[Federal Register Volume 70, Number 170 (Friday, September 2, 2005)]
[Rules and Regulations]
[Pages 52296-52299]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-17464]



[[Page 52296]]

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DEPARTMENT OF TRANSPORTATION

National Highway Traffic Safety Administration

23 CFR Part 1327

[Docket No. NHTSA-05-22265]
RIN 2127-AJ66


Procedures for Participating in and Receiving Data From the 
National Driver Register Problem Driver Pointer System Pursuant to a 
Personnel Security Investigation and Determination

AGENCY: National Highway Traffic Safety Administration (NHTSA), 
Department of Transportation (DOT).

ACTION: Interim final rule; request for comments.

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SUMMARY: This interim final rule amends the agency's National Driver 
Register (NDR) regulations to implement an amendment to the National 
Driver Register Act of 1982. The amendment authorizes a Federal 
department or agency that investigates an individual for the purpose of 
determining the individual's eligibility to access national security 
information to request and receive information from the National Driver 
Register, upon request and consent of the individual. This interim 
final rule establishes the procedures for individuals to request and 
for the Federal department or agency to receive NDR information.0

DATES: This interim final rule becomes effective on September 30, 2005. 
Comments on this interim final rule are due no later than November 1, 
2005.

FOR FURTHER INFORMATION CONTACT: For program issues: Mr. Sean McLaurin, 
Chief, National Driver Register, NPO-124, National Highway Traffic 
Safety Administration, 400 Seventh Street, SW., Washington, DC, 20590. 
Telephone: (202) 366-4800. For legal issues: Mr. Roland (R.T.) Baumann 
III, Attorney-Advisor, Office of the Chief Counsel, NCC-113, National 
Highway Traffic Safety Administration, 400 Seventh Street, SW., 
Washington, DC, 20590. Telephone: (202) 366-1834.

SUPPLEMENTARY INFORMATION:

I. Background

A. National Driver Register

    The National Driver Register (NDR) is a central file of information 
on individuals whose license to operate a motor vehicle in a State has 
been denied, revoked, suspended, or canceled, for cause, or who have 
been convicted of certain serious traffic-related violations in a 
State, such as racing on the highway or driving while impaired by 
alcohol or other drugs. The NDR was designed to prevent such 
individuals from obtaining a driver's license in another State, using a 
device known as the Problem Driver Pointer System (PDPS).
    The PDPS consists of a list of problem drivers (with certain 
identifying information) contained in ``pointer'' records. These 
records ``point'' to the State where the substantive adverse records 
about the driver can be obtained. The PDPS system is fully automated 
and enables State driver licensing officials to determine 
instantaneously whether another State has taken adverse action against 
a license applicant.

B. National Driver Register Act of 1982

    The NDR Act of 1982, as amended, 49 U.S.C. 30301, et seq., 
authorizes State chief driver licensing officials to request and 
receive information from the NDR for driver licensing and driver 
improvement purposes. When an individual applies for a driver's 
license, for example, these State officials are authorized to request 
and receive NDR information to determine whether the applicant's 
driver's license has been withdrawn for cause or the applicant has been 
convicted of specific offenses in another State. Because the NDR is a 
nationwide index, State chief driver licensing officials need only 
submit a single inquiry to obtain this information.
    State chief driver licensing officials also are authorized under 
the NDR Act to request NDR information on behalf of other NDR users for 
specific transportation safety purposes. The NDR Act authorizes the 
following entities to receive NDR information for limited 
transportation purposes: the National Transportation Safety Board and 
the Federal Highway Administration for accident investigation purposes; 
employers and prospective employers of motor vehicle operators; the 
Federal Aviation Administration (FAA) regarding any individual who 
holds or has applied for an airman's certificate; air carriers 
regarding individuals who are seeking employment with the air carrier; 
the Federal Railroad Administration (FRA) and employers or prospective 
employers of locomotive operators; and the U.S. Coast Guard regarding 
any individual who holds or who has applied for a license, certificate 
of registry, or a merchant mariner's document. The Act also allows 
individuals to learn whether information about themselves is on the NDR 
file and to receive any such information.
    The NDR statute allows the head of a Federal department or agency 
authorized to receive information regarding an individual from the NDR 
to request and receive such information from the Secretary of 
Transportation. 49 U.S.C. 30305(b)(11). This provision, by its 
operation, affords direct access to the NDR to identified Federal 
departments and agencies (through NHTSA), without the need to submit an 
inquiry to a State driver licensing official. In practice, virtually 
all Federal departments or agencies with specific access provisions 
have submitted inquiries directly to NHTSA.

