Federal Motor carrier Safety Regulations: Hazardous Materials Safety Permits, SNPRM

Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules
Service; and Ken Thompson, USDAForest Service provided additional
guidance.
List of Subjects
36 CFR Part 242
Administrative practice and
procedure, Alaska, Fish, National
forests, Public lands, Reporting and
recordkeeping requirements, Wildlife.
50 CFR Part 100
Administrative practice and
procedure, Alaska, Fish, National
forests, Public lands, Reporting and
recordkeeping requirements, Wildlife.
For the reasons set out in the
preamble, the Federal Subsistence
Board proposes to amend 36 CFR 242
and 50 CFR 100 for the 2004–05
regulatory year. The text of the
amendments would be the same as the
final rule for the 2003–04 regulatory
year published in the Federal Register
of 68 FR 38464, June 27, 2003.
Dated: July 28, 2003.
Peggy Fox,
Acting Chair, Federal Subsistence Board.
Dated: July 23, 2003.
Steve Kessler,
Subsistence Program Manager, USDA-Forest
Service.
[FR Doc. 03–21121 Filed 8–18–03; 8:45 am]
BILLING CODE 3410–11–P; 4310–55–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 385, 390, and 397
[Docket No. FMCSA–97–2180; formerly
FHWA–97–2180]
RIN 2126–AA07

Federal Motor Carrier Safety
Regulations: Hazardous Materials
Safety Permits
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Supplemental Notice of
Proposed Rulemaking (SNPRM).
SUMMARY: The FMCSA proposes to
establish a safety permit program for
motor carriers that transport any of the
following hazardous materials in
interstate or intrastate commerce: a
highway route-controlled quantity of a
Class 7 (radioactive) material; more than
25 kg (55 pounds) of a Division 1.1, 1.2,
or 1.3 (explosive) material; more than
one liter (1.08 quarts) per package of a
material in Division 2.3, Packing Group
I, Hazard Zone A, or Division 6.1,

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Packing Group I, Hazard Zone A; and a
shipment of compressed or refrigerated
liquid methane or natural gas in a
packaging having a capacity equal to or
greater than 13,248 L (3,500 gallons) for
liquids or gases. As part of this safety
permit program, FMCSA proposes to
consider additional ‘‘acute’’ and
‘‘critical’’ regulations relevant to its
determination of a carrier’s safety fitness
rating and, accordingly, the issuance of
a safety permit.
This rulemaking would implement
requirements in Federal hazardous
material transportation law that DOT
must establish a safety permit program
and a motor carrier must hold a safety
permit in order to transport certain
hazardous materials in commerce. This
rulemaking would also carry out a
statutory provision to issue regulations
requiring a pre-trip inspection and
certification of a motor vehicle used to
transport a highway route controlled
quantity of a Class 7 (radioactive)
material.
This rulemaking would also announce
the agency’s decision to not prescribe a
uniform permitting system for intrastate
transportation of hazardous materials, as
proposed in the 1993 notice of proposed
rulemaking to this action. Specifically,
FMCSA would not require States that
issue permits for the intrastate
transportation of hazardous materials to
use uniform forms and procedures, or to
require each State to register all persons
who transport hazardous materials—or
cause hazardous materials to be
transported—intrastate by motor
vehicle. FMCSA believes that it is not
possible to devise a uniform system that
would satisfactorily anticipate, address
and resolve the myriad of permitting
challenges and concerns that are unique
to individual States.
This proposed rule, if promulgated,
will promote the safe and secure
transportation of the designated
hazardous materials and enhance motor
carrier safety.
DATES: Comments must be received on
or before October 20, 2003.
ADDRESSES: You can mail, fax, hand
deliver or electronically submit written
comments to the Dockets Management
Facility, United States Department of
Transportation, Dockets Management
Facility, Room PL–401, 400 Seventh
Street, SW., Washington, DC 20590–
0001, FAX (202) 493–2251, on-line at
http://dmses.dot.gov/submit. You must
include the docket number that appears
in the heading of this document in your
comments. You can examine and copy
all comments at the above address from
9 a.m. to 5 p.m., e.t., Monday through
Friday, except Federal holidays. You

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can also view all comments or
download an electronic copy of this
document from the DOT Docket
Management System (DMS) at http://
dms.dot.gov/search.htm by typing the
last four digits of the docket number
appearing in the heading of this
document. The DMS is available 24
hours each day, 365 days each year. You
can get electronic submission and
retrieval help and guidelines under the
‘‘help’’ section of the Web site. If you
want us to notify you that we received
your comments, please include a selfaddressed, stamped envelope or
postcard or print the acknowledgement
page that appears after submitting
comments on-line.
Comments received after the closing
date will be included in the docket, and
FMCSA will consider late-filed
comments to the extent practicable.
Anyone is able to search the electronic
form of all comments received into any
of our dockets by the name of the
individual submitting the comment (or
signing the comment, if submitted on
behalf of an association, business, labor
union, etc.). You may review DOT’s
complete Privacy Act Statement in the
Federal Register published on April 11,
2000 (Volume 65, Number 70; pages
19477–78) or you may visit http://
dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mr.
James Simmons, (202) 493–0496,
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:

Statutory Background
Federal hazardous material
transportation law, 49 U.S.C. 5101 et
seq., was enacted ‘‘to provide adequate
protection against the risks to life and
property inherent in the transportation
of hazardous material in commerce
* * *’’. Certain provisions of this law,
including sections 5105(e), 5109, and
5119, apply only to the transportation of
hazardous material by motor vehicle.
The authority for implementing these
provisions (except section 5109(f)) has
been delegated to FMCSA under 49 CFR
1.73(d)(2)). (This authority was
transferred from the Federal Highway
Administration (FHWA) to a separate
Office of Motor Carrier Safety, 64 FR
56270 (Oct. 19, 1999), which became
FMCSA on January 1, 2000. See 64 FR
72959 (Dec. 29, 1999), and 65 FR 220
(Jan. 4, 2000)).

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules

Section 5105(e) provides that DOT
‘‘shall require by regulation that before
each use of a motor vehicle to transport
a highway-route-controlled quantity of
radioactive material in commerce, the
vehicle shall be inspected and certified
as complying with this chapter and
applicable United States motor carrier
safety laws and regulations.’’ This
section also provides that DOT ‘‘may
require that the inspection be carried
out by an authorized United States
Government inspector or according to
appropriate State procedures.’’ The
definition of a ‘‘highway route
controlled quantity’’ of a Class 7
(radioactive) material is set forth at 49
CFR 173.403, in terms of the activity
level of the radioactive material in a
single package. In general, this is a
quantity that emits high levels of
radioactivity and, accordingly, the
packaging, hazard communication, and
operating requirements that apply to a
shipment of a highway route controlled
quantity of a Class 7 material are
intended to both adequately identify the
presence of this material and ensure that
the packaging will withstand normal
transportation conditions and
foreseeable accidents, without a breach
of containment integrity.
Section 5109 requires 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). A person
may not offer such hazardous materials
for motor vehicle transportation in
commerce unless the motor carrier has
a safety permit. 49 U.S.C. 5109(f).
Under section 5109(b), a safety permit
is required for the following four
hazardous materials, above threshold
amounts established by DOT, but DOT
may also prescribe additional hazardous
materials, and the amount of each, to be
subject to the safety permit requirement:
1. A Class A or B explosive (now
Division 1.1, 1.2, or 1.3 explosive);
2. Liquefied natural gas;
3. Hazardous material designated as
extremely toxic by inhalation; and
4. A highway route controlled
quantity of radioactive material.
Other provisions in section 5109
require DOT to issue regulations for
issuing safety permits, including
application procedures; the duration,
term, and limitations of a safety permit;
other conditions needed to protect
public safety; and procedures to amend,
suspend, or revoke a safety permit. In

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order to issue a safety permit, DOT must
find that the motor carrier is fit, willing,
and able to (1) Provide the
transportation to be authorized by the
safety permit; (2) comply with Federal
hazardous material transportation law
and DOT’s regulations under that law;
and (3) comply with applicable Federal
motor carrier safety laws and applicable
minimum financial responsibility laws
and regulations. 49 U.S.C. 5109(a).
Section 5119 directed DOT to
establish a working group of State and
local government officials to make
recommendations to DOT with respect
to uniform forms and procedures for a
State ‘‘to register persons that transport
or cause to be transported hazardous
material by motor vehicle in the State’’
and ‘‘to allow the transportation of
hazardous material in the State,’’
including ‘‘whether to limit the filing of
any State registration and permit forms
and collection of filing fees to the State
in which the person resides or has its
principal place of business.’’ After
receiving a final report from the working
group, DOT ‘‘shall prescribe regulations
to carry out the recommendations
contained in the [final] report * * *
with which the Secretary agrees.’’
Prior Proceedings
On June 17, 1993, the Federal
Highway Administration (FHWA)
published in the Federal Register a
notice of proposed rulemaking to
establish a safety permit program
covering the four hazardous materials
specified in 49 U.S.C. 5109(b), including
the requirement for a pre-trip inspection
of a motor vehicle to be used to
transport a highway route controlled
quantity of Class 7 (radioactive)
material. 58 FR 33418. In response to
that notice, FHWA received more than
50 written comments, and these
comments have been considered in the
preparation of this SNPRM, as discussed
below.
On November 17, 1993, the Alliance
for Uniform HazMat Transportation
Procedures (Alliance), established under
49 U.S.C. 5119, transmitted its
recommendations to DOT, and it
submitted its final report to DOT on
March 15, 1996. According to the
Alliance, ‘‘[a]ll but nine states have
some type of permitting and/or
registration program for hazardous
materials transportation.’’ November 17,
1993 Report, p. 2–7. The Alliance
recommended that DOT:
1. Explore options for consolidating
State registration programs with the
Federal registration program (applicable
to shippers and carriers by all modes
and administered by DOT’s Research

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and Special Programs Administration
(RSPA), under 49 U.S.C. 5108);
2. Consider waiving the Federal
requirement for a safety permit for a
motor carrier that obtains a permit
under a uniform State permit program;
and
3. Promote a one-stop repository for
up-to-date information on hazardous
materials routing designations.
In its final report, the Alliance
described a two-year pilot project
carried out in four States (Minnesota,
Nevada, Ohio, and West Virginia) of a
‘‘base-state’’ system for registration and
collection of fees and reciprocity
between States that require permits.
FHWA decided not to proceed with
further rulemaking action to implement
the requirements in 49 U.S.C. 5109 and
5105(e) until it had considered the final
report and recommendations of the
Alliance. In its July 9, 1996 notice
published in the Federal Register (61
FR 36016), FHWA (1) summarized the
Federal permit and registration
requirements in the Federal hazardous
material transportation law, (2)
discussed the activities and
recommendations of the Alliance, and
(3) invited comments on the Alliance’s
final report and recommendations. In a
supplemental notice published in the
Federal Register on March 31, 1998 (63
FR 15362), FHWA discussed the
comments received in response to its
July 9, 1996 notice and directed a series
of additional questions to State agencies
and motor carriers. Only 11 States
responded to the notice, and they did
not reach a clear consensus on the
direction FHWA should take. State
designations and restrictions of highway
routes for transporting hazardous
materials have been published in the
Federal Register on June 9, 1998 (63 FR
31549), and Dec. 4, 2000 (65 FR 75771),
and are maintained on FMCSA’s
Internet Web site at http://
hazmat.fmcsa.dot.gov.
DOT has asked Congress to amend or
repeal 49 U.S.C. 5109 three times since
1997, because ‘‘many States have
different permit requirements’’ for
carriers of hazardous materials and
because the agency believed it had
appropriate safety monitoring systems
in place to address unsafe carriers
transporting these materials. In
addition, the pilot project under 49
U.S.C. 5119 revealed that a uniform
permit system will not likely resolve
different States’ concerns that their
needs will be met, and raises additional
concerns related to unnecessary
preemption and expenses of a parallel
Federal permitting system. In place of a
Federal safety permit, DOT proposed
that it should be authorized to continue

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules
its safety monitoring of carriers
transporting hazardous materials and
consider alternative means of enhancing
safety in motor carrier transportation of
hazardous materials, by such means as
additional monitoring of the safety
performance of carriers and performing
a safety review of ‘‘new entrants’’ within
18 months of the date when the carrier
begins operations. (On May 13, 2002,
FMCSA published an interim final rule
in the Federal Register establishing
minimum requirements for new entrant
motor carriers. The rulemaking seeks to
ensure that they are knowledgeable
about the applicable Federal regulations
and advises that FMCSA will conduct a
safety audit as soon as the new entrant
has been in operation for enough time
(generally, at least three months) to have
sufficient records to evaluate the
carrier’s basic safety management
controls. 67 FR 31978.)
The SNPRM
Congress has not eliminated the
statutory requirement for a Federal
safety permit. Accordingly, the FMCSA
is issuing a revised proposal in this
SNPRM. The FMCSA invites all
interested persons to comment on this
revised proposal and hopes to issue a
final rule that will phase in the
requirement for a safety permit over the
2005–2006 time period as motor carriers
submit or update their Motor Carrier
Identification Report (Form MCS–150)
(according to the schedule set forth in
49 CFR 390.19(a)).
Hazardous Materials for Which a Safety
Permit Would Be Required
In the 1993 NPRM, FHWA 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):
1. A highway route-controlled
quantity of a Class 7 (radioactive)
material;
2. more than 25 kg (55 pounds) of a
Division 1.1, 1.2, or 1.3 (explosive)
material;
3. more than one liter (1.08 quarts) per
package of a poisonous-by-inhalation
(PIH) material in Division 2.3, Packing
Group I, Hazard Zone A, or Division 6.1,
Packing Group I, Hazard Zone A; and
4. a shipment of compressed or
refrigerated liquid methane or natural
gas in bulk packaging having a capacity
equal to or greater than 13,248 L (3,500
gallons) for liquids or gases.

