Rescission of 10-Day Agency Discretionary Period in Assigning Unsatisfactory Safety Ratings |
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Anne S. Ferro
Federal Motor Carrier Safety Administration
October 23, 2012
[Federal Register Volume 77, Number 205 (Tuesday, October 23, 2012)]
[Rules and Regulations]
[Pages 64759-64762]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-26044]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 385
[Docket No. FMCSA-2012-0262]
RIN 2126-AB55
Rescission of 10-Day Agency Discretionary Period in Assigning
Unsatisfactory Safety Ratings
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The FMCSA amends the Federal Motor Carrier Safety Regulations
to remove the provision indicating that the Agency will consider a 10-
day extension of the 45-day period after which passenger and hazardous
materials carriers must cease operation after receiving a proposed
unsatisfactory safety rating. The Agency previously discontinued this
practice as a matter of policy and now amends the regulation to be
consistent with the policy and the statutory language concerning this
matter. Although FMCSA will continue to review requests for upgrades of
proposed unsatisfactory safety rating for such carriers, the Agency
will no longer grant extensions to the 45-day period.
DATES: Effective November 23, 2012.
ADDRESSES: For access to the docket to read background documents,
including those referenced in this document, go to: Regulations.gov,
http://www.regulations.gov, at any time and insert FMCSA-2012-0262 in
the ``Keyword'' box, and then click ``Search.'' Docket Management
Facility, Room W12-140, DOT Building, 1200 New Jersey Avenue SE.,
Washington, DC 20590. You may view the docket online by visiting the
facility between 9 a.m. and 5 p.m. e.t., Monday through Friday except
Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. David Mancl, Enforcement Division,
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue
SE., Washington, DC 20590; telephone (202) 493-0442.
SUPPLEMENTARY INFORMATION:
Background Information and Discussion of This Final Rule
Background Information
Statutory History
The Motor Carrier Safety Act of 1990 (1990 Act) (section 15 of the
Sanitary Food Transportation Act of 1990, Pub. L. 101-500, 104 Stat.
1218) amended the Hazardous Materials Transportation Act to prohibit
motor carriers that receive unsatisfactory safety ratings from
operating CMVs, as defined in section 204(1) of the Motor Carrier
Safety Act of 1984, to transport (1) quantities of hazardous materials
for which vehicle placarding is required. Because of subsequent
amendments to section 204(1)--codified at 49 U.S.C. 31132(1)--the
prohibition also applies to CMVs transporting (2) 9-15 passengers,
including the driver, for direct compensation, and (3) more than 15
passengers, including the driver, but not for direct compensation. The
1990 Act established a period of 45 days during which these motor
carriers could take necessary corrective action to improve their safety
rating to conditional or satisfactory. The statute required the FHWA
(FMCSA's predecessor agency) to review a motor carrier's corrective
actions within 30 days after the date of a safety rating upgrade
request.
Section 4009 of the Transportation Equity Act for the 21st Century
(Pub. L. 105-178, 112 Stat. 107, June 9, 1998), revised 49 U.S.C. 31144
to apply to all owners and operators of CMVs, not just those
transporting passengers or hazardous materials in quantities requiring
placarding. It expressly authorized the Agency to allow owners and
operators not transporting passengers or hazardous materials in
quantities requiring placarding up to an additional 60 days to continue
to operate if they were making a good faith effort to become fit.
Current Regulations
The Agency's regulations in 49 CFR 385.17 outline the procedures
that FMCSA and affected motor carriers \1\ must follow to upgrade a
safety rating based on corrective action. A motor carrier transporting
passengers or
[[Page 64760]]
hazardous materials in quantities requiring placarding may request an
upgrade of a proposed or final conditional or unsatisfactory safety
rating at any time based on corrective action it has taken. If the
Agency proposes an unsatisfactory safety rating, the 45-day period in
which the motor carrier must make improvements begins on the day
written notice of the proposed rating is given by FMCSA. If the
corrective action is determined to be insufficient, the proposed
unsatisfactory rating becomes effective and the motor carrier must
cease transportation of passengers or hazardous materials in quantities
requiring placarding immediately, which would be the 46th day from the
date of written notice of the proposed unsatisfactory rating. FMCSA
makes its determination expeditiously because a final unsatisfactory
safety rating will preclude any further operation of CMVs by the motor
carrier. If the motor carrier has submitted evidence that corrective
action has been taken and FMCSA is unable to make its determination
within the 45-day review period, the current provisions of 49 CFR
385.17(f) indicates the Agency may extend the 45-day review period by
up to 10 additional days.
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\1\ Although 49 U.S.C. 31144 uses the term ``owner or
operator,'' Agency regulations implementing the statute use the term
``motor carrier.''
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This provision allowing an extension of the effective date in order
for the Agency to review a motor carrier's corrective action has been
part of the regulations since 1991.\2\ Current Agency policy \3\,
however, does not allow for extensions of the effective date of a
proposed unsatisfactory safety rating for motor carriers transporting
passengers or hazardous materials in quantities requiring placarding.
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\2\ See Safety Fitness procedures; Safety Ratings, 56 FR 40801,
40802, 40806 (Aug. 18, 1991) (FHWA final rule).
\3\ http://www.ntsb.gov/doclib/reports/2012/HAR1202.pdf, cited
in Highway Accident report HAR-12/02, footnote 48, page 27,
published July 21, 2012.