C. Recent Amendment to National Driver Act of 1982

    On October 28, 2004, Public Law 108-375 amended the NDR Act of 
1982. Section 1061 of Public Law 108-375 allows ``[a]n individual who 
has or is seeking access to national security information for purposes 
of Executive Order No. 12968, or any successor Executive order, or an 
individual who is being investigated for Federal employment under 
authority of Executive Order No. 10450, or any successor Executive 
order, [to] request the chief driver licensing official of a State to 
provide [NDR] information about the individual * * * to a Federal 
department or agency that is authorized to investigate the individual 
for the purpose of assisting in the determination of the eligibility of 
the individual for access to national security information or for 
Federal employment in a position requiring access to national security 
information.'' This interim final rule amends the NDR regulations, 23 
CFR Part 1327, to incorporate procedures governing access to NDR 
information to assist in personnel security investigations.

II. Procedures for Requesting and Receiving NDR Information for 
Personnel Security Investigations

    Under the interim final rule, the procedures that a Federal 
department or agency performing personnel security investigations of 
individuals must follow to receive NDR information are similar to those 
followed by the FAA, the FRA, and the U.S. Coast Guard in checking 
their applicants for employment or certification.
    The Federal department or agency may not, itself, initiate a 
request for NDR information. Rather, the individual subject to a 
personnel security investigation must do so. To initiate a request, the 
individual must either complete, sign and submit a request to

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the chief driver licensing official of a State for an NDR file search 
or authorize the Federal department or agency to request the chief 
driver licensing official to conduct the NDR file search by providing a 
written and signed consent. Just as in NDR requests for traffic safety 
purposes, the request or written consent must state that NDR records 
are being requested; state specifically who is authorized to receive 
the records; be dated and signed by the individual; and state that it 
is recommended (but not required) that the Federal department or agency 
verify matches with the state of record. Consistent with a specific 
statutory restriction concerning personnel security investigations, it 
must also state that the authorization is valid only during the 
performance of the security investigation.
    In accordance with Public Law 108-375, requests to transmit NDR 
information to the Federal department or agency (made either directly 
by individuals or through a written consent) may be submitted through a 
State chief driver licensing official. Since all 50 States and the 
District of Columbia currently participate in the NDR PDPS, requests 
may be submitted to any of the chief driver licensing officials.
    Because Federal departments or agencies that perform personnel 
security investigations are afforded the specific right to receive NDR 
information, they are subject to the provision that allows them to 
request and receive such information from the Secretary of 
Transportation. Hence, they need not submit a request to the State 
chief driver licensing official. Consistent with past practice for 
safety related requests, we expect virtually all requests from Federal 
departments or agencies that perform personnel security investigations 
will be sent directly to NHTSA.
    To implement these procedures, the interim final rule amends the 
NDR regulation at 23 CFR 1327.5, setting forth requirements that States 
must follow to accept NDR inquiries submitted to a chief driver 
licensing official. The interim final rule also amends the regulatory 
sections at 23 CFR 1327.6 and 1327.7, setting forth procedures for NDR 
inquiries submitted directly to the agency. To make clear that a 
covered personnel security investigation is limited to an investigation 
for the purpose of assisting in the determination of eligibility for 
access to national security information or for Federal employment in a 
position requiring access to national security information, the interim 
final rule adds a definition of ``personnel security investigation'' to 
23 CFR 1327.3.

Interim Final Rule

    This document is published as an interim final rule. Accordingly, 
the changes to part 1327 described above become effective on September 
30, 2005. No further regulatory action by NHTSA is necessary to make 
these changes effective.
    Publication as an interim final rule, without prior notice and 
opportunity for comment, is necessary to permit individuals subject to 
background investigations for security clearances to submit requests to 
the NDR and Federal departments or agencies to receive NDR information 
as soon as possible. The changes made to the regulation in this interim 
final rule are minor and simply reflect the statutory amendments 
enacted by Public Law 108-375. These changes create procedures that are 
nearly identical to existing regulatory procedures being followed by 
the States, by airmen, by seamen/merchant mariners, and by others in 
the field of transportation safety, which were previously subjected to 
notice and opportunity for comment.