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Accordingly, the motor carriers
required to hold a safety permit would
be a subset of the carriers required to
register and pay a registration fee, and
no carrier that did not have to register
would be required to hold a safety
permit. In this SNPRM, FMCSA is
proposing the same scope of the safety
permit requirement, with the following
modifications from the proposals in the
NPRM:
—For motor carriers already
transporting these materials in
interstate or intrastate commerce,
there would be a two-year phase-in
period to obtain a safety permit based
on the schedule in 49 CFR 390.19(a)
for submitting or updating the Motor
Carrier Identification Report (Form
MCS–150). Also, there would not be
a separate three-year phase-in period
for motor carriers who transport
explosives, based on the amount of
explosives transported in a single
shipment, as proposed in the 1993
NPRM.
—Liquefied natural gas would include
all liquefied gases having a methane
content of at least 85%.
In response to the 1993 NPRM,
several commenters supported limiting
the scope of the safety permit
requirement to the materials specified in
the statute. The Edison Electric Institute
(EEI) stated that the requirement to hold
a safety permit should not be extended
to additional classes and quantities of
hazardous materials ‘‘unless and until
DOT gathers substantial evidence that
such extension would significantly
enhance transportation safety,’’ based
on its view that this requirement
‘‘would impose additional
administrative burdens on affected
motor carriers and on FHWA.’’ EEI
quoted the statement from DOT’s
comments on H.R. 3520, which became
the Hazardous Materials Transportation
Uniform Safety Act of 1990, Public Law
101–615, 104 Stat. 3244 (Nov. 16, 1990),
that ‘‘it is essential to begin with a
limited permitting program that is
administratively practicable, and then
consider expanding the program, as
determined necessary.’’ House Report
No. 101–444, Committee on Energy and
Commerce, 101st Cong., 2d Sess., pp.
66–67 (April 3, 1990).
The Chemical Waste Transportation
Institute (CWTI) recommended that the
requirement for a safety permit be
broadened to cover all motor carriers
required to register and pay a
registration fee under 49 U.S.C. 5108.
CWTI stated that any motor carrier that
transports a quantity of hazardous
material for which a placard is required
‘‘should have a safety rating to

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demonstrate that [its] safety rating is
above ‘‘unsatisfactory,’’’ and the ‘‘only
‘new’ administrative burden would be
that created by the requirement to
‘review’ each subject motor carrier’s
rating every three years.’’
Two commenters, Tri-State Motor
Transport Co. (Tri-State) and the
International Brotherhood of Teamsters,
suggested that a safety permit should be
required for motor carriers that transport
any hazardous materials, without
specifying any threshold amounts.
According to Tri-State, ‘‘the sooner the
program is expanded to cover all
hazardous materials the more effect it
will have in reaching this goal.’’ The
Teamsters noted that ‘‘all classes of
hazmat’’ are involved in hazardous
materials incidents.
Additional comments addressed the
specific hazardous materials for which a
safety permit would be required. With
respect to explosives, a construction
industry association stated that a safety
permit should be required only for a
carrier that transports large quantities of
explosives ‘‘from manufacturer to the
supplier,’’ and that ‘‘[e]xisting OSHA
regulations can cover the
transportation’’ by a contractor who
used explosives at a specific jobsite,
because the 25 kg threshold ‘‘is often
transported in a small ‘pick-up’ type
truck.’’ The American Pyrotechnics
Association (APA) stated that requiring
a safety permit to transport more than
25 kg of Division 1.3 G explosives
(including ‘‘display’’ fireworks) would
present ‘‘unnecessary burdens’’ for this
industry. APA referred to the seasonal
nature of this industry (around July 4),
its ‘‘excellent safety record’’ as reflected
in the few incidents in RSPA’s
Hazardous Materials Information
System, and other requirements such as:
(1) provisions in the Hazardous
Materials Regulations (HMRs, 49 CFR
parts 171–180) on training of hazmat
employees, and (2) the Federal Motor
Carrier Safety Regulations (49 CFR parts
350–399) for the driver to have a
commercial driver’s license with a
hazmat endorsement. APA stated that a
requirement for a safety permit ‘‘will do
nothing to enhance public safety beyond
that which will be achieved through the
[hazmat] training,’’ and it expressed
concerns that States will develop
separate programs ‘‘with duplicative
permit requirements and unnecessary,
burdensome paperwork.’’ APA asked for
a delay in the effective date of the safety
permit program for carriers of
explosives, while the Idaho State Police
opposed any extension of the three-year
phase-in period. Tri-State also
recommended reducing the three-year
phase-in period.

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In the NPRM, FHWA proposed to
limit the poisonous inhalation (PIH)
materials for which a safety permit
would be required to those Packing
Group I materials in Hazard Zone A.
However, it asked for information on
materials in Hazard Zone B and whether
the safety permit requirement ‘‘should
be expanded to include the
transportation of [PIH] Hazard Zone B
hazardous materials,’’ which ‘‘include
such widely distributed chemicals as
chlorine, hydrogen sulfide, ethylene
oxide, and nitric oxide, to name a few.’’
(58 FR at 33420). Two State police
forces recommended including Hazard
Zone B materials (California) or giving
further consideration to Hazard Zone B
materials (Idaho); with Idaho suggesting
that ‘‘safety is a greater concern under
the safety permit program than under
the registration program,’’ so that the
reasons for not requiring registration by
carriers of smaller amounts of Hazard
Zone B materials (in a bulk container
with a capacity less than 3,500 gallons)
should not apply to the requirement for
a safety permit. Three other commenters
opposed expanding the safety permit
requirement to Hazard Zone B materials,
including the Oregon Public Utilities
Commission, which stated that safety
would not be increased by requiring a
safety permit for ‘‘all movements of
chlorine’’ and ‘‘many pesticide
movements.’’
Many comments addressed the
proposal to require a safety permit to
transport ‘‘liquefied natural gas,’’
including the gases covered by that
term. Several persons said that the
NPRM was ambiguous and could be
read to cover all Division 2.1 materials
that can be a ‘‘liquid natural gas’’ and
all liquid fuels derived from natural gas.
Air Products and Chemicals, Inc. stated
that ‘‘liquefied petroleum gases and
natural gas liquids represent at least
comparable safety risks and require at
least comparable carrier expertise,’’
while the National Propane Gas
Association (NPGA) opined that
‘‘propane, also known as liquefied
petroleum gas or LP-gas, was not
included in the statute as a product to
be regulated through a permit,’’ based
on ‘‘the historical safety of the propane
gas transportation system under the
existing comprehensive DOT regulatory
system.’’ NPGA stated that there is no
basis in legislative history or experience
to require a safety permit for all Division
2.1 hazardous materials. The American
Petroleum Institute recommended that
the proper shipping name(s) of the
specific materials be set forth in the
regulations, rather than references to
Division 2.1 materials. Three

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commenters stated that the use of the
term ‘in bulk’ to refer to a container
with a capacity of 3,500 gallons or more
would be confusing, because a ‘‘bulk
packaging’’ is defined in 49 CFR 171.8
to include a container having a
‘‘maximum capacity greater than 450 L
(119 gallons) as a receptacle for a
liquid’’ and a ‘‘water capacity greater
than 454 kg (1000 pounds) as a
receptacle for a gas.’’ Yellow Freight
System, Inc. supported the 3,500-gallon
capacity threshold for liquefied natural
gas, because ‘‘[l]ess than ‘in bulk’
quantities generally are less likely to
pose an immediate danger to public
safety while in transit compared to ‘in
bulk’ shipments.’’
In the preliminary cost-benefit
analysis of this rulemaking (a copy of
which has been placed in the docket),
the agency considered three different
lists of hazardous materials for which a
safety permit would be required:
Option No. 1 is the ‘‘statutory’’ list of
the four categories of hazardous
materials in 49 U.S.C. 5109(b), at the
same threshold quantities for which
registration is required. Under this
option, almost 2,500 motor carriers
(including about 800 intrastate carriers)
would be required to obtain a safety
permit.
Option No. 2 includes an ‘‘expanded’’
list of the following hazardous
materials, which would make
approximately 6,500 motor carriers
(including about 1,830 intrastate
carriers) subject to the safety permit
requirement:
—Explosive materials: any quantity of
Division 1.1 and 1.2 materials; more
than 25 kg (55 pounds) of Division 1.3
materials; and more than 454 kg
(1,000 pounds) of Division 1.5
materials.
—PIH materials (in Divisions 2.3 and
6.1): Hazard Zone A materials in any
quantity; a shipment of Hazard Zone
B materials in a bulk packaging
(capacity greater than 450 L [119
gallons]); 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).
—Flammable gases (Division 2.1),
anhydrous ammonia (Division 2.2),
and poisons (Division 6.1, Packing
Group I, other than PIH materials): a
shipment in a bulk packaging having
a capacity equal to or greater than 13,
248 L (3,500 gallons).
—Organic peroxides: any quantity of a
Type B, temperature controlled
organic peroxide (Division 5.2)
material.
—Infectious substances (Division 6.2):
any quantity of a select agent or toxin

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regulated by the Centers for Disease
Control and Prevention (CDC) under
42 CFR part 73, except for laboratory
samples.
—Radioactive (Class 7) materials: any
‘‘exclusive use’’ shipment of Class 7
materials transported in accordance
with 49 CFR 427(a) as well as any
highway route controlled quantity.
Option No. 3 would apply the
requirement for a safety permit to all
motor carriers subject to the security
plan requirements in 49 CFR 172.800,
adopted in the final rule published by
RSPA under docket No. RSPA–02–
12064 (HM–232) on March 25, 2003 (67
FR 14521). This would be more than
16,250 motor carriers (including about
4,600 intrastate carriers) that are
required to register with RSPA and pay
a registration fee or transport a select
agent or toxin regulated by the CDC
under 42 CFR part 73.
FMCSA continues to believe that the
initial requirements for a safety permit
should apply to only those motor
carriers that transport the materials
mandated by Congress (option No. 1).
However, expanding the existing
statutory list to require a safety permit
for motor carriers that transport other
hazardous materials (covered by option
Nos. 2 or 3) should provide the public
with additional safety measures, and
FMCSA invites comments on whether
the agency should, in the future, apply
the requirement for a safety permit to
motor carriers that transport the
hazardous materials in the ‘‘expanded’’
or ‘‘HM–232’’ lists above.
Intrastate and Foreign Motor Carriers
The requirement to hold a safety
permit in 49 U.S.C. 5109 applies to both
interstate and intrastate motor carrier
operations within the United States. In
the 1993 NPRM, FHWA proposed to
require that intrastate motor carriers
must comply with ‘‘all applicable parts
of the FMCSRs’’ in order ‘‘to use the
provisions of part 385, ‘Safety Fitness
Procedures,’ in making determinations
to issue, or deny, a request for a safety
permit for either interstate or intrastate
motor carriers’’ (58 FR at 33421).
Several commenters raised concerns
about applying the financial
responsibility requirements in 49 CFR
part 387 to intrastate carriers that are
subject only to State requirements when
they use a smaller vehicle (having a
gross vehicle weight rating of less than
10,000 pounds) to transport the
hazardous materials for which a safety
permit would be required.
As discussed below under
‘‘Conditions for issuing a safety permit,’’
FMCSA is still proposing to require that
a motor carrier have a ‘‘satisfactory’’

