpart;
(2) The list of hazardous materials
that require a safety permit if
transported in commerce;
(3) The requirements and procedures
a carrier must follow in order to be
issued a safety permit and maintain a
safety permit;
(4) The procedures for a motor carrier
to follow to initiate an administrative
review of a denial, suspension, or
revocation of a safety permit.
§ 385.402
subpart?

What definitions are used in this

(a) The definitions in parts 390 and
385 of this chapter apply to this subpart,
except where otherwise specifically
noted.
(b) As used in this part,
Hazardous material has the same
meaning as under § 171.8 of this title: A
substance or material that the Secretary
of Transportation has determined is
capable of posing an unreasonable risk
to health, safety, and property when
transported in commerce, and has
designated as hazardous under Sec.
5103 of Federal hazardous materials
transportation law (49 U.S.C. 5103). The
term includes hazardous substances,
hazardous wastes, marine pollutants,
elevated temperature materials,
materials designated as hazardous in the
Hazardous Materials Table (see
§ 172.101 of this title), and materials
that meet the defining criteria for hazard
classes and divisions in part 173 of this
title.
Hazmat employee has the same
meaning as under § 171.8 of this title: A

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person who is employed by a hazmat
employer as defined under § 171.8 of
this title, and who in the course of
employment directly affects hazardous
materials transportation safety. This
term includes an owner-operator of a
motor vehicle that transports hazardous
materials in commerce. This term
includes an individual who, during the
course of employment:
(1) Loads, unloads, or handles
hazardous materials;
(2) Manufactures, tests, reconditions,
repairs, modifies, marks, or otherwise
represents containers, drums, or
packaging as qualified for use in the
transportation of hazardous materials;
(3) Prepares hazardous materials for
transportation;
(4) Is responsible for the safe
transportation of hazardous materials; or
(5) Operates a vehicle used to
transport hazardous materials.
Liquefied natural gas (LNG) means a
Division 2.1 liquefied natural gas
material that is transported in a liquid
state with a methane content of 85
percent or more.
Safety permit means a document
issued by FMCSA that contains a permit
number and confers authority to
transport in commerce the hazardous
materials listed in § 385.403.
Shipment means the offering or
loading of hazardous materials at one
loading facility using one transport
vehicle, or the transport of that transport
vehicle.
§ 385.403

Who must hold a safety permit?

After the date following January 1,
2005, that a motor carrier is required to
file a Motor Carrier Identification Report
Form (MCS–150) according to the
schedule set forth in § 390.19(a) of this
chapter, the motor carrier may not
transport in interstate or intrastate
commerce any of the following
hazardous materials, in the quantity
indicated for each, unless the motor
carrier holds a safety permit:
(a) A highway route-controlled
quantity of a Class 7 (radioactive)
material, as defined in § 173.403 of this
title;
(b) More than 25 kg (55 pounds) of a
Division 1.1, 1.2, or 1.3 (explosive)
material or an amount of a Division 1.5
(explosive) material requiring
placarding under part 172 of this title;
(c) More than one liter (1.08 quarts)
per package of a ‘‘material poisonous by
inhalation,’’ as defined in § 171.8 of this
title, that meets the criteria for ‘‘hazard
zone A,’’ as specified in § 173.116(a) or
§ 173.133(a) of this title;
(d) A ‘‘material poisonous by
inhalation,’’ as defined in § 171.8 of this
title, that meets the criteria for ‘‘hazard

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zone B,’’ as specified in § 173.116(a) or
§ 173.133(a) of this title in a bulk
packaging (capacity greater than 450 L
[119 gallons]);
(e) A ‘‘material poisonous by
inhalation,’’ as defined in § 171.8 of this
title, that meets the criteria for ‘‘hazard
zone C,’’ or ‘‘hazard zone D,’’ as
specified in § 173.116(a) of this title, in
a packaging having a capacity equal to
or greater than 13,248 L (3,500) gallons;
or
(f) A shipment of compressed or
refrigerated liquefied methane or
liquefied natural gas, or other liquefied
gas with a methane content of at least
85 percent, in a bulk packaging having
a capacity equal to or greater than
13,248 L (3,500 gallons).
§ 385.405 How does a motor carrier apply
for a safety permit?