Statutory Basis for This Rule

    This interim final rule implements a NDR access provision mandated 
by the Ronald W. Reagan National Defense Authorization Act for Fiscal 
Year 2005 (Pub. L. 108-375, Section 1061). The NDR Act of 1982 (Pub. L. 
97-364) provides general authority to issue regulations regarding 
access to the PDPS.

Comments

    NHTSA requests comments on these regulatory changes. All comments 
submitted in response to this document will be considered by the 
agency. Following the close of the comment period, NHTSA will publish a 
document responding to the comments, and if appropriate, will further 
amend the provisions of 23 CFR part 1327. However, the interim final 
rule published today is effective upon publication.
    Interested persons are invited to comment on this interim final 
rule. It is requested, but not required, that two copies be submitted. 
All comments must be limited to 15 pages in length. Necessary 
attachments may be appended to those submissions without regard to the 
15-page limit. (See 49 CFR 553.21). This limitation is intended to 
encourage commenters to detail their primary arguments in a concise 
fashion.
    You may submit your comments by one of the following methods:
    (1) By mail to: Docket Management Facility, Docket No. NHTSA-05-
XXXX, DOT, 400 Seventh Street, SW., Nassif Building, Room PL-401, 
Washington, DC 20590;
    (2) By hand delivery to: Room PL-401 on the Plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday;
    (3) By fax to the Docket Management Facility at (202) 493-2251; or
    (4) By electronic submission: log onto the DMS Web site at http://dms.dot.gov and click on ``Help and Information'' or ``Help/Info'' to 
obtain instructions.
    All comments received before the close of business on the comment 
closing date will be considered and will be available for examination 
in the docket at the above address. To the extent possible, comments 
filed after the closing date will also be considered. However, the 
rulemaking action may proceed at any time after that date. The agency 
will continue to file relevant material in the docket as it becomes 
available after the closing date, and it is recommended that interested 
persons continue to examine the docket for new material.
    You may review submitted comments in person at the Docket 
Management Facility located at Room PL-401 on the Plaza level of the 
Nassif Building, 400 Seventh Street, SW., Washington, DC, between 9 
a.m. and 5 p.m., Monday through Friday.
    You may also review submitted comments on the Internet by taking 
the following steps:
    (1) Go to the DMS Web page at http://dms.dot.gov/search/.
    (2) On that page, click on ``search''.
    (3) On the next page (http://dms.dot.gov/search/) type in the four 
digit docket number shown at the beginning of this notice. Click on 
``search''.
    (4) On the next page, which contains docket summary information for 
the docket you selected, click on the desired comments. You may also 
download the comments. Although the comments are imaged documents, 
instead of word processing documents, the ``pdf'' versions of the 
documents are word searchable.
    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

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65, Number 70; Pages 19477-78) or you may visit http://dms.dot.gov.
    Those persons who wish to be notified upon receipt of their 
comments in the docket should enclose, in the envelope with their 
comments, a self-addressed stamped postcard. Upon receiving the 
comments, the docket supervisor will return the postcard by mail.