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safety rating in order to obtain a safety
permit. Accordingly, an intrastate
carrier would be required to apply for a
U.S. DOT number as a ‘‘new entrant’’
and subject itself to a compliance
review. The safety rating issued by
FMCSA to an intrastate carrier would be
used only for purposes of issuing a
safety permit; the safety rating issued to
an intrastate carrier would not be posted
on FMCSA’s Web site nor would it be
used by FMCSA for any purpose other
than determining whether the carrier is
entitled to a safety permit.
FMCSA does not consider that section
5109 is a mandate to make all intrastate
motor carriers subject to provisions in
the FMCSRs that do not already apply
to them, including the financial
responsibility requirements in 49 CFR
part 387. Except for the requirement to
hold a safety permit, in order to
transport any of the designated
hazardous materials, and to undergo a
compliance review in order to
demonstrate its fitness to hold a safety
permit, an intrastate carrier would not
become subject to other requirements in
the FMCSRs that do not already apply.
The definition of ‘‘interstate
commerce’’ includes foreign commerce.
Therefore, Canadian and Mexicodomiciled motor carriers transporting
HM permitted materials in the United
States would be subject to the
requirements proposed in this SNPRM.
Application Procedures
Each motor carrier that conducts
operations in interstate commerce must
submit to FMCSA a Motor Carrier
Identification Report, Form MCS–150,
before it begins operations and on a twoyear cycle thereafter (the month and
year of submission are based on the last
two digits of the carrier’s U.S. DOT
number). 49 CFR 390.19(a). Effective
January 1, 2003, a ‘‘new entrant’’ motor
carrier must also submit Form MCS–
150A, Safety Certification for
Application for a U.S. DOT Number,
and other forms to obtain operating
authority. 49 CFR 385.305.
In the 1993 NPRM, FHWA proposed
to use a revised Form MCS–150 as the
application for a safety permit. Two
commenters supported the use of the
MCS–150 form (with revisions) for
applying for a safety permit. Other
commenters suggested combining the
safety permit and registration programs,
in terms of a single application form,
registration and permit number, and
expiration dates.
FMCSA believes that the safety permit
program can best be coordinated with
the biennial report filed on Form MCS–
150 (and Form MCS–150A for a new
entrant). Rather than revising the Form

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MCS–150, however, FMCSA proposes to
create a new Form MCS–150B for a
motor carrier to provide the limited
additional information required for
issuance of a safety permit. FMCSA
believes that keeping the safety permit
program part of the motor carrier
identification and safety fitness program
with the same schedule for renewal will
be more efficient than attempting to
combine the safety permit application
with the registration program (which
applies to offerors and carriers by all
modes of transportation, allows
registration for one, two, or three years
at the registrant’s option, and operates
on a mid-year basis [July 1 to June 30]
rather than a staggered cycle throughout
a two-year period).
Implementation of the safety permit
requirement would be phased in
beginning January 1, 2005. The actual
date of compliance would depend on
whether the motor carrier is already
involved in the transportation of a
permitted material. A motor carrier that
is not involved in the transportation of
a permitted material on January 1, 2005,
would need to apply for and receive a
safety permit before it may transport any
of the hazardous materials for which a
safety permit would be required.
However, a ‘‘new entrant’’ motor carrier
that applies for a U.S. DOT number after
January 1, 2005, would be required to
apply for a safety permit (by submitting
Form MCS–150B) during 2005 or 2006.
Thus, until the motor carrier that is
already operating is required to renew
its U.S. DOT number during 2005 or
2006, it need not apply for a safety
permit. In all cases, a safety permit will
be valid until the next date for filing
Form MCS–150 (in accordance with the
schedule set forth in 49 CFR
390.19(a)(2) and (3)).
A draft of Form MCS–150B is
available in the docket (at the DMS Web
site http://dms.dot.gov), and interested
persons are invited to submit comments
on that draft. As indicated on that draft,
FMCSA proposes to require that an
official of the motor carrier must certify
‘‘under penalties of perjury,’’ but not to
require notarization. As in the 1993
NPRM, FMCSA is not proposing to
charge a fee for applying for a safety
permit, but 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
In the 1993 NPRM, FHWA proposed
that its determination on an application
for a safety permit would be based
‘‘upon a safety fitness finding made

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49741

pursuant to 49 CFR part 385.’’ 58 FR at
33421. FHWA also proposed authority
to issue a temporary safety permit to an
unrated motor carrier, pending a safety
fitness determination, when the carrier
has certified in its application that it is
operating in full compliance with the
FMCSRs and HMRs, or comparable
State regulations (including financial
responsibility requirements in part 387
or State regulations, whichever is
applicable). Under the 1993 proposal, a
temporary safety permit would remain
in effect for no more than 120 days ‘‘or
until a safety rating is assigned,
whichever occurs first’’ (58 FR at
33424).
As in the 1993 NPRM, FMCSA
proposes 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 the
regulations 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). This
SNPRM also proposes additions to the
list of ‘‘acute’’ and ‘‘critical’’ regulations
in Section VII of Appendix B to part
385.
FMCSA is also proposing to add 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 registered with RSPA (and remain
registered). A satisfactory security
program would apply to motor carriers
transporting hazardous materials in
commerce listed in this Supplemental
Notice of Proposed Rulemaking
(SNPRM). A satisfactory security
program must include: (1) A security
plan as prescribed in subpart I of Part
172 of this title, (2) means of
communication that will enable the
vehicle operator to immediately contact
the motor carrier during the course of
transportation as required in this
SNPRM, and (3) means of providing its
hazardous materials employees with
security training for hazardous materials
employees. FMCSA is also proposing to
issue a temporary safety permit, valid
for up to 270 days, to a motor carrier
that does not have a safety rating but
certifies that it has a satisfactory
security program and is operating in full
compliance with the HMRs, the
FMCSRs or comparable State
regulations, and minimum financial
responsibility requirements in 49 CFR
part 387 or State regulations (whichever
are applicable). However, FMCSA
would not issue a temporary safety

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permit to a motor carrier that, as
indicated in the Motor Carrier
Management Information System
(MCMIS), has a crash rate in the top
30% of the national average; has a
driver, vehicle, hazardous material, or
total out-of-service rate in the top 30%
of the national average; or is listed on
FMCSA’s SafeStat A, B, C, or D lists.
Comments to the 1993 NPRM
supported use of the safety rating to
determine a motor carrier’s fitness to
hold a safety permit, but raised
questions about the manner in which a
safety rating is assigned and whether the
120 day limitation for a temporary
safety permit was sufficient, especially
to cover all intrastate carriers that have
not previously been required to submit
Form MCS–150 and obtain a U.S. DOT
number. The California Highway Patrol
(CHP) recommended that a safety rating
be assigned only after a ‘‘compliance
review,’’ with greater emphasis on ‘‘the
mechanical condition of the carrier’s
vehicles,’’ and not a lesser ‘‘safety
review’’ which it considered not to be
‘‘sufficient to determine a carrier’s
actual safety compliance.’’ CHP also
recommended that the compliance
review be performed at the principal
location where hazardous materials
operations take place, rather than at its
main office or headquarters which may
be ‘‘far removed from the actual working
locations.’’
The Oregon Public Utilities
Commission expressed concern that the
safety ‘‘rating system is difficult to
decipher and appears * * * to be
somewhat arbitrary’’ with variations
among different regions. Baker
Performance Chemicals, Inc. suggested
that there be more discussion on how
the safety rating is determined. CWTI
recommended that a written notification
of an ‘‘unsatisfactory’’ or ‘‘conditional’’
safety rating include written notice that
the carrier is prohibited from
transporting any of the hazardous
materials for which a safety permit is
required.
FMCSA believes that most, if not all,
of the concerns expressed about the
safety rating system itself have been
addressed in the 1997 revisions to 49
CFR part 385, including the addition of
Appendix B to that part (‘‘Explanation
of Safety Rating Process’’). See the final
rules published May 28, 1997 (62 FR
28807), and November 6, 1997 (62 FR
60035). At present, FMCSA bases a
safety rating only on a full compliance
review, and it retains the discretion to
perform that review at any of the motor
carrier’s facilities. FMCSA shares the
concerns that 120 days may not be
sufficient time to perform a compliance
review for a motor carrier that does not

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have a safety rating, and the agency
proposes to allow a temporary safety
permit to remain in effect for up to 270
days, providing that the applicant
satisfies all the conditions for issuance
of a temporary safety permit.
Permit Number and Evidence in the
Vehicle
In the 1993 NPRM, FHWA proposed
that its written notification of a
‘‘satisfactory’’ safety rating would ‘‘serve
as the safety permit and shall include
the safety permit number assigned.’’ (59
FR at 33424) It also proposed that the
safety permit number must be ‘‘clearly
displayed on shipping papers or the
appropriate transportation document,’’
in order to meet the statutory
requirement for the motor carrier to
keep ‘‘a copy of the permit, or other
proof of its existence, in the vehicle.’’ 49
U.S.C. 5109(a). FHWA noted the
prohibition in § 5109(f) against a person
offering a designated hazardous material
for transportation by motor vehicle
unless the carrier holds a safety permit,
and it indicated that ‘‘RSPA will
subsequently initiate rulemaking which
will address shipper responsibility.’’ (58
CR at 33419)
The National Motor Freight Traffic
Association (NMFTA) supported the use
of a carrier’s U.S. DOT number as the
safety permit number and stated that
‘‘use of this number would minimize
paperwork, inasmuch as the assigned
safety permit number would be
displayed on the carriers’ transportation
documents.’’ It also stated that, since
FHWA intended to add a ‘‘permit’’
database to its existing information
systems, ‘‘safety fitness and permit
information would be readily available
to federal and state officials and
enforcement personnel.’’ CHP
questioned whether use of the U.S. DOT
identification number would be
sufficient because ‘‘all private interstate
motor carriers must obtain and display’’
this number. The Idaho State Police
stated that ‘‘there is no way for an
enforcement officer [to] know that the
carrier has met the requirements for
having a safety permit,’’ and it
recommended the creation of an
approach providing ‘‘adequate measures
for ensuring that safety permit numbers
are legitimate and verifiable.’’
Some commenters suggested that the
same number should be used for both
registration and the safety permit, to
cover the same period of time, and that
DOT should use information from the
registration program to issue safety
permits to carriers with a U.S. DOT
identification number. CWTI suggested
that the safety permit number should be
included on the registration certificate

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or another document carried on the
vehicle, rather than the shipping paper
prepared by the shipper (or offeror).
Other commenters objected to the
proposed requirement that the safety
permit number must be on the shipping
paper or stated that the specific location
and manner of displaying the safety
permit number needed to be addressed.
Yellow Freight stated that law
enforcement officers should be able to
determine ‘‘through another source’’
whether a carrier holds a safety permit,
and adding additional information to
shipping papers ‘‘that is not essential to
immediate safety concerns will not
enhance the transportation of hazardous
materials.’’ The Institute of Makers of
Explosives (IME) and the International
Society of Explosive Engineers (ISEE)
stated that requiring the shipper to put
the carrier’s safety permit number on
the shipping paper would result in more
errors, as well as increase the time and
effort of preparing shipping papers. 3M
suggested that the carrier (rather than
the shipper) should be responsible for
putting the safety permit number on
shipping papers.
Associations of motor carriers
endorsed the statutory requirement that
a shipper (or offeror) must verify that
the carrier holds a safety permit before
offering a designated hazardous material
for transportation. 3M objected and
Mobil stated that access to FMCSA’s
Motor Carrier Management Information
System (MCMIS) would be necessary for
a shipper to verify that it has a permit,
and that there would be no need to have
the permit number on shipping papers
if a carrier were required to provide
‘‘proof of fitness and safety permit
issuance’’ to shippers. In addition, ISEE
raised a concern about ‘‘the availability
of explosives information to the public
through the inclusion of carrier permit
information in MCMIS.’’
In this SNPRM, FMCSA is no longer
proposing that the carrier’s safety permit
number must appear on the shipping
paper, but the carrier would be required
to maintain a copy of the safety permit
or another document showing the
permit number in the vehicle
transporting a designated hazardous
material. A State or local law
enforcement officer would be able to
confirm the validity of this number
through real-time or close to real-time
information made readily accessible by
FMCSA.
Section 5109(f) provides that a person
may offer a designated hazardous
material to a motor carrier for
transportation in commerce ‘‘only if the
carrier has a safety permit.’’ The
authority for implementing this

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provision has been delegated to RSPA.
See 49 CFR 1.53(b)(2), 1.73(d)(2).
Written Route Plan and Communication
The 1993 NPRM included a proposal
to require compliance with the routing
and route plan requirements then set
forth in 49 CFR 177.825 (with regard to
radioactive materials) and 397.9 (with
regard to Class A and B explosives).
These requirements (now contained in
49 CFR 397.67 and 397.101) specify that
the carrier must provide its driver with
a written route plan when the motor
vehicle contains a highway route
controlled quantity of a Class 7
(radioactive) material or any quantity of
a Division 1.1, 1.2, or 1.3 (explosive)
material.
FMCSA considers that preparation of
and adherence to a written route plan
will improve the safety and security of
transportation of all materials for which
a safety permit is required. Accordingly,
in this SNPRM, FMCSA is proposing 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 PIH
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. We are also
proposing to require (in proposed
§ 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. The written route plan when
carried in the vehicle, must be
maintained in such a manner that
ensures security requirements set forth
in Subpart I of part 172 of this title are
met. The driver would no longer be
allowed to prepare the written route
plan for the carrier, but the driver would
be required to amend the written route
plan to show any deviation. In addition,
the driver would be required to
communicate with the carrier at least
once every two hours and any time
there is a deviation from the written
route plan, and the motor carrier would
be required to contact law enforcement
officials in the event that there has been
no communication from its driver for
more than three hours.
FMCSA is also proposing to require
that the vehicle driver must have in the
vehicle, and make available to law
enforcement officials upon request, the
telephone number of an employee of the
motor carrier who has a copy of the
written route plan and is able to
determine whether the motor vehicle is
on the route specified in that route plan.
Furthermore, FMCSA is proposing to
require the motor carrier to maintain a
record of all communications with the