(a) Application form(s). To apply for
a new safety permit or renewal of the
safety permit, a motor carrier must
complete and submit Form MCS–150B,
Combined Motor Carrier Identification
Report and HM Permit Application.
(1) The Form MCS–150B will also
satisfy the requirements for obtaining
and renewing a DOT identification
number; there is no need to complete
Form MCS–150, Motor Carrier
Identification Report.
(2) A new entrant, as defined in
§ 385.3, must also submit Form MCS–
150A, Safety Certification for
Application (Safety Certification for
Application for USDOT Number) (see
subpart D of this part).
(b) Where to get forms and
instructions. The forms listed in
paragraph (a) of this section, and
instructions for completing the forms,
may be obtained on the Internet at
http://www.fmcsa.dot.gov, or by
contacting FMCSA at Federal Motor
Carrier Safety Administration, MC–RIS,
Room 8214, 400 7th Street, SW,
Washington, DC 20590, Telephone: 1–
800–832–5660.
(c) Signature and certification. An
official of the motor carrier must sign
and certify that the information is
correct on each form the motor carrier
submits.
(d) Updating information on Form
MCS–150B. A motor carrier holding a
safety permit must report to FMCSA any
change in the information on its Form
MCS–150B within 30 days of the
change. The motor carrier must use
Form MCS–150B to report the new
information (contact information in
paragraph (b) of this section).

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§ 385.407 What conditions must a motor
carrier satisfy for FMCSA to issue a safety
permit?

(a) Motor carrier safety performance.
(1) The motor carrier must have a
‘‘Satisfactory’’ safety rating assigned by
either FMCSA, pursuant to the Safety
Fitness Procedures of this part, or the
State in which the motor carrier has its
principal place of business, if the State
has adopted and implemented safety
fitness procedures that are equivalent to
the procedures in subpart A of this part;
and,
(2) FMCSA will not issue a safety
permit to a motor carrier that:
(i) Does not certify that it has a
satisfactory security program as required
in § 385.407(b);
(ii) Has a crash rate in the top 30
percent of the national average as
indicated in the FMCSA Motor Carrier
Management Information System
(MCMIS); or
(iii) Has a driver, vehicle, hazardous
materials, or total out-of-service rate in
the top 30 percent of the national
average as indicated in the MCMIS.
(b) Satisfactory security program. The
motor carrier must certify that it has a
satisfactory security program, including:
(1) A security plan meeting the
requirements of part 172, subpart I of
this title, and addressing how the carrier
will ensure the security of the written
route plan required by this part;
(2) A communications plan that
allows for contact between the
commercial motor vehicle operator and
the motor carrier to meet the periodic
contact requirements in § 385.415(c)(1);
and
(3) Successful completion by all
hazmat employees of the security
training required in § 172.704(a)(4) and
(a)(5) of this title.
(c) Registration with the Research and
Special Programs Administration
(RSPA). The motor carrier must be
registered with RSPA in accordance
with part 107, subpart G of this title.
§ 385.409 When may a temporary safety
permit be issued to a motor carrier?

(a) Temporary safety permit. If a
motor carrier does not meet the criteria
in § 385.407(a), FMCSA may issue it a
temporary safety permit. To obtain a
temporary safety permit a motor carrier
must certify on Form MCS–150B that it
is operating in full compliance with the
HMRs; with the FMCSRs, and/or
comparable State regulations, whichever
is applicable; and with the minimum
financial responsibility requirements in
part 387 of this chapter or in State
regulations, whichever is applicable.
(b) FMCSA will not issue a temporary
safety permit to a motor carrier that:

