03-5288. Organization and Delegation of Powers and Duties, Update of Secretarial Delegations

AGENCY:

Office of the Secretary, DOT.

ACTION:

Final rule.

SUMMARY:

The Office of the Secretary of Transportation (OST) is updating the delegations of authority from the Secretary to the Administrator of the Federal Motor Carrier Safety Administration (FMCSA) and to the Under Secretary of Transportation for Security. By this action, the Secretary revokes the delegation of authority to the Federal Motor Carrier Safety Administrator to carry out the provisions of 49 U.S.C. 5103a related to security risk determinations and delegates the authority to the Under Secretary of Transportation for Security to reflect the current organizational posture of the Department of Transportation and to facilitate the orderly transfer of the functions of the Transportation Security Administration (TSA), and the functions of the Secretary related thereto, to the Department of Homeland Security pursuant to section 403 of the Homeland Security Act (HSA).

EFFECTIVE DATE:

This final rule is effective on March 7, 2003.

FOR FURTHER INFORMATION CONTACT:

Ms. Patricia A. Burke, Office of the Chief Counsel, MC-CC, [phone], Federal Motor Carrier Safety Administration, U.S. Department of Transportation, 400 7th Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Electronic Access

An electronic copy of this document may be downloaded by using a computer, modem, and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at [phone]. Internet users may reach the Office of the Federal Register's home page at http://www.nara.gov/​fedreg and the Government Printing Office's database at: http://www.access.gpo.gov/​nara. You can also view and download this document by going to the webpage of the Department's Docket Management System (http://dms.dot.gov). On that webpage, click on “search.” On the next page, type in the four-digit docket number shown on the first page of this document. Then click on “search.”

Background

Section 1012 of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 2001, [Public Law 107-56, 115 Stat. 272 at 396, (October 26, 2001)], amended title 49 United States Code, by adding a new section 5103a, relating to limitations on issuance of licenses to individuals who operate motor vehicles transporting hazardous materials in commerce. Section 5103a(a)(1) provides that “a State may not issue to any individual a license to operate a motor vehicle transporting in commerce a hazardous material unless the Secretary of Transportation has first determined, upon receipt of a notification under subsection (c)(1)(B), that the individual does not pose a security risk warranting denial of the license.”

Section 101 of the Aviation and Transportation Security Act, (ATSA)[Public Law 107-71, 115 Stat. 597, (November 19, 2001)], amended title 49 United States Code, by adding a new section 114, creating the TSA and providing that the Under Secretary shall be responsible for security in all modes of transportation, including security responsibilities not only over aviation security, but over other modes of transportation that are exercised by the Department. See 49 U.S.C. 114(d)(2). On December 28, 2001, the Secretary of Transportation issued a final rule amending Part 1 of title 49 CFR, to reflect the new DOT operating administration and its general responsibilities and on July 23, 2002, the TSA issued a final rule (49 CFR 1502.1) stating the responsibilities of the Under Secretary of Transportation for Security, including security responsibilities over all modes of transportation. The Secretary's decision to transfer primary responsibility over the security determination function to TSA takes into account the statutory changes brought about by the ATSA and the HSA. However, the FMCSA will continue to have § 5103a related responsibilities under the commercial driver's license (CDL) program (49 U.S.C. 31305(a)(5)(C)). The revised delegations more accurately reflect the respective roles and responsibilities of the two administrations.

This final rule updates the delegations of authority from the Secretary to the FMCSA Administrator and the Under Secretary of Transportation for Security to reflect the organizational posture of the Department. As such, the final rule is ministerial in nature and relates only to Departmental management, organization, procedure, and practice. Since this amendment relates to departmental organization, procedure and practice, notice and comment are unnecessary under 5 U.S.C. 553(b).

Furthermore, this rule does not impose substantive requirements on the public. Also, this final rule facilitates the Department of Transportation's ability to orderly transfer the functions of the TSA and the functions of the Secretary related thereto to the Department of Homeland Security pursuant to section 403 of the Homeland Security Act of 2002. Consequently, the Department finds that there is good cause under 5 U.S.C. 553(d)(3) to make this rule effective on the date of publication in the Federal Register.