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vehicle driver during transportation of a
hazardous material for which a safety
permit is required, containing 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),
FHWA proposed in the 1993 NPRM to
require an inspection of a vehicle
transporting a highway route controlled
quantity of a Class 7 (radioactive)
material, before each trip, in accordance
with Appendix G to the FMCSRs.
FHWA also proposed that the inspector
must have the qualifications specified in
49 CFR 396.19 and that written
certification including certain
information must be prepared and
retained by the carrier for one year. It
invited comments on its proposed
inspection criteria and ‘‘whether
radiological monitoring should be
included.’’
The comments on this topic
addressed who should perform these
inspections, the inspection criteria, and
whether or not the inspection should
include radiological monitoring. The
Department of Energy (DOE) and EEI
expressed concern that a requirement
for radiological monitoring would
duplicate the requirement in 49 CFR
173.441 to ensure that a package
containing radioactive material is
checked before shipment, but several
other commenters supported a
requirement for monitoring as part of
the pre-trip inspection. To the extent
that monitoring is performed, some
commenters, including Tri-State, stated
that only the shipper has monitoring
equipment and trained personnel so that
it (rather than the carrier) should
perform the pre-trip inspection. DOE
endorsed ‘‘the flexibility of allowing
inspections to be performed by
inspectors from organizations other than
the carrier itself,’’ and other persons
(besides a motor carrier official) should
be allowed to sign the inspection
certification. DOE also stated that in any
case, radiological monitoring should not
be done by ‘‘a qualified vehicle
inspector’’ unless that person was also
a qualified health physicist.
Tri-State and CHP supported use of
the proposed inspection criteria and
inspector qualifications in the FMCSRs.
Others stated that the criteria in

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49743

Appendix G are not sufficient and
suggested using standards then under
development by the Commercial
Vehicle Safety Alliance (CVSA). The
Idaho State Police also recommended
that ‘‘in order to pass the inspection, the
vehicle must be defect free.’’ CHP and
Montana DOT recommended that the
inspection document or certification
must be carried on the vehicle.
In this SNPRM, FMCSA is proposing
inspection standards similar to those
contained in the CVSA Level VI
Inspection Program for Radioactive
Shipments. The pre-trip inspection
would have to be performed by a
government inspector, (i.e., one
employed by or under contract to 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 and inspecting vehicles
transporting highway route controlled
quantity (HRCQ) radioactive materials.
The inspection must cover all
applicable requirements in the HMRs
and FMCSRs, or compatible State
regulations, including 49 CFR parts 383
(commercial driver’s license), 391
(driver qualifications), 395 (hours of
service), parts 393 and 396 (vehicle
condition), 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
As discussed above, in order to be
issued a safety permit, a motor carrier
would have to be registered with RSPA
and have a ‘‘satisfactory’’ safety rating
and a satisfactory security program. A
temporary safety permit could be issued
to a carrier that does not have a safety
rating, valid for up to 270 days; if the
carrier receives a ‘‘satisfactory’’ safety
rating, it would receive a safety permit,
but the temporary permit would be
revoked if the carrier receives a safety
rating that is less than ‘‘satisfactory.’’
FMCSA is also proposing that a safety
permit will be subject to suspension or
revocation if a carrier fails to maintain
its ‘‘satisfactory’’ safety rating or under
other specified circumstances, including
the failure to submit a renewal
application or providing any false or
misleading information on a required
application form; failure to maintain a
satisfactory security plan; failure to
comply with an out-of-service order;
failure to comply with the FMCSRs,
HMRs, or compatible State
requirements, or an order issued under
any of these, in a manner that shows the

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carrier is not fit to transport the
hazardous materials for which a safety
permit is required; loss of its operating
rights; and suspension of its registration
for failure to pay a civil penalty or abide
by a payment plan.
The SNPRM contains 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 ground for denial, suspension, or
revocation of the safety permit. In
summary, where there already exists a
right to administrative review of the
underlying basis for denial, suspension,
or revocation, the carrier must pursue
its existing rights to review.
Accordingly, if the basis for denial,
suspension, or revocation of a safety
permit is the carrier’s failure to receive
or maintain a ‘‘satisfactory’’ safety
rating, its review rights are limited to
those set forth in 49 CFR 385.15
(administrative review of a proposed
safety rating) and 385.17 (change to
safety rating based on corrective
actions). If the basis for denial,
suspension, or revocation of a safety
permit is the carrier’s failure to pay a
civil penalty or abide by a payment
plan, its review rights are limited to the
show cause proceedings set forth in 49
CFR 386.83(b) and 386.84(b).
When a denial, suspension, or
revocation of a safety permit is based on
another ground, the SNPRM proposes
that the carrier may submit a written
request for administrative review within
30 days after service of a written
notification that FMCSA has (1) denied
a safety permit, (2) immediately
suspended or revoked a safety permit
(when an imminent hazard exists), or (3)
proposed to suspend or revoke a safety
permit. The specific procedures that
would apply to a request for
administrative review are contained in
proposed § 385.423(d).
State Permits
The 1993 NPRM contemplated that
many States would continue to require
carriers to obtain a permit in order to
transport hazardous materials within
the State. In the SNPRM, FMCSA
proposes that the Federal safety permit
would be in addition to any required
State permit, but that FMCSA would
issue a 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.
As stated in the 1993 NPRM, a State
permit requirement would be
preempted ‘‘if compliance with both the
State and Federal permit requirements

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is not possible, or if the State
requirement creates an obstacle to the
accomplishment’’ of Federal hazardous
material transportation law and the
regulations.’’ (58 FR at 33419) In
addition to these general preemption
criteria now set forth in 49 U.S.C.
5125(a), a State may impose a fee for a
permit to transport hazardous materials,
‘‘only if the fee is fair and used for a
purpose related to transporting
hazardous material, including
enforcement and planning, developing,
and maintaining a capability for
emergency response.’’ (49 U.S.C.
5125(g)(1)).
RSPA has stated that ‘‘[a] permit may
serve several legitimate State police
power purposes, and the bare
requirement * * * that a permit be
applied for and obtained is not
inconsistent with Federal requirements.
However, a permit itself is inextricably
tied to what is required in order to get
it’’ so that a permit requirement ‘‘must
be considered together with the
application requirements.’’
Inconsistency Ruling (IR) No. 2 (Rhode
Island), 44 FR75566, 75570–71 (Dec. 20,
1979). Accordingly, a State and local
permit for hazardous materials
transportation is not preempted in all
cases, but only when the underlying
requirements that must be fulfilled in
order to obtain the permit conflict with
Federal hazardous materials law or the
HMR. Id.; Preemption Determination
(PD) No. 14 (Houston), 63 FR 67506,
67510 (Dec. 7, 1998), 64 FR 949, 33952
(June 24, 1999); IR–28 (San Jose,
California), 55 FR 8884, 8890 (Mar. 8,
1990); IR–20 (Triborough Bridge and
Tunnel Authority), 52 FR 24396, 24397–
98 (June 30, 1987); IR–3 (Boston), 46 FR
18918, 18923 (Mar. 26, 1981).
The November 17, 1993 report of the
Alliance discussed the two primary
reasons that States carry out their own
permit and registration programs: (1)
The issuance of a permit provides an
enforcement mechanism (suspension or
revocation of the permit) if a carrier acts
irresponsibly or violates State
transportation or environmental laws,
and (2) the registration or permit
process provides a State information
about the business activities of persons
who operate within the State but are not
based within the State. In its letter
transmitting that report, the Alliance
stated that its members had operated
under the assumption that Federal
hazardous material transportation law
‘‘authorized a dual system for
registering and permitting motor
carriers,’’ and that a 1992 technical
amendment to the law made this
explicit. The Alliance stated that the
language in the two separate sections of

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the law on a Federal safety permit and
State permits (now §§ 5109 and 5119)
does not restrict ‘‘the types of hazardous
materials’’ that may be covered under a
State permit, and expressed opposition
to finding that a Federal safety permit
program ‘‘would preempt state
permitting of carriers of hazardous
materials covered under the federal
program.’’
CWTI concurred that a uniform State
permit system proposed by the Alliance
and implemented under Federal
regulations would not be subject to
preemption under the dual compliance
and obstacle criteria, contained in 49
U.S.C. 5125(a). It recommended that the
applicability of these criteria to State
permits should be clarified in several
respects by placing the preemption
standard in the regulations (rather than
just in the preamble) and explicitly
stating that ‘‘a motor carrier holding a
valid federal safety permit would be
exempt from all non-federal permit
requirements.’’
The Public Utilities Commission of
Ohio stated that it would be ‘‘against the
public interest’’ to establish a Federal
program under which a State permit
program would be preempted with
respect to the hazardous materials for
which a safety permit would be
required, but not with respect to other,
‘‘lower risk’’ materials. CHP asked for
further clarification of the preemption
standard to be applied to State permits,
in light of the statement in the 1993
NPRM that a State permit covering the
‘‘same hazardous materials * * * based
on a demonstration of safety fitness’’
would be preempted after
implementation of a Federal safety
permit program. (58 FR at 33423)
Other persons submitting comments
on the 1993 NPRM urged alignment of
the Federal and State programs,
suggesting that States ‘‘accept the
FHWA program’’ (IME), ‘‘closely align
this permit program with the work of
the Alliance’’ (Yellow Freight), ‘‘see if
one program could be established’’
under the Alliance proposal (Montana
DOT), or ‘‘consider waiving the FHWA
permitting requirement’’ if a uniform
State program contained requirements
that ‘‘duplicate or exceed those
contained in the NPRM’’ (DuPont).
FMCSA agrees that Federal hazardous
materials transportation law allows
States to continue their permit
requirements after the implementation
of a Federal safety permit requirement,
and that, if a State has a safety permit
program that is equivalent to the
requirements in 49 U.S.C. 5109, FMCSA
may properly accept the findings of the
State that a motor carrier is ‘‘fit, willing,
and able’’ to transport the designated

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules
hazardous materials and to comply with
the applicable laws, regulations, and
financial responsibility requirements.
Section 5109 requires DOT to issue a
Federal safety permit to a motor carrier
that meets these requirements, rather
than simply allow the carrier to operate
under an equivalent State permit, so
FMCSA proposes to issue a Federal
permit, without further inspection or
investigation, when it can verify that
this condition exists. FMCSA
encourages States to have or implement
a HM Permit program equivalent to a
Federal permit that will ultimately
prevent duplication of a State and
Federal requirement.
To the extent that a State permit
program is equivalent to the Federal
requirements, no preemption issues
would arise. It is only differences
between Federal and non-Federal
requirements that should raise issues of
preemption. In this regard, FMCSA and
RSPA consider that the preemption
criteria set forth in 49 U.S.C. 5125 will
continue to apply to non-Federal permit
requirements, just as those criteria have
applied in the past, and that the impact
on States of a Federal permit program
should be ‘‘minimal.’’ (58 FR at 33423)
Preemption would not necessarily
arise simply if a State applies its permit
requirements to a smaller, larger, or
different group of hazardous materials,
than those to be covered by a Federal
safety permit. In a recent determination,
RSPA noted that it ‘‘has considered
numerous challenges to non-Federal
requirements without finding that the
specific requirements were preempted
because they did not apply to all hazard
classes and all materials listed in the
Hazardous Materials Table in 49 CFR
172.101,’’ although there are
circumstances in which ‘‘a specific nonFederal requirement that applies only to
one hazardous material may, indeed, be
an obstacle to accomplishing and
carrying out Federal hazardous material
transportation law or the HMR.’’ PD–
13(R) (Nassau County), decision on
petition for reconsideration, 65 FR
60238, 60241 (Oct. 10, 2000). As already
discussed, in assessing a differing State
(or local) permit requirement, the issue
will be whether the underlying
requirements that must be fulfilled in
order to obtain the permit conflict with
Federal hazardous materials law or the
HMR. The preemption criteria set forth
in 49 U.S.C. 5125 will continue to apply
to State permits, and it is not considered
necessary to repeat those criteria in the
regulatory text of this final rule.