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(1) Does not certify that it has a
satisfactory security program as required
in § 385.407(b);
(2) Has a crash rate in the top 30
percent of the national average as
indicated in the FMCSA’s MCMIS; or
(3) Has a driver, vehicle, hazardous
materials, or total out-of-service rate in
the top 30 percent of the national
average as indicated in the MCMIS.
(c) A temporary safety permit shall be
valid for 180 days after the date of
issuance or until the motor carrier is
assigned a new safety rating, whichever
occurs first.
(1) A motor carrier that receives a
Satisfactory safety rating will be issued
a safety permit (see § 385.421).
(2) A motor carrier that receives a less
than Satisfactory safety rating is
ineligible for a safety permit and will be
subject to revocation of its temporary
safety permit.
(d) If a motor carrier has not received
a safety rating within the 180-day time
period, FMCSA will extend the effective
date of the temporary safety permit for
an additional 60 days, provided the
motor carrier demonstrates that it is
continuing to operate in full compliance
with the FMCSRs and HMRs.
§ 385.411 Must a motor carrier obtain a
safety permit if it has a State permit?

Yes. However, if FMCSA is able to
verify that a motor carrier has a safety
permit issued by a State under a
program that FMCSA has determined to
be equivalent to the provisions of this
subpart, FMCSA will immediately issue
a safety permit to the motor carrier upon
receipt of an application in accordance
with § 385.405, without further
inspection or investigation.
§ 385.413 What happens if a motor carrier
receives a proposed safety rating that is
less than Satisfactory?

(a) If a motor carrier does not already
have a safety permit, it will not be
issued a safety permit (including a
temporary safety permit) unless and
until a Satisfactory safety rating is
issued to the motor carrier.
(b) If a motor carrier holds a safety
permit (including a temporary safety
permit), the safety permit will be subject
to revocation or suspension (see
§ 385.421).
§ 385.415 What operational requirements
apply to the transportation of a hazardous
material for which a permit is required?

(a) Information that must be carried in
the vehicle. During transportation, the
following must be maintained in each
commercial motor vehicle that
transports a hazardous material listed in
§ 385.403 and must be made available to
an authorized official of a Federal, State,

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or local government agency upon
request.
(1) A copy of the safety permit or
another document showing the permit
number, provided that document clearly
indicates the number is the FMCSA
Safety Permit number;
(2) A written route plan that meets the
requirements of § 397.101 of this
chapter for highway route-controlled
Class 7 (radioactive) materials or
§ 397.67 of this chapter for Division 1.1,
1.2, and 1.3 (explosive) materials; and
(3) The telephone number, including
area code or country code, of an
employee of the motor carrier or
representative of the motor carrier who
is familiar with the routing of the
permitted material. The motor carrier
employee or representative must be able
to verify that the shipment is within the
general area for the expected route for
the permitted material. The telephone
number, when called, must be answered
directly by the motor carrier or its
representative at all times while the
permitted material is in transportation
including storage incidental to
transportation. Answering machines are
not sufficient to meet this requirement.
(b)(1) Inspection of vehicle
transporting Class 7 (radioactive)
materials. Before a motor carrier may
transport a highway route controlled
quantity of a Class 7 (radioactive)
material, the motor carrier must have a
pre-trip inspection performed on each
motor vehicle to be used to transport a
highway route controlled quantity of a
Class 7 (radioactive) material, in
accordance with the requirements of the
‘‘North American Standard Out-ofService Criteria and Level VI Inspection
Procedures and Out-of-Service Criteria
for Commercial Highway Vehicles
Transporting Transuranics and Highway
Route Controlled Quantities of
Radioactive Materials as defined in 49
CFR Part 173.403,’’ January 1, 2004,
which is incorporated by reference. The
Director of the Federal Register has
approved the materials incorporated by
reference in accordance with 5 U.S.C.
552(a) and 1 CFR part 51. Information
and copies may be obtained from the
Commercial Vehicle Safety Alliance,
1101 17th Street, NW, Suite 803,
Washington, DC 20036. Phone number
(202) 775–1623.
(2) All materials incorporated by
reference are available for inspection at
the Federal Motor Carrier Safety
Administration, Office of Enforcement
and Compliance, 400 Seventh Street,
SW., Washington, DC 20590; and the
National Archives and Records
Administration (NARA). For
information on the availability of this
material at NARA, call (202) 741–6030,