Regulatory Analyses and Notices

A. Executive Order 12866 and DOT Regulatory Policies and Procedures

The final rule is not considered a significant regulatory action under Executive Order 12866 and the Regulatory Policies and Procedures of the Department of Transportation (44 FR 11034). There are no costs associated with this rule.

B. Executive Order 13132

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, dated August 4, 1999. This final rule does not have a substantial direct effect on, or sufficient federalism implications for, the States, nor would it limit the policymaking discretion of the States. Therefore, the consultation and funding requirements do not apply.

C. Executive Order 13084

This final rule has been analyzed in accordance with the principles and criteria contained in Executive Order 13084 (“Consultation and Coordination with Indian Tribal Governments”). Because this final rule does not significantly or uniquely affect the communities of the Indian tribal governments and does not impose substantial direct compliance costs, the funding and consultation requirements of Executive Order 13084 do not apply.

D. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an agency to review regulations to assess their impact on small entities unless the agency determines that a rule is not expected to have a significant impact on a substantial number of small entities. I hereby certify this final rule, which amends the CFR to reflect a delegation of authority from the Secretary to the FMCSA Administrator and to the Undersecretary of Transportation for Security, will not have a significant economic impact on a substantial number of small businesses.

E. Paperwork Reduction Act

This rule contains no information collection requirements under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

F. Unfunded Mandates Reform Act

The Department has determined that the requirements of Title II of the Unfunded Mandates Reform Act of 1995 do not apply to this rulemaking.

List of Subjects in 49 CFR Part 1

• Authority delegations (Government agencies)
• Organization and functions (Government agencies)

In consideration of the foregoing, part 1 of Title 49, Code of Federal Regulations, is amended as follows:

PART 1—[AMENDED]

1. The authority citation for part 1 is revised to read as follows:

Authority: 49 U.S.C. 322; 46 U.S.C. 2104(a); 28 U.S.C. 2672, 31 U.S.C. 3711(a)(2); Pub. L. 101-552, 104 Stat. 2736; Pub. L. 106-159, 113 Stat. 1748; Pub. L. 107-56, 115 Stat. 396; Pub. L. 107-71, 115 Stat. 597.

2. Add § 1.68 to read as follows:

§ 1.68

Delegations to the Under Secretary of Transportation for Security for the Transportation Security Administration.

(a) Carry out the functions vested in the Secretary by 49 U.S.C. 5103a relating to security risk determinations for the issuance of licenses to operate motor vehicles transporting hazardous materials in commerce.

(b) [Reserved]

3.In § 1.73 revise paragraphs (d)(2) and (e) to read as follows:

§ 1.73

Delegations to the Administrator of the Federal Motor Carrier Safety Administration.

* * * * *

(d) * * *

(2) Carry out the functions vested in the Secretary by 49 U.S.C. 5112 relating to highway routing of hazardous materials; 49 U.S.C. 5109 relating to motor carrier safety permits, except subsection (f); 49 U.S.C. 5113 relating to unsatisfactory safety ratings of motor carriers; 49 U.S.C. 5125(a) and (c)-(f), relating to preemption determinations or waivers of preemption of hazardous materials highway routing requirements; 49 U.S.C. 5105(e) relating to inspections of motor vehicles carrying hazardous material; and 49 U.S.C. 5119 relating to uniform forms and procedures.

(e) Carry out the functions vested in the Secretary by 49 U.S.C. chapter 313 relating to commercial motor vehicle operators, including the requirement of section 31305(a)(5)(C) that States issue a hazardous materials endorsement to a commercial driver's license only after being informed pursuant to 49 U.S.C. 5103a that the applicant does not pose a security risk warranting denial of the license.

* * * * *

Issued in Washington, DC, on this 27th day of February, 2003.

Norman Y. Mineta,

Secretary of Transportation.