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Related Regulations and Rulemaking
Projects
As discussed above, in this SNPRM,
we are proposing to require an applicant
for a safety permit to certify compliance
with the HMR security plan and training
requirements adopted in a final rule
published by the Research and Special
Programs Administration (RSPA) on
March 25, 2003 (68 FR 14509). That
final rule, published under RSPA’s
docket HM–232, requires persons who
offer for transportation or transport
certain hazardous materials in
commerce to develop and implement
security plans. The security plan
requirement, codified in a new subpart
I of part 172 of the Hazardous Materials
Regulations (HMR; 49 CFR Parts 171–
180), applies to shipments of the
following classes and quantities of
hazardous materials:
(1) A highway route-controlled quantity of
a Class 7 (radioactive) material in a motor
vehicle, rail car, or freight container;
(2) More than 25 kg (55 pounds) of a
Division 1.1, 1.2, or 1.3 (explosive) material
in a motor vehicle, rail car, or freight
container;
(3) More than one L (1.06 qt) per package
of a material poisonous by inhalation that
meets the criteria for Hazard Zone A;
(4) A shipment of a quantity of hazardous
materials in a bulk packaging having a
capacity equal to or greater than 13,248 L
(3,500 gallons) for liquids or gases or more
than 13.24 cubic meters (468 cubic feet) for
solids;
(5) A shipment in other than a bulk
packaging of 2,268 kg (5,000 pounds) gross
weight or more of one class of hazardous
materials for which placarding of a vehicle,
rail car, or freight container is required;
(6) A select agent or toxin regulated by the
Centers for Disease Control and Prevention;
and
(7) A quantity of hazardous material that
requires placarding.

A security plan must include an
assessment of possible transportation
security risks for shipments of the
hazardous materials listed above and
appropriate measures to address the
assessed risks. Specific measures put
into place by the plan may vary
commensurate with the level of threat at
a particular time. At a minimum, a
security plan must cover personnel
security, unauthorized access to
shipments, and en route security.
In addition, the HM–232 final rule
requires all hazmat employees (as
defined in § 171.8 of the HMR) to
receive security awareness training that
provides an awareness of security risks
associated with hazardous materials
transportation and methods to enhance
transportation security. This training
must also include a component covering

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49745

how to recognize and respond to
possible security threats.
As part of DOT’s effort
comprehensively to enhance hazardous
materials transportation security,
FMCSA is conducting a field
operational test (FOT) to quantify the
security costs and benefits of an
operational concept that applies
technology and improved enforcement
procedures to hazardous materials
transportation by motor carriers. The
FOT will demonstrate an approach that
enhances the safety and security of
hazardous materials shipments from
origin to destination by examining
possible vulnerabilities in the
transportation system. In parallel with
the FOT, FMCSA will also conduct an
independent evaluation to ascertain
whether the FOT met the objective of
ensuring the safety and security of
hazardous materials shipments. This
evaluation will also include a benefitcost analysis on the security
technologies tested, including remote
vehicle tracking systems, remote vehicle
disabling systems, off-route alert
systems, and electronic ignition locks.
We expect to begin the FOT in the fall
of 2003 and complete the FOT and
evaluation by September 2004.
In a related action, on July 16, 2002,
RSPA and FMCSA jointly published an
advance notice of proposed rulemaking
(ANPRM) under docket HM–232A to
examine the need for enhanced security
requirements for hazardous materials
transportation that would be in addition
to the security requirements adopted
under HM–232 (67 FR 46622). The
ANPRM sought comments on the
feasibility of specific security
enhancements and the potential costs
and benefits of deploying such
enhancements. Security measures under
consideration include escorts, vehicle
tracking and monitoring systems,
emergency warning systems, remote
shut-offs, direct short-range
communications, and pre-notification of
shipments to state and local authorities.
RSPA is currently evaluating
comments received in response to the
HM–232A ANPRM to determine if
additional security rulemaking is
necessary. This evaluation will include
an examination of the security threats
posed by specific classes and quantities
of hazardous materials and an
assessment of the effectiveness of
specific operational or technological
measures in reducing security threats.
Persons who may be affected by the
proposals in this NPRM should be
aware that the ongoing research and
rulemaking projects described above
may result in modifications to the
proposals in this NPRM.

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules

Transportation Security
Administration/Department of
Homeland Security will continue to
evaluate security issues, and in the
future, may issue additional standards
relating to security issues raised in this
rulemaking.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The 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 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 relating to
hazardous material permitting. The
FMCSA has estimated costs and benefits
for three policy/regulatory options.
These estimates are discussed in detail
in the full regulatory evaluation
contained in the docket. Option 1, the
statutory option, is the one preferred by
FMCSA. It is an option involving a
limited listing of HM included by
Congress in earlier rulemaking
considerations. It is anticipated that the
economic impact of this rule,
implementing option 1, would be $0.6
million in the first year and $10.5
million in each subsequent year. The
total discounted cost estimates are $74.5
million over 10 years. The costs and
benefits for this NPRM are discussed
below.
Permit Applications. Industry costs
directly tied to obtaining a permit
include obtaining an application form,
completing the information requested
on the form, and submitting the form to
FMCSA. Using data from RSPA on
carriers that are registered with DOT
under the provisions of 49 CFR Part 107
(FY 2002, most recent year available),
FMCSA estimates that 2,434 carriers
will be subject to this proposed rule.
FMCSA estimates that it will take
carriers 2 hours to obtain and complete
the initial permit application at a total
cost per carrier of $42 ($15 per hour
plus fringe benefits). There are no
permit application fees under the
proposed program. The industry would
thus incur an estimated $102,228 in
permit application costs. This is a one
time non-recurring cost.
Permit renewal applications would be
required every two years. The estimated
burden to complete a renewal
application is 15 minutes per carrier per
year. This involves gathering some
information and checking off a few

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additional boxes on the MCS–150 Form.
Using the same unit cost of $15 per hour
plus fringe benefits, the annual costs to
industry are estimated at $12,789.
Safety Record Standards Compliance.
FMCSA data show that 1,865 motor
carriers subject to the requirements
proposed in this rule do not currently
possess a satisfactory safety rating and
will need to obtain one as part of the
permit process. This includes carriers
without a current safety rating and those
whose most recent safety ratings were
unsatisfactory or conditional. Carriers
who transport HRCQ or radioactive
materials (RAM) are assumed to have
met the safety record requirements of
this rule through their compliance with
regulations imposed by the Department
of Energy and the Nuclear Regulatory
Commission. FMCSA assumes that a
typical carrier will spend $182
preparing for the compliance review
necessary to obtain a new safety rating.
This includes 2 hours for the carrier’s
safety director and 6 hours for a clerk
to gather and process the necessary
information. The total one-time nonrecurring permit application and safety
compliance costs to industry are,
therefore, estimated to be $339,430.
Operational Costs. The proposed rule
imposes four requirements on carriers
that will result in increased costs, most
of which will recur annually. The rule
requires that drivers must be able to
contact the carrier and/or law
enforcement in emergencies. While
many carriers employ sophisticated
satellite communication systems,
FMCSA assumes that cell-phone type
service will meet these requirements
and that 90 percent of the vehicles in
service already have such a device. The
service life of the communications
equipment is assumed to be 10 years.
Utilizing data from the 1997 Vehicle
Inventory and Use Survey (VIUS),
FMCSA estimates the total number of
vehicles affected by the proposed
regulations to be 12,500. Ten percent of
these vehicles will require new
equipment, estimated at $100 per
vehicle, as well as a communications
service plan, estimated at $60 per
month. The one-time non-recurring
communication requirement cost to
industry is expected to be $125,000
(1,250 vehicles × $100/vehicle) and
$900,000 annual cost in subsequent
years (1,250 vehicles × $60/month × 12
months).
Under current requirements for the
Commercial Vehicle Safety Alliance
(CVSA) Level VI inspections, point of
origin inspections are conducted on all
shipments of HRCQ or radioactive
materials (RAM). Carriers of these HM
are required to have route plans and

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satisfy conditions for expeditious
delivery. As such, HM carriers would
not incur extra costs under the proposed
permit program to satisfy point-of-origin
inspections and route plan
requirements.
The proposed rule requires carriers to
develop and maintain route plans and
ensure that route verification contact
numbers are carried on the vehicle so
that law enforcement could verify the
correct location of the shipment. It is
believed that the carrier’s representative
responsible for developing the route
plans would be the one to ensure the
numbers are placed in the vehicles and
available for inspection. It was also
assumed that the same individual
would ensure that the permit
verification number is placed in the
vehicle. A unit cost of $5.25 per
shipment was based on an hourly rate
of $21 (including fringe benefits) for a
clerk and 15 minutes to complete the
task and was derived from comments to
the joint FMCSA/RSPA ANPRM entitled
‘‘Security Requirements for Motor
Carriers Transporting Hazardous
Materials,’’ published July 16, 2002 (67
FR 46622) (FMCSA Docket No. 2002–
11650). FMCSA realizes that some
shipments are moved along the same
routes repeatedly between given origins
and destinations and new route plans
would not need to be generated each
year for these shipments. Further, the
HM permits would be valid for two
years and the carrier contact numbers
are not expected to change frequently, if
at all. Therefore, developing route plans
and providing verification contact
numbers and permit numbers in the
vehicles are assumed to be repeated for
only 50 percent of the shipments in a
given year. The annual number of
shipments, 1,221,144, were estimated
with FMCSA data and VIUS data on the
number of vehicles transporting
different HM and assumptions regarding
the anticipated number of trips per
vehicle per year. Class 1.1, 1.2, and 1.3
and HRCQ RAM shipments were
excluded as they already meet the
proposed requirements. The estimated
annual costs for industry compliance is
$3,205,503 ([1,221,144 annual
shipments] × [1⁄2of shipments requiring
action] × [$5.25/shipment]).
The cost to a carrier to document and
maintain written communication
records between itself and its drivers
assumes 15 minutes of a clerk’s time per
shipment. All shipments are considered
to require this documentation. The
estimated annual cost for this
requirement is $6,411,006 ([1,221,144
annual shipments] × [$5.25/shipment]).
Benefits. The benefits of the proposed
HM permit program include improved

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules
safety due to reductions in accidental
and intentional HM releases. Secondary
benefits were also considered. Among
the secondary benefits is the reduction
in incident delays, evacuations, product
losses, property damages,
environmental damages and cleanups.
For accidental releases, incident cost
estimates for specific hazard classes
from a prior FMCSA risk study were
combined with estimates of the number
of crashes expected to occur annually in
each hazard class among the permitted
shipments. FMCSA assumes that the
safety elements of the proposed
permitting program will reduce the
number of HM incidents among
permitted shipments by 25 percent.
Therefore, the expected annual benefit
from reducing accidental HM releases is
$2,025,000.
The potential benefits of reducing
intentional releases due to increased
security measures are consistent with
those analyzed in the NPRM for HM–
232. The security measures under the
HM–232 NPRM are consistent with, and
applicable to, the proposed permitting
program. Therefore, a separate analysis
of the benefits of security was not
conducted.
It is difficult to accurately ascertain
the direct benefit of this proposal
insofar as its impact upon reducing the
malicious use of hazardous materials in
transportation. To begin with, the actual
costs that an averted terrorist attack of
this nature would have imposed, and its
probability of success with and without
these measures, is unknowable.
Terrorism is a fairly new phenomenon,
and we have little notion of a likelihood
function under the current conditions
for HM transportation or under this
proposal regarding hazardous materials
permitting procedures. Similarly, we
have little idea of the expected cost of
a terrorist attack, given that one occurs.
So although the theory for calculating
the benefit is straightforward and
simple, finding actual data for a future
attack is not possible.
For purposes of this analysis and
given the lack of data in this area,
FMCSA has assigned 1/1000 as the
probability that this proposal would be
decisive in stopping an incident
involving the malicious use of
hazardous materials. FMCSA interprets
this to mean that this proposal would
result, over the next 1,000 years, in one
additional year that is free from a
malicious hazardous materials incident
than would have occurred without these
procedures. Interpreted differently,
FMCSA estimates that this proposal
would completely foil one of the next
1,000 attempted malicious hazardous
materials incidents. FMCSA interprets

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this to mean that this proposal would
make each attempted malicious
hazardous materials incident less likely
to inflict its intended damage.
Alternately, one could interpret this to
mean that these procedures will
completely foil one of the next 1,000
attempted malicious hazardous
materials incidents.
Next, 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 and the costs of other
recent terrorist attacks occurring in the
past ten years. Please refer to the
regulatory evaluation for this
rulemaking, Hazardous Materials Carrier
Permitting Program; Benefit-Cost
Analysis of Permitting Options, for a
more detailed discussion of how the
scaled estimate was derived).
Finally, we multiplied the scaled
estimate of the cost of a malicious
hazardous materials incident by the
probability estimate as follows: $25
billion × .001 =$25 million. Therefore,
FMCSA estimates that this proposal
would result in a direct benefit of $25
million each year for the ten-year
planning horizon, insofar as it relates to
a malicious hazardous materials
incident. When calculating total
benefits, these should be discounted
using a standard 7% rate. We limit the
analysis to ten years to conform to
FMCSA analytical standards. (FMCSA
uses a 10-year time frame for all its
regulatory analyses to allow
comparability from one rule to another.)
There is no reason to believe that the
benefits would stop unless the policy
underlying this proposed rulemaking
was to be changed.
Therefore, the combined annual direct
benefit of this proposal would be $27
million ($2 million (rounded) + $25
million). FMCSA invites comments
from the public to assess any potential
costs or burdens that may be associated
with this proposal.
Executive Order 13175 (Tribal
Consultation)
The FMCSA has analyzed this action
under Executive Order 13175, dated
November 6, 2000, and believes that the
proposed rule would not have
substantial direct effects on one or more
Indian tribes; would not impose
substantial direct compliance costs on
Indian tribal governments; and would
not preempt tribal law. Therefore, a
tribal summary impact statement is not
required.