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39369

or go to: http://www.archives.gov/
federal_register/
code_of_federal_regulations/
ibr_locations.html.
(c) Additional requirements. A motor
carrier transporting hazardous materials
requiring a permit under this part must
also meet the following requirements:
(1) The operator of a motor vehicle
used to transport a hazardous material
listed in § 385.403 must follow the
communications plan required in
§ 385.407(b)(2) to make contact with the
carrier at the beginning and end of each
duty tour, and at the pickup and
delivery of each permitted load. Contact
may be by telephone, radio or via an
electronic tracking or monitoring
system. The motor carrier or driver must
maintain a record of communications
for 6 months after the initial acceptance
of a shipment of hazardous material for
which a safety permit is required. The
record of communications must contain
the name of the driver, identification of
the vehicle, permitted material(s) being
transported, and the date, location, and
time of each contact required under this
section.
(2) The motor carrier should contact
the Transportation Security
Administration’s Transportation
Security Coordination Center (703–563–
3236 or 703–563–3237) at any time the
motor carrier suspects its shipment of a
hazardous material listed in § 385.403 is
lost, stolen or otherwise unaccounted
for.
§ 385.417 Is a motor carrier’s safety permit
number available to others?

Upon request, a motor carrier must
provide the number of its safety permit
to a person who offers a hazardous
material listed in § 385.403 for
transportation in commerce. A motor
carrier’s permit number will also be
available to the public on the FMCSA
Safety and Fitness Electronic Records
System at http://www.safersys.org.
§ 385.419 How long is a safety permit
effective?

Unless suspended or revoked, a safety
permit (other than a temporary safety
permit) is effective for two years, except
that:
(a) A safety permit will be subject to
revocation if a motor carrier fails to
submit a renewal application (Form
MCS–150B) in accordance with the
schedule set forth for filing Form MCS–
150 in § 390.19(a) of this chapter; and
(b) An existing safety permit will
remain in effect pending FMCSA’s
processing of an application for renewal
if a motor carrier submits the required
application (Form MS–150B) in
accordance with the schedule set forth

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in § 390.19(a)(2) and (a)(3) of this
chapter.
§ 385.421 Under what circumstances will a
safety permit be subject to revocation or
suspension by FMCSA?

(a) Grounds. A safety permit will be
subject to revocation or suspension by
FMCSA for the following reasons:
(1) A motor carrier fails to submit a
renewal application (Form MCS–150B)
in accordance with the schedule set
forth in § 390.19(a)(2) and (a)(3) of this
chapter;
(2) A motor carrier provides any false
or misleading information on its
application (Form MCS–150B), on Form
MCS–150A (when required), or as part
of updated information it is providing
on Form MCS–150B (see § 385.405(d));
(3) A motor carrier is issued a final
safety rating that is less than
Satisfactory;
(4) A motor carrier fails to maintain a
satisfactory security plan as set forth in
§ 385.407(b);
(5) A motor carrier fails to comply
with applicable requirements in the
FMCSRs, the HMRs, or compatible State
requirements governing the
transportation of hazardous materials, in
a manner showing that the motor carrier
is not fit to transport the hazardous
materials listed in § 385.403;
(6) A motor carrier fails to comply
with an out-of-service order;
(7) A motor carrier fails to comply
with any other order issued under the
FMCSRs, the HMRs, or compatible State
requirements governing the
transportation of hazardous materials, in
a manner showing that the motor carrier
is not fit to transport the hazardous
materials listed in § 385.403;
(8) A motor carrier fails to maintain
the minimum financial responsibility
required by § 387.9 of this chapter or an
applicable State requirement;
(9) A motor carrier fails to maintain
current hazardous materials registration
with the Research and Special Programs
Administration; or
(10) A motor carrier loses its operating
rights or has its registration suspended
in accordance with § 386.83 or § 386.84
of this chapter for failure to pay a civil
penalty or abide by a payment plan.
(b) Determining whether a safety
permit is revoked or suspended. A
motor carrier’s safety permit will be
suspended the first time any of the
conditions specified in paragraph (a) of
this section are found to apply to the
motor carrier. A motor carrier’s safety
permit will be revoked if any of the
conditions specified in paragraph (a) of
this section are found to apply to the
motor carrier and the carrier’s safety
permit has been suspended in the past