Regulatory Analyses and Notices

Executive Order 12988 (Civil Justice Reform)
    This action does not have any preemptive or retroactive effect. 
This action meets applicable standards in sections 3(a) and 3(b)(2) of 
Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.
Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures
    Executive Order 12866, ``Regulatory Planning and Review'' (58 FR 
51735, October 4, 1993) provides for making determinations on whether a 
regulatory action is ``significant'' and therefore subject to Office of 
Management and Budget (OMB) review and the requirements of the 
Executive Order. The agency has considered the impact of this action 
under Executive Order 12866 and determined that it is not significant. 
The action is also not significant under the Department of 
Transportation's regulatory policies and procedures. The changes in 
this interim final rule merely reflect amendments contained in Public 
Law 108-375 providing NDR access to another group of NDR individuals--
individuals who are subject to personnel security investigations. 
Because Public Law 108-375 provides specific NDR access to Federal 
departments or agencies performing personnel security investigations 
and because the NDR Act allows Federal agencies with specific access 
provisions to submit them directly to the Secretary of Transportation 
(by delegation, to NHTSA), we do not anticipate that this action will 
increase significantly the number of NDR inquiries processed by State 
driver licensing officials. Most, if not all, such inquiries will 
likely be submitted to NHTSA. Accordingly, a full regulatory evaluation 
is not required.
Regulatory Flexibility Act
    The Regulatory Flexibility Act of 1980 (Pub. L. 96-354, 5 U.S.C. 
601-612) 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 that the action would not have a 
significant impact on a substantial number of small entities. 
Accordingly, the preparation of a Regulatory Flexibility Analysis is 
not required.
Paperwork Reduction Act
    There are reporting requirements contained in the regulation that 
this interim final rule is amending that are considered to be 
information collection requirements, as that term is defined by the 
Office of Management and Budget (OMB) in 5 CFR part 1320. This interim 
final rule does not change the reporting requirements for participating 
States or the procedures to be followed by individuals who request NDR 
information. These requirements have been submitted previously to and 
approved by OMB, pursuant to the Paperwork Reduction Act (44 U.S.C. 
3500, et seq.). These requirements have been approved through July 30, 
2006, under OMB No. 2127-0001.
National Environmental Policy Act
    The agency has reviewed this action for the purposes of the 
National Environmental Policy Act (42 U.S.C. 4321, et. seq.) and has 
determined that it would not have a significant impact on the quality 
of the human environment.
The Unfunded Mandates Reform Act
    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531) requires 
Federal agencies to prepare a written assessment of the costs, 
benefits, and other effects of proposed rules that include a Federal 
mandate likely to result in the expenditure by State, local, or tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation) in any one year. This 
interim final rule may require that some States driver licensing 
officials process additional inquiries submitted to them for purposes 
of personnel security investigations. However, because the statute 
allows this type of inquiry to be submitted directly to the Secretary 
of Transportation (by delegation, to NHTSA), we do not anticipate that 
States will face a significant increase in NDR requests and, therefore, 
in associated costs. Most, if not all, such requirements will likely be 
submitted to NHTSA. Accordingly, this action does not require an 
assessment under this law.
Executive Order 13132 (Federalism)
    This action has been analyzed in accordance with the principles and 
criteria contained in the Executive Order 12612, and it has been 
determined that this action does not have sufficient federalism 
implications to warrant preparation of a Federalism Assessment. 
Accordingly, a Federalism Assessment is not required.
Executive Order 13175 (Consultation and Coordination With Indian Tribal 
Governments)
    The agency has analyzed this action under Executive Order 13175, 
and has determined that the action would not have a substantial direct 
effect 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.
Executive Order 13045, Economically Significant Rules 
Disproportionately Affecting Children
    This rule is not subject to E.O. 13045 because it is not 
``economically significant'' as defined under E.O. 12866, and does not 
concern an environmental, health or safety risk that NHTSA has reason 
to believe may have a disproportionate effect on children.
Regulation Identifier Number (RIN)
    A regulation identifier number (RIN) is assigned to each regulatory 
section listed in the Unified Agenda of Federal Regulations. The 
Regulatory Information Service Center publishes the Unified Agenda in 
April and October of each year. The RIN contained in the heading of 
this document can be used to cross-reference this section with the 
Unified Agenda.

List of Subjects in 23 CFR Part 1327

    Highway safety, Intergovernmental relations, and Reporting and 
recordkeeping requirements.

0
In consideration of the foregoing, the agency amends title 23 of CFR 
part 1327 as follows:

PART 1327--PROCEDURES FOR PARTICIPATING IN AND RECEIVING 
INFORMATION FROM THE NATIONAL DRIVER REGISTER PROBLEM DRIVER 
POINTER SYSTEM

0
1. The authority citation for part 1327 continues to read as follows:

    Authority: Pub. L. 97-364, 96 Stat. 1740, as amended (49 U.S.C. 
30301 et seq.); delegation of authority at 49 CFR 1.50.


0
2. Amend Sec.  1327.3 by redesignating paragraphs (o) through (y) as 
paragraphs

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(p) through (z) and by inserting new paragraph (o) to read as follows:


Sec.  1327.3  Definitions.

* * * * *
    (o) Personnel security investigation means an investigation of an 
individual for the purpose of assisting in the determination of the 
eligibility of the individual for access to national security 
information under the authority of Executive Order No. 12968, or any 
successor Executive order, or for Federal employment in a position 
requiring access to national security information under the authority 
of Executive Order No. 10450, or any successor Executive order.
* * * * *
0
3. Amend Sec.  1327.5 by redesignating paragraph (d) as (e) and by 
inserting new paragraph (d) to read as follows:


Sec.  1327.5  Conditions for becoming a participating State.