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Executive Order 13211 (Energy Supply,
Distribution, or Use)
FMCSA has analyzed this proposed
rule under Executive Order 13211,
‘‘Actions Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use.’’ FMCSA has
preliminarily determined that this
action would not be a significant energy
action under that 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, tribal governments, and the
private sector. Any agency 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. The
FMCSA has determined that the
changes proposed in this rulemaking
would not have an impact of $100
million or more in any one year.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5
U.S.C. 601–612) requires each agency to
analyze proposed regulations and assess
their impact on small businesses and
other small entities to determine
whether the proposed rule is expected
to have a significant impact on a
substantial number of small entities.
Based on the assessment in the
accompanying regulatory evaluation,
and the absence of contradictory
information submitted to the docket
during the public comment period,
FMCSA certifies that the proposals in
this rulemaking are not applicable to a
substantial number of small businesses.
The definition of ‘‘small businesses’’
has the same meaning as under the
Small Business Act, established by the
Small Business Administration (SBA),
Office of Size Standards and codified in
13 CFR 121.201 . The FMCSA evaluated
the effects of this proposed rule on
small business entities, including as
applicable small businesses, small nonprofit organizations, and small
governmental entities with populations
under 50,000. Many of these small
business entities operate as motor
carriers of property in interstate or
intrastate commerce.

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Goal of the SNPRM. FMCSA is
required by the Hazardous Materials
Transportation Uniform Safety Act
(HMTUSA) of 1990 to develop and
implement a new motor carrier safety
permit program. The safety permit
program is intended to enhance the
safety and security of certain hazardous
materials shipments that, if released
either accidentally or intentionally
during transportation, have the potential
to kill or injure large numbers of people
and damage property and the
environment.
Description of Actions. This SNPRM
identifies specific fitness, financial and
regulatory criteria for interstate and
intrastate motor carriers to qualify and
obtain a safety permit from FMCSA.
Criteria 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 specific hazardous
materials covered by this permit
program are: highway route-controlled
quantities of a Class 7 radioactive
material; more than 25 kg (55 pounds)
of a Division 1.1, 1.2, or 1.3 (explosive)
material; more than one liter (1.08
quarts) per package of extremely toxicby-inhalation hazardous material; and
compressed or refrigerated liquid
methane or natural gas in bulk
packaging of 13,248 liters (3,500 water
gallons) or more.
Identification of potentially affected
small entities. The proposed rule would
affect intrastate and interstate carriers of
hazardous materials. 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 in their registration system
based on the number of employees or
annual revenue. Of the 2,434 total
carriers expected to be affected by this
proposed rule, 1,816 have been
estimated to be small entities.
In addition to small carriers, other
small businesses and small entities
potentially could be affected by the
proposed permit system. Small
businesses that provide services to small
carriers, offer hazardous materials for
transportation, or receive shipments
could also be affected by the proposed
rule. The customers and suppliers of
small carriers could be adversely
affected if a carrier were prohibited from
shipping certain hazardous materials
because a permit was denied or revoked.
Similarly, local government entities
such as police could be affected by the
proposed hazardous materials
permitting requirements. Local police

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would be notified anytime three or more
hours elapsed after the last time that a
communication was received from the
driver of a hazardous materials vehicle
covered by the permit. 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
the permit program is implemented. It
has been determined that 1,816 small
motor carriers will be affected by the
statutory requirements of this rule.
Based on an expert judgment, the
number of small businesses affected by
this rule, excluding small motor
carriers, was determined by doubling
the number of small carriers affected by
the statutory requirements. The
application of expert judgment suggests
that there could easily be two or more
of these entities for each of the small
carriers affected. Therefore, it is
estimated that as many as
approximately 4,000 small businesses
could potentially be affected by the rule.
Reporting and recordkeeping
requirements. This SNPRM proposes
several new or modified recordkeeping
requirements. While they have not been
fully defined, they are detailed in the
section of this preamble entitled
‘‘Paperwork Reduction Act.’’ FMCSA
has built flexibility into the proposed
requirements, so that entities can choose
the method by which they comply with
the proposals. For example, there is no
prescribed method of communication
between the driver and the carrier.
Carriers are permitted to use any system
which meets the performance criteria
specified. Similarly, there are no
specifications for the manner in which
carriers develop and maintain route
plans, allowing either electronic or
paper-based approaches to be used.
Entities can assess their own situations
and tailor the requirements to fit them.
Related Federal rules and regulations.
If this rule is adopted as proposed,
FMCSA will eliminate possible conflict
with two pieces of legislation: 49 U.S.C
5119 and U.S.C. 5105(e). 49 U.S.C. 5119
authorizes states to participate in the
Alliance. The FMCSA intends to
automatically issue a Federal permit to
a carrier that obtains a permit from a
State that is part of the Alliance program
or another state that has a program
equivalent to the Federal permit
program in operation. Therefore, a
comparable state program will be
deemed equivalent to the Federal HM
Permit Program and no statutory
conflict will exist. The other area is the
Point of Origin Inspections for Highway
Route Controlled Quantities (HRCQ)
shipments that are required by 49 U.S.C.

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5105(e). These inspections are currently
being conducted via the CVSA Level VI
Enhanced Radioactive Materials
Inspection Program. This current
program would fulfill the requirements
of this proposed rule and thus prevent
any statutory conflict.
Alternate proposals for small
businesses. The Regulatory Flexibility
Act directs agencies to establish
exceptions and differing compliance
standards for small businesses, where it
is possible to do so and still meet the
objectives of applicable regulatory
statutes. There are no significant
alternatives to the proposed rule that
would accomplish the stated proposed
HM permitting rule and which would
minimize any significant economic
impact of the proposed rule on small
entities. Alternative permitting systems,
such as that of the Alliance program,
could address national permitting needs
if expanded to include all states, but the
effects on small entities would be the
same as under the proposed rule
because the same requirements and
provisions would be in effect.
We developed this SNPRM under the
assumption that small businesses make
up the majority of entities that will be
subject to its provisions. Thus, we
considered how to minimize the
expected compliance costs as we
developed this SNPRM.
Based on the discussion of the
potential costs of this SNPRM in the
section of this preamble entitled
‘‘Executive Order 12866 and DOT
Regulatory Policies and Procedures,’’
FMCSA certifies that although this
rulemaking would impose a significant
economic impact on those small
business entities, these small entities do
not represent a substantial number of
small businesses within the trucking
industry. The Research and Special
Programs Administration (RSPA)
identifies the small carriers in their
registration system based on the number
of employees or annual revenue,
consistent with the Small Business
Administration’s Small Business Size
Standards, which are matched to the
North American Industry Classification
System (NAICS). FMCSA estimates the
costs to a small carrier to comply with
this proposed rule to be $4,512 in the
initial year, and $4,093 in subsequent
years. A summary and breakdown of
these first-year and annual costs is
shown in Table 1. Note that the number
of shipments was determined by using
data provided by FMCSA in conjunction
with U.S. Census Bureau Vehicle
Inventory and Use Survey (VIUS) data
for the number of trucks transporting
particular HM, and assumptions
regarding the anticipated number of

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules
trips per vehicle per year.
Communication requirements were
assumed to be satisfied with a cellphone-type service. Costs were
calculated based on the assumption that
90 percent of the vehicles already have
such a device and only 10 percent of the
total vehicles will need new devices.
Additionally, the table shows that the

cost for route plans, route verification
contact numbers, and permit
verification is only half that of
communication recordkeeping
requirements. This is because the route
planning activities are applied to only
one half of shipments. Divisions 1.1 and
1.2 and HRCQ of RAM were excluded
because all shipments of these materials

49749

have routing requirements under
current DOT regulations. Finally, the
unit cost is assumed to be a clerk’s
hourly pay of $15/hour plus fringe
benefits (40%) for a total of $21/hour. A
unit cost of $5.25 represents fifteen
minutes of a clerk’s labor.

TABLE 1.—COST SUMMARY PER SMALL CARRIER
Cost per carrier for first
year

Cost per carrier for successive years

Permit related activity

Unit cost

Permit application ............................................................................................................
Permit renewal .................................................................................................................
Safety record compliance ................................................................................................
Communication requirements ..........................................................................................

$42.00
N/A
182
1,640

N/A
$5.25
N/A
1,440

Route plans; route verification contact numbers; permit verification ..............................
Communication record keeping requirements .................................................................

$21/hour ....................
21/hour ......................
182/carrier .................
100/vehicle, 60/month
service.
5.25/shipment ............
5.25/shipment ............

883
1,765

883
1,765

Total Cost per Small Carrier ....................................................................................

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

4,512

4,093

Paperwork Reduction Act
We submitted the information
collection and recordkeeping
requirements contained in this SNPRM
to the Office of Management and Budget
(OMB) for approval under the
provisions of the Paperwork Reduction
Act of 1995, Section 1320.8(d). Title 5,
Code of Federal Regulations requires
FMCSA to provide interested members
of the public and affected agencies an
opportunity to comment on information
collection and recordkeeping requests.
Under the Paperwork Reduction Act, no
person is required to respond to an
information collection unless it has
been approved by OMB and displays a
valid OMB control number.
FMCSA currently has an approved
information collection under OMB
Control No. 2126–0013, ‘‘Motor Carrier
Identification Report’’ with 74,250
burden hours and $0 cost. There will be
an increase in the burden for OMB
Control No. 2126–0013 due to extension
of the data collection requirements to
intrastate motor carriers that transport
the permitted hazardous materials.
Using RSPA registration data, it is
estimated that 797 intrastate motor
carriers will be required to comply with
this current data collection, with an
annual burden per carrier of 2 hours. In
addition, there will be a new
information collection burden for the
new requirement to submit initial and
renewal permit applications. This new
information collection, ‘‘Hazardous
Materials Safety Permits,’’ will be
assigned an OMB control number after
review and approval by OMB.

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The new information collection
requires that the carriers provide
estimates of the anticipated annual
shipments. It is assumed that this
information would be readily available
for large carriers, which would apply an
inflationary estimate to the prior year’s
number from their database. Small
carriers would either have a ready
estimate (due to a limited number of
shipments) or, more likely, could
determine their prior year shipment
totals from data they are required to
maintain to support their reporting
under the International Fuel Tax
Agreement (IFTA) and International
Registration Plan (IRP).
The burden to provide estimates of
anticipated shipments are as follows:
small carriers—30 minutes and large
carriers—15 minutes. It is estimated that
an additional 0.25 burden hours (15
minutes) per carrier will be required to
complete the permit application form,
including information, such as, carrier
name and address, DOT number, etc.
This results in a total burden of 1,671
hours as follows: [1,816 small carriers
(596 intrastate + 1,220 interstate) × 0.75
hours per carrier = 1,362 hours] + [618
large carriers (201 intrastate + 417
interstate) × 0.50 hours = 309 hours].
Permit renewal will require carriers
only to check-off a few additional boxes
on the new MCS–150B Form as well as
providing estimates of the annual
shipments. The burden hours to checkoff the additional boxes on MC–150B
Form are considered negligible. The
time required to gather the required
information for the permit renewal is
considered to be part of the time in
estimating the number of shipments.