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for any of the reasons specified in
paragraph (a) of this section.
(c) Effective date of suspension or
revocation. A suspension or revocation
of a safety permit is effective:
(1) Immediately after FMCSA
determines that an imminent hazard
exists, after FMCSA issues a final safety
rating that is less than Satisfactory, or
after a motor carrier loses its operating
rights or has its registration suspended
for failure to pay a civil penalty or abide
by a payment plan;
(2) Thirty (30) days after service of a
written notification that FMCSA
proposes to suspend or revoke a safety
permit, if the motor carrier does not
submit a written request for
administrative review within that time
period; or
(3) As specified in § 385.423(c), when
the motor carrier submits a written
request for administrative review of
FMCSA’s proposal to suspend or revoke
a safety permit.
(4) A motor carrier whose safety
permit has been revoked will not be
issued a replacement safety permit or
temporary safety permit for 365 days
from the time of revocation.
§ 385.423 Does a motor carrier have a right
to an administrative review of a denial,
suspension, or revocation of a safety
permit?

A motor carrier has a right to an
administrative review pursuant to the
following procedures and conditions:
(a) Less than Satisfactory safety
rating. If a motor carrier is issued a
proposed safety rating that is less than
Satisfactory, it has the right to request
(1) an administrative review of a
proposed safety rating, as set forth in
§ 385.15, and (2) a change to a proposed
safety rating based on corrective action,
as set forth in § 385.17. After a motor
carrier has had an opportunity for
administrative review of, or change to,
a proposed safety rating, FMCSA’s
issuance of a final safety rating
constitutes final agency action, and a
motor carrier has no right to further
administrative review of FMCSA’s
denial, suspension, or revocation of a
safety permit when the motor carrier has
been issued a final safety rating that is
less than Satisfactory.
(b) Failure to pay civil penalty or
abide by payment plan. If a motor
carrier is notified that failure to pay a
civil penalty will result in suspension or
termination of its operating rights, it has
the right to an administrative review of
that proposed action in a show cause
proceeding, as set forth in § 386.83(b) or
§ 386.84(b) of this chapter. The decision
by FMCSA’s Chief Safety Officer in the
show cause proceeding constitutes final

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agency action, and a motor carrier has
no right to further administrative review
of FMCSA’s denial, suspension, or
revocation of a safety permit when the
motor carrier has lost its operating rights
or had its registration suspended for
failure to pay a civil penalty or abide by
a payment plan.
(c) Other grounds. Under
circumstances other than those set forth
in paragraphs (a) and (b) of this section,
a motor carrier may submit a written
request for administrative review within
30 days after service of a written
notification that FMCSA has denied a
safety permit, that FMCSA has
immediately suspended or revoked a
safety permit, or that FMCSA has
proposed to suspend or revoke a safety
permit. The rules for computing time
limits for service and requests for
extension of time in §§ 386.31 and
386.33 of this chapter apply to the
proceedings on a request for
administrative review under this
section.
(1) The motor carrier must send or
deliver its written request for
administrative review to FMCSA Chief
Safety Officer, with a copy to FMCSA
Chief Counsel, at the following
addresses:
(i) FMCSA Chief Safety Officer,
Federal Motor Carrier Safety
Administration, c/o Adjudications
Counsel (MC–CC), 400 Seventh Street,
SW., Washington, DC 20590.
(ii) FMCSA Chief Counsel, Federal
Motor Carrier Safety Administration,
Office of the Chief Counsel, Room 8125,
400 Seventh Street, SW., Washington,
DC 20590.
(2) A request for administrative
review must state the specific grounds
for review and include all information,
evidence, and arguments upon which
the motor carrier relies to support its
request for administrative review.
(3) Within 30 days after service of a
written request for administrative
review, the Office of the Chief Counsel
shall submit to the Chief Safety Officer
a written response to the request for
administrative review. The Office of the
Chief Counsel must serve a copy of its
written response on the motor carrier
requesting administrative review.
(4) The Chief Safety Officer may
decide a motor carrier’s request for
administrative review on the written
submissions, hold a hearing personally,
or refer the request to an administrative
law judge for a hearing and
recommended decision. The Chief
Safety Officer or administrative law
judge is authorized to specify, and must
notify the parties of, specific procedural
rules to be followed in the proceeding
(which may include the procedural

