SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

FMCSA encourages you to participate by submitting comments and related materials.

Submitting Comments

If you submit a comment, please include the docket number for this notice (FMCSA-2023-0266), indicate the specific section of this document to which the comment applies, and provide a reason for your suggestions or recommendations. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.

To submit your comment online, go to www.regulations.gov and put the docket number “FMCSA-2023-0266” in the “Keyword” box, and click “Search.” When the new screen appears, click on the “Comment” button and type your comment into the text box in the following screen. Choose whether you are submitting your comment as an individual or on behalf of a third party and then submit. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 8 1/2 by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope. FMCSA will consider all comments and material received during the comment period.

Confidential Business Information (CBI)

CBI is commercial or financial information that is both customarily and actually treated as private by its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. If your comments responsive to the notice contain commercial or financial information that is customarily treated as private, that you actually treat as private, and that is relevant or responsive to the notice, it is important that you clearly designate the submitted comments as CBI. Please mark each page of your submission that constitutes CBI as “PROPIN” to indicate it contains proprietary information. FMCSA will treat such marked submissions as confidential under the Freedom of Information Act, and they will not be placed in the public docket of the notice. Submissions containing CBI should be sent to Brian Dahlin, Chief, Regulatory Evaluation Division, Office of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or via email at brian.g.dahlin@dot.gov. At this time, you need not send a duplicate hardcopy of your electronic CBI submissions to FMCSA headquarters. Any comments FMCSA receives not specifically designated as CBI will be placed in the public docket for this notice.

II. Legal Basis

FMCSA has authority under 49 U.S.C. 31136(e) and 31315(b) to grant exemptions from Federal Motor Carrier Safety Regulations (FMCSRs). FMCSA must publish a notice of each exemption request in the Federal Register (49 CFR 381.315(a)). The Agency must provide the public an opportunity to inspect the information relevant to the application, including the applicant's safety analyses.

The Agency must provide an opportunity for public comment on the request. The Agency reviews safety analyses and public comments submitted and determines whether granting the exemption would likely achieve a level of safety equivalent to, or greater than, the level that would be achieved by the current regulation (49 CFR 381.305(a)). The Agency must publish its decision in the Federal Register (49 CFR 381.315(b)). If granted, the notice will identify the regulatory provision(s) from which the applicant will be exempt, the effective period, and all terms and conditions of the exemption (49 CFR 381.315(c)(1)). If the exemption is denied, the notice will explain the reasons for the denial (49 CFR 381.315(c)(2)).

III. Background

Under 49 CFR 383.71(b), a State Driver Licensing Agency (SDLA) may issue a CDL or CLP only to an applicant who presents proof of United States citizenship or lawful permanent residency. If the applicant cannot present this proof, then the SDLA may issue the applicant a non-domiciled CDL or CPL instead, under 49 CFR 383.71(f). Thus, under 49 CFR 383.71, an individual who is a citizen of a FAS, who does not have status of lawful permanent residence, is not eligible for a CDL or CLP and may be issued only non-domiciled credentials.

The United States' relationships with the FAS are governed by agreements known as Compacts of Free Association (COFA). Under these agreements, citizens of the FAS may enter the United States as nonimmigrants, and, without obtaining a visa, they may remain in and work in the country indefinitely.^[1]

Under the REAL ID Act of 2005 ^[2] and its accompanying regulation 6 CFR part 37 promulgated by the Department of Homeland Security (DHS),^[3] REAL ID compliant States are permitted to issue REAL ID compliant driver's licenses and identification cards to certain individuals with nonimmigrant status. However, under 6 CFR 37.21(b)(1), if the individual has no end date to their authorized stay in the country, then the license or ID may be issued and valid for a maximum of one year. Because citizens of the FAS may remain in the country indefinitely, initially under this law, these individuals could be issued ( printed page 49267) REAL ID driver's licenses and ID cards lasting only one year.^[4]

Subsequently, Congress enacted a modifying statute entitled the REAL ID Act Modification for Freely Associated States Act,^[5] and DHS issued a corresponding amendment to its regulation. These changes permitted compliant States to issue full-term REAL ID licenses and ID cards to citizens of the FAS. When issuing this regulatory amendment, DHS also modified the identification documents that citizens of the FAS may present when applying for a REAL ID driver's license or ID card from a compliant State.^[6] Under its authority in 6 CFR 37.11(c)(1)(x), DHS stated that complying States may accept “a valid unexpired passport issued by the Republic of the Marshall Islands, the Republic of Palau, or the Federated States of Micronesia with an approved Form I-94 . . . documenting the applicant's most recent admission to the United States under the Compact of Free Association between the United States and the nation that issued the passport.” DHS further stated its allowance of these documents was “consistent with the intent of Congress.” ^[7]

Applicant's Request

Oregon seeks an exemption from the CDL “List of Acceptable Proofs of Citizenship or Lawful Permanent Residency” requirements in table 1 to 49 CFR 383.71 for citizens of the FAS. Oregon cited in its application the REAL ID Act Modification for Freely Associated States Act and the amended DHS regulations ensuring that citizens of the FAS residing in the United States are eligible for full-term REAL ID licenses and identification cards. According to Oregon, “citizens of the Freely Associated States are able to meet the domicile requirement described in [49 CFR] 383.71(b)(10)” and noted that “the [COFAs] provide for citizens of the Freely Associated States to reside and work indefinitely within the United States.”

Oregon requests that FMCSA grant the proposed exemption and authorize it to issue CDLs and CLPs to citizens of the FAS in accordance with State procedures in 49 CFR 383.73(a) and (b). Ordinarily, a person who is not a United States citizen must present a valid, unexpired Permanent Resident Card. For a person who is a citizen of a FAS, Oregon would instead accept a valid, unexpired passport issued by a FAS and an Arrival/Departure Record, meaning an I-94 or I-94A form, to prove that the individual has entered the United States lawfully. A copy of the Oregon's application for exemption is available for review in the docket for this notice.

IV. Request for Comments

In accordance with 49 U.S.C. 31315(b), FMCSA requests public comment from all interested persons on Oregon's application for an exemption from the requirement in table 1 to 49 CFR 383.71 for citizens of the FAS. All comments received before the close of business on the comment closing date indicated at the beginning of this notice will be considered and will be available for examination in the docket at the location listed under the ADDRESSES section of this notice. Comments received after the comment closing date will be filed in the public docket and will be considered to the extent practicable. In addition to late comments, FMCSA will also continue to file, in the public docket, relevant information that becomes available after the comment closing date. Interested persons should continue to examine the public docket for new material.