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The proposed permitting program
requires that carriers develop and
maintain route plans and ensure that
route verification contact numbers are
carried in the vehicle. These provisions
would add an average burden of 0.25
hour per day per carrier. The total
burden hours were estimated assuming
260 working days in a year, based on an
average of five working days per week—
and one shipment per day on average.
FMCSA realizes that some shipments
are moved along the same routes
repeatedly between given origins and
destinations and new route plans would
not need to be generated each year for
these shipments. Further, the HM
permits would be valid for two years
and the carrier contact numbers are not
expected to change frequently, if at all.
Therefore, in estimating the burden
hours involved in developing route
plans and providing verification contact
numbers and permit numbers on the
vehicles, it was assumed that this
activity will be repeated for only 50
percent of the shipments in a given year
or 130 days per year [i.e., 0.5 × 260 =
130 days]. Thus, the burden hours for
this activity is estimated as 79,105 hours
[i.e., 2,434 (797 intrastate + 1,637
interstate) × 32.5 hours (0.25 hours per
day × 130 days per year) = 79,105
hours].
The proposed permitting program also
requires carriers to maintain written
records of the communication between
drivers and the carriers. The types of
information required includes time of
communication, HM transported,
vehicle, and reasons for any
communication lapses. While drivers
and carriers are required under the

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules

proposed permitting program to be in
frequent contact, this requirement
places an additional reporting burden
on the carriers. It is assumed that
recording and maintaining these
communications between the driver and

(0.25 hours per day × 260 days per year)
= 158,210 hours].
The total burden hours for the
proposed rule are summarized in Table
2.

carrier adds a burden of 0.25 hour per
day on average per carrier. The total
burden hours were similarly estimated
assuming 260 working days in a year to
be 158,210 hours as follows: [2,434 (797
intrastate + 1,637 interstate) × 65 hours

TABLE 2.—FIRST-YEAR BURDEN HOURS
Carriers
Intrastate
Increased reporting under OMB Control No. 2126–0013 ...
Annual shipment estimates:
Small carriers ................................................................
Large carriers ................................................................
Written route plans, verification number details, copy of
permits ..............................................................................
Maintaining communications records ..................................
Total ..............................................................................

In subsequent years, we estimate that
burden hours would include the permit
renewal application and the time to
provide shipment estimates, route
plans, and communication records as

Burden hours

Interstate

Total

Per carrier

Total

797

N/A

797

2

1,594

596
201

1,220
417

1,816
618

0.75
0.50

1,362
309

797
797

1,637
1,637

2,434
2,434

32.5
65

79,105
158,201

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

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

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

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

240,580

indicated above. Given the biennial
renewal process, the burden hours for
application renewal and shipment
estimates would be half as many in
subsequent years. However, the burden

hours for maintaining route plans and
communication records will be the same
for all years. Subsequent-year burden
hour estimates are shown in Table 3.

TABLE 3.—SUBSEQUENT-YEAR BURDEN HOURS
Carriers
Intrastate
Increased reporting under OMB Control No. 2126–0013 ...
Annual shipment estimates:
Small carriers ................................................................
Large carriers ................................................................
Written route plans, verification number details, copy of
permit: ...............................................................................
Maintaining communications records ..................................
Total ..............................................................................

We estimate that the new total
information collection and
recordkeeping burden resulting from the
additional Motor Carrier Identification
Reports and permit applications under
this rule are as follows.
Motor Carrier Identification Report
[OMB No. 2126–0013]
Total Annual Number of
Respondents: 275,297.
Total Annual Responses: 275,297.
Total Annual Burden Hours: 75,844.
Total Annual Burden Cost: $0.
Hazardous Materials Permit
[OMB No. 2126–xxxx]
First Year Annual Burden:
Total Annual Number of
Respondents: 2,434.
Total Annual Responses: 1,835,367.
Total Annual Burden Hours: 240,580.
Total Annual Burden Cost: $0.
Subsequent Year Burden:

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Burden hours

Interstate

Total

Total

797

N/A

797

1

797

596
201

1,220
417

1,816
618

0.375
0.25

681
154.5

797
797

1,637
1,637

2,434
2,434

32.5
65

79,105
158,210

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

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

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

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

238,151

Total Annual Number of
Respondents: 2,434.
Total Annual Responses: 1,835,367.
Total Annual Burden Hours: 238,151.
Total Annual Burden Cost: $0.
Send comments to the 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 necessary for the FMCSA to meet its
goals of reducing truck crashes,
including whether the information is
useful to this goal; the accuracy of the
estimate of the burden of the
information collection; 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

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techniques or other forms on
information technology.
National Environmental Policy Act
FMCSA has performed an
Environmental Assessment that is
available for review in the public docket
on the DMS Web site, http://
dms.dot.gov. Based on the assessment,
FMCSA has determined that this
SNPRM rule does not have any
significant negative impacts to the
environment and may result in a net
benefit from increased protection and
monitoring of hazardous materials
shipments. Therefore, we find that there
are no significant environmental
impacts associated with this SNPRM.
The agency solicits comments on this
issue.

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules
Executive Order 12988 (Civil Justice
Reform)

Constitutionally Protected Property
Rights.

This action would meet 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 12372
(Intergovernmental Review)

Executive Order 12612 (Federalism)
This proposed action has been
analyzed in accordance with the
principles and criteria contained in
Executive Order 13132 dated August 4,
1999, as discussed under ‘‘State
permits,’’ above, where the applicable
law and the concerns previously
expressed by State officials are set forth.
Federal hazardous material
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
that a State permit program is
equivalent to the Federal requirements,
no preemption issues would arise. To
the extent that there are differences
between Federal and non-Federal
requirements, the preemption
provisions in 49 U.S.C. 5125 will
continue to apply to non-Federal permit
requirements, just as those criteria have
applied in the past.
For these reasons, FMCSA believes
that nothing in this proposed rule, if
adopted, will directly preempt any State
law or regulation or have a substantial
direct effect or sufficient federalism
implications that would limit the
policymaking discretion of the States.
FMCSA invites States and other
interested parties to comment on
whether they believe any State permit
requirement would be affected by the
adoption of this proposed rule.
Executive Order 13045 (Protection of
Children)
We have analyzed this action under
Executive Order 13045, ‘‘Protection of
Children from Environmental Health
Risks and Safety Risks’’ (April 23, 1997,
62 FR 1985). This proposed rule is not
an economically significant rule because
the FMCSA has determined that the
proposed rule, if adopted, will not
present an environmental risk to health
or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of
Private Property)
This proposed rule would not effect a
taking of private property or otherwise
have taking implications under
Executive Order 12630, Governmental
Actions and Interference with

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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 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 Federalfund recipients the steps those
recipients can take to avoid
administering programs in a way that
results in discrimination on the basis of
national origin. Thus, we believe that
this proposed action complies with the
principles enunciated in the Executive
Order.
List of Subjects
49 CFR Part 385
Administrative practice and
procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting
and recordkeeping requirements; Safety
fitness procedures.
49 CFR Part 390
Highway safety, Intermodal
transportation, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
49 CFR Part 397
Administrative practice and
procedure, Highway safety,
Intergovernmental relations, Motor
carriers, Parking, Radioactive materials,
Reporting and recordkeeping
requirements, Tires.
In consideration of the foregoing, the
Federal Motor Carrier Safety
Administration proposes to amend 49
CFR chapter III as set forth below:
PART 385—SAFETY FITNESS
PROCEDURES [AMENDED]
1. Revise the authority citation for
part 385 to read as follows:

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49751

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

2. Amend § 385.1 by redesignating
paragraph (c) as paragraph (d) and by
adding a new paragraph (c) to read as
follows:
§ 385.1

Purpose and scope.

*

*
*
*
*
(c) This part establishes the safety
permit program for a motor carrier to
transport the types and quantities of
hazardous materials listed in § 385.403
of this part.
*
*
*
*
*
3. Add a new subpart E to this part
385 to read as follows:
Subpart E—Hazardous Materials Safety
Permits
Sec.
385.401 What are the definitions of terms
used in this subpart?
385.403 Who must hold a safety permit?
385.405 How does a motor carrier apply for
a safety permit?
385.407 What conditions must a motor
carrier satisfy for FMCSA to issue a
safety permit?
385.409 When may a temporary safety
permit be issued to a motor carrier?
385.411 Must a motor carrier obtain a safety
permit if it has a State permit?
385.413 What happens if a motor carrier
receives a proposed safety rating that is
less than satisfactory?
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 the 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 are the definitions of terms
used in this subpart?

(a) The definitions in parts 390 and
385 of this subchapter 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 as
capable of posing an unreasonable risk
to health, safety, and property when
transported in commerce, and has
designated as hazardous under section
5103 of Federal hazardous materials

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transportation law (439 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 49 CFR 172.101), and
materials that meet the defining criteria
for hazard classes and divisions in part
173 of subchapter C of this chapter.
Hazmat employee has the same
meaning as under § 171.8 of this title, a
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 which transports
hazardous materials in commerce. This
term includes an individual, including
a self-employed individual, employed
by a hazmat employer 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 safety of
transporting 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% 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(a) of this
subpart.
Shipment means the offering or
loading of hazardous material at one
loading facility using one transport
vehicle, or the transport of that transport
vehicle.

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;
(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; or
(d) A shipment of liquefied natural
gas in a packaging having a capacity
equal to or greater than 13,248 L (3,500
gallons).

§ 385.403

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

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
subchapter, 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)

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§ 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,
HM Permit Application. If the motor
carrier does not have a current U.S. DOT
identification number, it must also
submit Form MCS–150, Motor Carrier
Identification Report (see § 390.19 of
this subchapter). A new entrant must
also submit Form MCS–150A, Safety
Certification for Application for U.S.
DOT 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 them, 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 St. SW., Washington, DC 20590,
Telephone: 1–800–802–5668.
(c) Signature and certification. An
official of the motor carrier must sign
each of these forms and certify that the
information is correct.
(d) Updating information on Form
MCS–150B. A motor carrier that holds a
safety permit must report to the FMCSA
in writing any change in the information
on its Form MCS–150B, within 30 days
of the change, using the contact
information in paragraph (b) of this
section.

(a) Satisfactory safety rating. The
motor carrier must have a ‘‘satisfactory’’
safety rating assigned by either FMCSA,
pursuant to the Safety Fitness
Procedures of part 385 of this
subchapter, 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 part 385 of this subchapter.

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(b) Satisfactory security program. The
motor carrier must establish that it has
a satisfactory security program,
including:
(1) A security plan meeting the
requirements of part 172, subpart I of
this title. The security plan must
address how the carrier will ensure the
security of the written route plan
required by this part;
(2) A communications system
installed on each motor vehicle used to
transport a hazardous material listed in
§ 385.403(a) of this subpart that enables
the vehicle operator to immediately
contact the motor carrier during the
course of transportation of the
hazardous material, and each operator
must be trained in the use of the
communications system; and
(3) Hazmat employees who have all
successfully completed the security
training required in § 172.704(a)(4) of
this title.
(c) Registration with RSPA. The motor
carrier must be registered with RSPA in
accordance with subpart G of part 107
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 have a safety
fitness rating, FMCSA may issue 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, the FMCSRs, or comparable
State regulations, and the minimum
financial responsibility requirements in
part 387 of this subchapter or State
regulations, whichever is applicable.
(b) FMCSA will not issue a temporary
safety permit to a motor carrier that
meets any of the following conditions.
The motor carrier:
(1) Does not certify that it has a
satisfactory security program as required
in § 385.407(b) of this subpart;
(2) Has a crash rate in the top 30% of
the national average as found in the
FMCSA Motor Carrier Management
Information System (MCMIS);
(3) Has a driver, vehicle, hazardous
material, or total out-of-service rate in
the top 30% of the national average as
found in the FMCSA MCMIS; or
(4) Is on the FMCSA SafeStat List A,
B, C, or D.
(c) A temporary safety permit shall be
valid for 270 days after the date of
issuance or until the motor carrier is
assigned a safety rating, whichever
occurs first.
(1) A motor carrier that receives a
satisfactory safety rating will be issued
a safety permit.
(2) A motor carrier that receives a less
than satisfactory safety rating, is

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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 270-day time
period, the 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 is
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 of this subpart, 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 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 of this subpart).
§ 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
motor vehicle that transports a
hazardous material listed in § 385.403(a)
of this subpart and, upon request, made
available to an authorized official of a
Federal, State, or local government
agency:
(1) A copy of the safety permit or
another document showing the permit
number;
(2) A written route plan that meets the
requirements of § 397.101 of this
subchapter (for Class 7 (radioactive)
materials) or § 397.67 of this subchapter
(for non-radioactive materials); and
(3) The telephone number of an
employee of the motor carrier who has
a copy of the route plan required in
paragraph (a)(2) of this section and is
able to determine whether the motor
vehicle is on the route specified in that
route plan. This phone number must be
monitored by the motor carrier at all
times the vehicle is in transit.