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Federal Register / Vol. 69, No. 125 / Wednesday, June 30, 2004 / Rules and Regulations
rules in part 386 of this chapter that are
considered appropriate).
(5) If a request for administrative
review is referred to an administrative
law judge, the recommended decision of
the administrative law judge becomes
the final decision of the Chief Safety
Officer 45 days after service of the
recommended decision is served, unless
either the motor carrier or the Office of
the Chief Counsel submits a petition for
review to the Chief Safety Officer (and
serves a copy of its petition on the other
party) within 15 days after service of the
recommended decision. In response to a
petition for review of a recommended
decision of an administrative law judge:
(i) The other party may submit a
written reply within 15 days of service
of the petition for review.
(ii) The Chief Safety Officer may
adopt, modify, or set aside the
recommended decision of an
administrative law judge, and may also
remand the petition for review to the
administrative law judge for further
proceedings.
(6) The Chief Safety Officer will issue
a final decision on any request for
administrative review when:
(i) The request for administrative
review has not been referred to an
administrative law judge;
(ii) A petition for review of a
recommended decision by an
administrative law judge has not been
remanded to the administrative law
judge for further proceedings; or
(iii) An administrative law judge has
held further proceedings on a petition
for review and issued a supplementary
recommended decision.
(7) The decision of the Chief Safety
Officer (including a recommended
decision of an administrative law judge
that becomes the decision of the Chief
Safety Officer under paragraph (c)(5) of
this section) constitutes final agency
action, and there is no right to further
administrative reconsideration or
review.
(8) Any appeal of a final agency action
under this section must be taken to an
appropriate United States Court of
Appeals. Unless the Court of Appeals
issues a stay pending appeal, the final
agency action shall not be suspended
while the appeal is pending.
Appendix B to Part 385—Explanation
of Safety Rating Process
7. Amend Appendix B to part 385 by
adding, to the introductory text before
Paragraph I, a new paragraph (e) to read
as follows:
*
*
*
*
*

■

(e) The hazardous materials safety permit
requirements of part 385, subpart E apply to
intrastate motor carriers. Intrastate motor

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carriers that are subject to the hazardous
materials safety permit requirements in
subpart E will be rated using equivalent State
requirements whenever the FMCSRs are
referenced in this appendix.

*

*
*
*
*
8. Amend Appendix B to part 385 by
adding to the List of Acute and Critical
Regulations under Paragraph VII the
following information in numerical
order after § 397.67(d):
*
*
*
*
*

■

VII. List of Acute and Critical Regulations

*

*

*

*

*

§ 397.101(d) Requiring or permitting the
operation of a motor vehicle containing
highway route-controlled quantity, as
defined in § 173.403, of radioactive materials
that is not accompanied by a written route
plan.

39371

(radioactive) material when the temperature
of the accessible external surface of the
loaded package exceeds 50 °C (122 °F) in
other than an exclusive use shipment, or 85
°C (185 °F) in an exclusive use shipment
(acute).
§ 173.443(a) Accepting for transportation
or transporting a package containing Class 7
(radioactive) material with removable
contamination on the external surfaces of the
package in excess of permissible limits
(acute).