* * * * *
    (d) Personnel security investigations. The chief driver licensing 
official of a participating State shall provide for and establish 
routine procedures and forms to accept requests for NDR file checks 
from individuals subject to personnel security investigations and from 
Federal departments or agencies that are authorized to perform 
personnel security investigations. These authorized users may receive 
information from the NDR file through participating States.
    (1) The procedures or forms developed by the chief driver licensing 
official to facilitate NDR searches for these authorized users shall 
provide for the request to be made by the individual or by the Federal 
department or agency if the individual first consented to the search in 
writing. Any request to the chief driver licensing official and any 
written consent by the individual shall:
    (i) State that NDR records are to be released;
    (ii) Specifically state who is authorized to receive the records;
    (iii) Be signed and dated by the individual or individual's legal 
representative;
    (iv) Specifically state that the authorization is valid only for 
the duration of the personnel security investigation; and
    (v) Specifically state that it is recommended, but not required, 
that the authorized recipient of the information verify matches with 
the State of Record.
    (2) Any request made by a Federal department or agency may include, 
in lieu of the actual information described in paragraphs (d)(1)(i) (C) 
through (E) of this section, a certification that a written consent was 
signed and dated by the individual or the individual's legal 
representative, specifically stated that the authorization is valid 
only for the duration of the personnel security investigation, and 
specifically stated that it is recommended, but not required, that the 
authorized recipient of the information verify matches with the State 
of Record.
    (3) The chief driver licensing official shall provide to the 
authorized user a response indicating either Probable Identification 
(match) or No Record Found. In the case of probable identification, the 
State of Record will also be included in the response so that the 
Federal department or agency may obtain additional information 
regarding the individual's driving record.
* * * * *

0
4. Amend Sec.  1327.6 by redesignating paragraphs (h) through (i) as 
paragraphs (i) through (j) and by inserting new paragraph (h) to read 
as follows:


Sec.  1327.6  Conditions and procedures for other authorized users of 
the NDR.

* * * * *
    (h) Federal departments or agencies conducting personnel security 
investigations. (1) To initiate an NDR file check, an individual who 
has or is seeking access to national security information for purposes 
of Executive Order No. 12968, or any successor Executive order, or an 
individual who is being investigated for Federal employment under 
authority of Executive Order No. 10450, or any successor Executive 
order shall follow the procedures specified in Sec.  1327.7
    (2) Upon receipt of the NDR information, the Federal department or 
agency should make information from the State of Record available to 
the individual for review and comment.
    (3) In the case of a match (probable identification), the Federal 
department or agency conducting the personnel security investigation 
should obtain the substantive data relating to the record from the 
State of Record and verify that the person named on the probable 
identification is in fact the individual concerned before using the 
information as the basis for any action against the individual.
    (4) A Federal department or agency that receives information about 
an individual under this section may use such information only for 
purposes of the authorized investigation and only in accordance with 
applicable law.
* * * * *

0
5. Amend Sec.  1327.7 by revising paragraphs (a) introductory text, 
(d)(4), and (d)(5) to read as follows:


Sec.  1327.7  Procedures for NDR information requests.

    (a) To initiate an NDR file check, an individual who is employed or 
seeking employment as a motor vehicle operator; who has applied for or 
received an airman's certificate; who is employed or seeking employment 
as a locomotive operator; who holds or has applied for a license, 
certificate of registry, or a merchant mariner's document or is an 
officer, chief warrant officer, or enlisted member of the U.S. Coast 
Guard or Coast Guard Reserve; or who is seeking employment as pilot 
with an air carrier; or an individual subject to a personnel security 
investigation; shall either:
* * * * *
    (d) * * *
* * * * *
    (4) Specifically state that the authorization is valid for only one 
search of the NDR (or in the case of a personnel security investigation 
state that the authorization is valid only for the duration of the 
investigation); and
    (5) Except for inquiries concerning personnel security 
investigations, specifically state that the NDR identifies probable 
matches that require further inquiry for verification; that it is 
recommended, but not required, that the employer/prospective employer 
verify matches with the State of Record; and that individuals have the 
right to request records regarding themselves from the NDR to verify 
their accuracy.

    Issued on: August 26, 2005.
Jeffrey W. Runge,
Administrator.
[FR Doc. 05-17464 Filed 9-1-05; 8:45 am]
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