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(b) 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 following requirements:
(1) The inspection must be performed
by a inspector who—
(i) Is employed by or under contract
to a Federal, State, or local government,
and
(ii) Has completed a commercial
vehicle inspection-training program of
at least 104 hours in duration, including
24 hours on the inspection of vehicles
transporting HRCQ of Class 7
(radioactive) materials and conducting
radiological surveys.
(2) The inspection must determine
whether the motor carrier, driver(s) and
the motor vehicle are in compliance
with requirements governing:
(i) Commercial driver’s licenses, in
part 383 of this subchapter;
(ii) Qualifications and hours of service
of drivers, in parts 391 and 395 of this
subchapter, or compatible State
requirements that are applicable;
(iii) The mechanical condition of the
vehicle, in parts 393 and 396 of this
subchapter, or compatible State
requirements that are applicable;
(iv) The requirements in the
Hazardous Materials Regulations (49
CFR parts 171 through 180) and
compatible State requirements
applicable to the acceptance and
transportation of a highway route
controlled quantity of a Class 7
(radioactive) material, including the
limits for external radiation, heat, and
contamination specified in §§ 173.441,
173.442, and 173.443 of this title;
(v) Registration and payment of the
registration fee, in subpart G of part 107
of this title; and
(vi) Requirements for motor carriers
and drivers, in subpart D of part 397 of
this title.
(3) If any violation of the
requirements in paragraph (b)(2) of this
section is discovered, the vehicle may
not begin transportation until the
violation has been corrected. If any
violation of the requirements in
paragraph (b)(2)(iii) of this section is
discovered, the vehicle must be placed
‘‘out of service’’ and may not be moved
until completion of all repairs necessary
for compliance with the requirements in
paragraph (b)(2)(iii) of this section.
(4) If the inspector determines that the
driver(s) and vehicle are in compliance
with all the requirements set forth in

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49753

paragraph (b)(2) of this section, the
inspector shall affix to the vehicle a
decal indicating the nature of the
inspection and containing the date of
the inspection. This decal must be
removed upon delivery of the shipment
to the consignee.
(c) Additional requirements. (1) The
operator of a motor vehicle used to
transport a hazardous material listed in
§ 385.403(a) of this subpart must:
(i) Follow the written route plan
required by paragraph (a)(2) of this
section, unless an alternate route is
required by a law enforcement official
or emergency conditions (in which case
the operator must amend the written
route plan to show the deviation); and
(ii) At least once each two hours
during transportation of a hazardous
material for which a safety permit is
required, and any time there is a
deviation from the written route plan
required by paragraph (b) of this section,
communicate with the motor carrier by
means of the communications system
required by § 385.407(b)(2) of this
subpart.
(2) The motor carrier must contact law
enforcement authorities at any time
more than three hours have elapsed
since the last communication from the
operator of a motor vehicle used to
transport a hazardous material listed in
§ 385.403(a) of this subpart. The motor
carrier must maintain a record for 6
months after the initial acceptance of a
shipment of hazardous material for
which a safety permit is required,
containing the name of the operator,
identification of the vehicle, 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
operator including a statement of the
facts or conditions that prevented
communication for more than two
hours.
§ 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(a) of this
subpart 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:

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

(a) Grounds. A safety permit will be
subject to revocation or suspension by
the 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 (3) of this
subchapter;
(2) A motor carrier provides any false
or misleading information on its
application (Form MCS–150B), Form
MCS–150A (when required), or an
update of information on its Form MCS–
150B (see § 385.405(e) of this subpart);
(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) of this subpart;
(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 that shows that the motor
carrier is not fit to transport or offer for
transportation the hazardous materials
listed in § 385.403(a) of this subpart;
(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 that shows that the motor
carrier is not fit to transport or offer for
transportation the hazardous materials
listed in § 385.403(a) of this subpart;
(8) A motor carrier fails to maintain
the minimum financial responsibility
required by § 387.9 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

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of this subchapter for failure to pay a
civil penalty or abide by a payment
plan.
(b) Effective date of suspension or
revocation. A suspension or revocation
of a safety permit is effective:
(1) immediately when FMCSA
determines that an imminent hazard
exists, when FMCSA issues a final
safety rating that is less than
satisfactory, or when 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) 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) of this
subpart, when the motor carrier submits
a written request for administrative
review of FMCSA’s proposal to suspend
or revoke a safety permit.
§ 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 of this part, and (2) a change to
a proposed safety rating based on
corrective action, as set forth in § 385.17
of this part. 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 subchapter. The
decision by FMCSA’s Chief Safety
Officer in the show cause proceeding
constitutes final agency action, and a
motor carrier has no right to further
administrative review of FMCSA’s

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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 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:
FMCSA Chief Safety Officer, Federal
Motor Carrier Safety Administration,
c/o Adjudications Counsel (Room
8302A), 400 Seventh Street, SW.,
Washington, DC 20590.
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
rules in Part 386 of this subchapter that
are considered appropriate).

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(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.
4. Appendix B to Part 385 is amended
by adding to the List of Acute and
Critical Regulations under Paragraph VII
the following information in numerical
order between §§ 171.16 and 177.800:
APPENDIX B TO PART 385—
EXPLANATION OF SAFETY RATING
PROCESS
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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 in-depth
security awareness training (critical).
§ 172.800(b) Offering or 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 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 (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 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).

4a. Appendix B to to Part 385 is
amended by adding to the List of Acute
and Critical Regulations under
Paragraph VII the following information
in numerical order after § 177.800(c):
§ 177.801 Accepting for transportation or
transporting a forbidden material (acute).

4b. Appendix B to Part 385 is
amended by adding to the List of Acute
and Critical Regulations under

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Paragraph VII the following information
in numberical order after § 177.823(a):
§ 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 or 1.2
(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).

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PART 390—FEDERAL MOTOR
CARRIER SAFETY REGULATIONS;
GENERAL
5. 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.
§ 390.3

General applicability.

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(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) Subparts A, C, and E of Part 385,
for carriers subject to the requirements
of § 385.403(a) of this subchapter.
(2) Part 386, Rules of practice for
motor carrier, broker, freight forwarder,
and hazardous materials proceedings.
(3) Part 387, Minimum Levels of
Financial Responsibility for Motor
Carriers, to the extent provided in
§ 387.3 of this subchapter.
(4) Section 390.19, Motor carrier
identification report, and § 390.21,
Marking of CMVs, for carriers subject to
the requirements of § 385.403(a) of this
subchapter. Intrastate motor carriers
operating prior to January 1, 2005, are
excepted from § 390.19(a)(1).
PART 397—TRANSPORTATION OF
HAZARDOUS MATERIALS; DRIVING
AND PARKING RULES [AMENDED]
7. The authority citation for Part 397
continues to read as follows:
Authority: 49 U.S.C. 322, 5112; 49 CFR
1.73. Subpart A also issued under 49 U.S.C.
5103, 31136, 31502, and 49 CFR 1.53.
Subparts C, D, and E also issued under 49
U.S.C. 5112, 5125.

8. Amend § 397.67 to revise paragraph
(d) to read as follows:

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Federal Register / Vol. 68, No. 160 / Tuesday, August 19, 2003 / Proposed Rules
Motor carrier responsibility for

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(d) Before a motor carrier requires or
permits the operation of a motor vehicle
containing any of the following
hazardous materials, the carrier or its
agent shall prepare and furnish to the
vehicle operator a written route plan
that complies with this section:
(1) A Division 1.1, 1.2, or 1.3
(explosive) material (see § 173.50 of this
title);
(2) 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); or
(3) A shipment of liquefied natural
gas in a bulk packaging (see § 171.8 of
this title) having a capacity equal to or
greater than 13,248 L (3,500 gallons) for
liquids or gases.
Issued on: August 11, 2003.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 03–20887 Filed 8–18–03; 8:45 am]
BILLING CODE 4910–EX–P

DEPARTMENT OF TRANSPORTATION
National Highway Traffic Safety
Administration
49 CFR Part 571
[Docket No. NHTSA 03–15097; Notice 1]

Federal Motor Vehicle Safety
Standards; Occupant Crash Protection
AGENCY: National Highway Traffic
Safety Administration (NHTSA),
Department of Transportation.
ACTION: Denial of petition.
SUMMARY: This notice denies a petition
for rulemaking from DaimlerChrysler
Corporation requesting that the agency
amend Federal Motor Vehicle Safety
Standard (FMVSS) No. 208, ‘‘Occupant
crash protection,’’ to allow for the
deactivation of passenger air bags
through the use of certain features of the
child restraint lower anchorages
described in FMVSS No. 225, ‘‘Child
restraint anchorage systems.’’ This was
proposed both in lieu of, and in
addition to, a manual passenger air bag
on-off switch. The agency has analyzed
the main issues surrounding the
petitioner’s request in the context of
current and future air bag requirements.
This notice completes agency
rulemaking on that petition.
FOR FURTHER INFORMATION CONTACT: For
non-legal issues, you may contact Lori

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Summers, Office of Crashworthiness
Standards. Telephone: (202) 366–4917,
Facsimile: (202) 493–2739.
For legal issues, you may contact
Rebecca MacPherson, Office of the Chief
Counsel. Telephone: (202) 366–2992,
Facsimile: (202) 366–3820.
SUPPLEMENTARY INFORMATION:
I. Background
In 1995, vehicle manufacturers were
beginning to install, and would soon be
required to install, right front passenger
air bags in all passenger cars and light
trucks. At that time, the National
Highway Traffic Safety Administration
(NHTSA) believed that placing a rear
facing child safety system (RFCSS) in
the front seat of passenger air bagequipped vehicles would have the
potential for producing harmful effects.
The agency’s laboratory tests had shown
that when RFCSSs were placed in the
front seat of a passenger air bagequipped vehicle, they extended
forward to a point near the instrument
panel where they could be struck by a
deploying air bag and have the potential
to cause serious injury to infants. This
possibility was particularly acute when
caregivers had no other choice because
the rear seats of the vehicle were too
small to accommodate the RFCSS or
because the vehicle was not equipped
with a rear seat.
As a countermeasure to this potential
safety problem, the agency amended
FMVSS No. 208, ‘‘Occupant crash
protection,’’ on May 23, 1995 (60 FR
27333) to allow manufacturers the
option of installing an on-off switch that
motorists could use to deactivate the
front passenger-side air bag in vehicles
that have no rear seat or a rear seat too
small to accommodate a RFCSS. A
yellow telltale light was also required to
indicate when the passenger air bag was
deactivated. On January 6, 1997, the
agency published a Final Rule (62 FR
798) extending the allowance for on-off
switches until September 1, 2000, and
this was further extended to September
1, 2012 in the May 12, 2000 Final Rule
regarding advanced air bag requirements
(65 FR 30680).
In addition to the manual on-off
switch extension, the FMVSS No. 208
Final Rule regarding advanced air bags
added requirements for minimizing air
bag risk to infants in RFCSS and car
beds, and children in forward-facing
child safety seats. The requirements
allow manufacturers to meet one of two
options: Option 1—Automatic
Suppression Feature, or Option 2—Low
Risk Deployment .1 Advanced air bag
1 NOTE: Manufacturers are required to pick a
certification option for each of the three child

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systems designed to meet the
requirements are expected to work
automatically. Once installed, the
device should require no action on the
part of the occupant. For example, if an
automatic suppression system
recognizes the presence of a RFCSS in
the right front passenger seat, the air bag
should automatically not deploy. We
note that vehicle manufacturers are not
restricted in their choice of technology.
Unlike the earlier on-off switch
requirements, there are no restrictions
limiting installation of suppression
systems to vehicles that have no rear
seat or have rear seats that are too small
to accommodate a RFCSS.
Currently FMVSS No. 225, ‘‘Child
restraint anchorage systems,’’ mandates
that if a vehicle does not have an air bag
on-off switch meeting the requirements
of S4.5.4 of FMVSS No. 208, it shall not
have a child restraint anchorage system
installed at a front designated seating
position. The on-off switch
requirements in S4.5.4 of FMVSS No.
208 specify, among other things, that the
on-off device be operable by means of
the ignition key for the vehicle.
II. DaimlerChrysler’s Petition
On November 16, 1999,
DaimlerChrysler Corporation
(DaimlerChrysler) petitioned NHTSA to
amend FMVSS No. 208, to allow for the
deactivation of passenger air bags
through the use of certain features of the
child restraint lower anchorages
described in FMVSS No. 225.
DaimlerChrysler believes the attachment
should be permitted as a substitute for,
or in addition to, a manual on-off
switch.
DaimlerChrysler stated they were
considering the development of a
system that would sense the presence of
a RFCSS held in place with components
(identified in FMVSS No. 213, ‘‘Child
restraint systems’’) for attaching to the
child restraint lower anchorages
described in FMVSS No. 225. In
addition to sensing RFCSSs, the system
would also deactivate the passenger air
bag when forward facing child safety
systems equipped with similar
components are installed in the front
seat. According to DaimlerChrysler, air
bag deactivation would be
accomplished and assured by the act of
installing the child safety system
attachment components onto the
anchorages described in FMVSS No.
225. The attachment components would
be detected by a switch actuator that is
occupant categories: 12-month-old infant, 3-yearold and 6-year-old child. The 3-year-old and 6-yearold child categories also have a third option for
dynamic automatic suppression.

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