*

*

*

*

*

10. Amend Appendix B to part 385 by
adding to the List of Acute and Critical
Regulations under Paragraph VII the
following information in numerical
order after § 177.800(c):
*
*
*
*
*

■

*

VII. List of Acute and Critical Regulations

■

*

*
*
*
*
9. Amend Appendix B to part 385 by
adding to the List of Acute and Critical
Regulations under Paragraph VII the
following information in numerical
order after § 171.16:
*
*
*
*
*

VII. List of Acute and Critical Regulations

*

*

*

*

*

§ 172.313(a) Accepting for transportation
or transporting a package containing a
poisonous-by-inhalation material that is not
marked with the words ‘‘Inhalation Hazard’’
(acute).
§ 172.704(a)(4) Failing to provide security
awareness training (critical).
§ 172.704(a)(5) Failing to provide indepth security awareness training (critical).
§ 172.800(b) Transporting HM without a
security plan (acute).
§ 172.800(b) Transporting HM without a
security plan that conforms to Subpart I
requirements (acute).
§ 172.800(b) Failure to adhere to a
required security plan (acute).
§ 172.802(b) Failure to make copies of
security plan available to hazmat employees
(critical).
§ 173.24(b)(1) Accepting for
transportation or transporting a package that
has an identifiable release of a hazardous
material to the environment (acute).
§ 173.421(a) Accepting for transportation
or transporting a Class 7 (radioactive)
material described, marked, and packaged as
a limited quantity when the radiation level
on the surface of the package exceeds
0.005mSv/hour (0.5 mrem/hour) (acute).
§ 173.431(a) Accepting for transportation
or transporting in a Type A packaging a
greater quantity of Class 7 (radioactive)
material than authorized (acute).
§ 173.431(b) Accepting for transportation
or transporting in a Type B packaging a
greater quantity of Class 7 (radioactive)
material than authorized (acute).
§ 173.441(a) Accepting for transportation
or transporting a package containing Class 7
(radioactive) material with external radiation
exceeding allowable limits (acute).
§ 173.442(b) Accepting for transportation
or transporting a package containing Class 7

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*

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*

§ 177.801 Accepting for transportation or
transporting a forbidden material (acute).
§ 177.835(a) Loading or unloading a Class
1 (explosive) material with the engine
running (acute).
§ 177.835(c) Accepting for transportation
or transporting Division 1.1, 1.2, or 1.3
(explosive) materials in a motor vehicle or
combination of vehicles that is not permitted
(acute).
§ 177.835(j) Transferring Division 1.1, 1.2,
or 1.3 (explosive) materials between
containers or motor vehicles when not
permitted (acute).

*

*

*

*

*

PART 386—RULES OF PRACTICE FOR
MOTOR CARRIER, BROKER, FREIGHT
FORWARDER, AND HAZARDOUS
MATERIALS PROCEEDINGS
11. The authority citation for part 386
continues to read as follows:

■

Authority: 49 U.S.C. 13301, 13902, 31132–
31133, 31136, 31502, 31504; sec. 204, Pub. L.
104–88, 109 Stat. 803, 941 (49 U.S.C. 701
note); sec. 217, Pub. L. 105–159, 113 stat.
1748, 1767; and 49 CFR 1.73.

Appendix B to Part 386—Penalty
Schedule; Violations and Maximum
Monetary Penalties
12. Amend Appendix B to part 386 by
revising the introductory text to
paragraph (e) to read as follows:
*
*
*
*
*

■

(e) Violations of the Hazardous Materials
Regulations (HMRs) and Safety Permitting
Regulations found in subpart E of Part 385.
This paragraph applies to violations by motor
carriers, drivers, shippers and other persons
who transport hazardous materials on the
highway in commercial motor vehicles or
cause hazardous materials to be so
transported.

*

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Federal Register / Vol. 69, No. 125 / Wednesday, June 30, 2004 / Rules and Regulations

PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL
13. The authority citation for part 390
continues to read as follows:

■

Authority: 49 U.S.C. 13301, 13902, 31131,
31133, 31502, and 31504, Pub. L. 104–88,
109 Stat. 803, 941 (49 U.S.C. 701 note); and
49 CFR 1.73.

14. Amend § 390.3 by adding a new
paragraph (g) to read as follows:

■

§ 390.3

General applicability.

*

*
*
*
*
(g) Motor carriers that transport
hazardous materials in intrastate
commerce. The rules in the following
provisions of subchapter B of this
chapter apply to motor carriers that
transport hazardous materials in
intrastate commerce and to the motor
vehicles that transport hazardous
materials in intrastate commerce:
(1) Part 385, subparts A and E, for
carriers subject to the requirements of
§ 385.403 of this chapter.
(2) Part 386, Rules of practice for
motor carrier, broker, freight forwarder,
and hazardous materials proceedings, of
this chapter.
(3) Part 387, Minimum Levels of
Financial Responsibility for Motor
Carriers, to the extent provided in
§ 387.3 of this chapter.
(4) Section 390.19, Motor carrier
identification report, and § 390.21,
Marking of CMVs, for carriers subject to
the requirements of § 385.403 of this
chapter. Intrastate motor carriers

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operating prior to January 1, 2005, are
excepted from § 390.19(a)(1).
*
*
*
*
*
■ 15. Amend § 390.19 by revising
paragraphs (a) introductory text, (b), (c)
introductory text, (c)(2), (d), (e), and (f)
to read as follows:
§ 390.19

Motor carrier identification report.

(a) Each motor carrier that conducts
operations in interstate commerce (or
intrastate commerce if the carrier
requires a Safety Permit as per § 385.400
of this chapter) must file a Motor Carrier
Identification Report, Form MCS–150,
or the Combined Motor Carrier
Identification Report and HM Permit
Application, Form MCS–150B for
permitted carriers, at the following
times:
*
*
*
*
*
(b) The Motor Carrier Identification
Report, Form MCS–150, and the
Combined Motor Carrier Identification
Report and HM Permit Application,
Form MCS–150B, with complete
instructions, are available from the
FMCSA Web site at: http://
www.fmcsa.dot.gov (Keyword ‘‘MCS–
150’’ or ‘‘MCS–150B’’); from all FMCSA
Service Centers and Division offices
nationwide; or by calling 1–800–832–
5660.
(c) The completed Motor Carrier
Identification Report, Form MCS–150,
or Combined Motor Carrier
Identification Report and HM Permit
Application, Form MCS–150B, must be
filed with FMCSA Office of Information
Management.
(1) * * *

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(2) A for-hire motor carrier should
submit the Form MCS–150, or Form
MCS–150B, along with its application
for operating authority (Form OP–1 or
OP–2), to the appropriate address
referenced on that form, or may submit
it electronically or by mail separately to
the address mentioned in this section.
(d) Only the legal name or a single
trade name of the motor carrier may be
used on the motor carrier identification
report (Form MCS–150 or MCS–150B).
(e) A motor carrier that fails to file a
Motor Carrier Identification Report,
Form MCS–150, or the Combined Motor
Carrier Identification Report and HM
Permit Application, Form MCS–150B,
or furnishes misleading information or
makes false statements upon Form
MCS–150 or Form MCS–150B, is subject
to the penalties prescribed in 49 U.S.C.
521(b)(2)(B).
(f) Upon receipt and processing of the
Motor Carrier Identification Report,
Form MCS–150, or the Combined Motor
Carrier Identification Report and HM
Permit Application, Form MCS–150B,
the FMCSA will issue the motor carrier
an identification number (USDOT
Number). The motor carrier must
display the number on each selfpropelled CMV, as defined in § 390.5,
along with the additional information
required by § 390.21.
*
*
*
*
*
Issued on: June 22, 2004.
Annette M. Sandberg,
Administrator.
[FR Doc. 04–14654 Filed 6–29–04; 8:45 am]
BILLING CODE 4910–EX–P

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