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Legal Basis for Rulemaking
The legal basis for this final rule is found in 49 U.S.C. 31144(b)
and (c). The statute directs the Secretary to maintain by regulation a
procedure for determining the safety fitness of an owner or operator of
a commercial motor vehicle (CMV). Section 31144(b)(3) requires the
regulations to include specific time frames for such determinations.
Section 31144(c)(1) requires that an owner or operator determined to be
unfit is generally prohibited from operating CMVs, as defined in 49
U.S.C. 31132, in interstate commerce on the 61st day after the
determination. Under sections 31144(c)(2) and (c)(3), however, owners
or operators transporting either passengers or hazardous materials in
quantities requiring placarding on the vehicle are prohibited from
operating CMVs, as defined in 49 U.S.C. 31132,\4\ in interstate
commerce on the 46th day after the determination of unfitness is made.
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\4\ Under 49 CFR 390.3(f)(6), operators of CMVs designed or used
to transport between 9-15 passengers, not for direct compensation,
are not subject to the safety rating process.
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Section 31144(c)(4) gives the Secretary the discretion to allow an
owner or operator to operate for an additional 60 days after the 61st
day following the fitness determination ``if the Secretary determines
that such owner or operator is making a good faith effort to become
fit.'' But this provision specifically excludes from this discretionary
authority owners or operators transporting either passengers or
hazardous materials in quantities requiring placarding. Therefore, such
owners or operators are not allowed an additional period of operation
following the 45th day after the unfitness determination is made.
Authority to carry out these provisions has been delegated by the
Secretary to the Administrator of FMCSA under 49 CFR 1.87(f).
Administrative Procedure Act
Although the Administrative Procedure Act (APA) generally allows
agencies to promulgate final rules only after notice of proposed
rulemaking and an opportunity for public comment, agencies need not do
so when notice and comment would be ``unnecessary'' under the good
cause exception, 5 U.S.C. 553(b)(3)(B). FMCSA finds that notice and
comment are unnecessary in this case, and not otherwise required by
law, because the Agency is performing a nondiscretionary administrative
act to conform its regulations to 49 U.S.C. 31144.
Discussion of This Final Rule
The purpose of this final rule is to bring 49 CFR 385.17(f) into
conformity with Sec. 31144(c)(4) by removing the provision allowing a
10-day extension of the effective date of a proposed unsatisfactory
rating for motor carriers transporting passengers or hazardous
materials in quantities requiring placarding. No change is being made
to 49 CFR 385.17(g) which allows, in accordance with 49 U.S.C.
31144(c)(4), for motor carriers not transporting passengers or
hazardous materials in quantities requiring placarding to continue to
operate for up to an additional 60 days at the Agency's discretion.
FMCSA has updated the terminology used for motor carriers transporting
hazardous materials to be consistent with terminology used elsewhere in
this part.
If the Agency issues a proposed unsatisfactory safety fitness
rating, the carrier should submit its evidence of corrective actions
within 15 days thereafter in order to ensure adequate time for review.
Otherwise, the motor carrier risks a final safety fitness rating of
``unsatisfactory'' or ``unfit'' and being placed out of service. FMCSA
acknowledges that some motor carriers in this category have waited
until late into the corrective action period provided by 49 CFR 385.17
to submit evidence of corrective action, leaving Agency officials
little or no time for review. However, Sec. 385.17 indicates the
Agency will complete its review within 30 days of the carrier's
submission of a request for a change in the safety fitness rating. In
order to allow 30 days for the Agency to complete its review within the
45-day, non-extendable window from the issuance of the proposed unfit
rating, the carrier must submit evidence demonstrating corrective
action within 15 days.
Providing FMCSA receives evidence of corrective action within 15
days of the date of the proposed safety fitness rating, Agency
officials will review and make a decision on whether it is acceptable
before the end of the 45-day period. Should evidence of corrective
action be received more than 15 days after the date of the proposed
unsatisfactory safety fitness rating, the Agency will not guarantee
that the evidence will be considered prior to the end of the 45-day,
non-extendable window. If the corrective action period expires before
the Agency makes a determination, the proposed rating will become the
final rating and the carrier will be prohibited from operating
commercial motor vehicles. This policy is consistent with the Agency's
August 16, 2012, notice concerning the timely submission of corrective
action plans by new entrant carriers (77 FR 49384). If the FMCSA
subsequently determines that the corrective action plan is acceptable,
the carrier may be reinstated consistent with the Agency's fit,
willing, and able policy published on August 2, 2012 (77 FR 46147).
[[Page 64761]]
Statutory and Regulatory Reviews.
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA has determined that this action does not meet the criteria
for a ``significant regulatory action'' as specified in Executive Order
12866, as supplemented by Executive Order 13563, or within the meaning
of the Department of Transportation regulatory policies and procedures
(44 FR 11034, Feb. 26, 1979). As explained above, this final rule is
strictly ministerial in that it incorporates a nondiscretionary
statutory requirement and includes administrative and technical
corrections. These changes are necessary to make FMCSA's regulations
consistent with 49 U.S.C. 31144.
Under 49 CFR 385.17(f), the decision of whether to grant a carrier
an extension of the date on which a proposed unsatisfactory rating
becomes final has always been at the Agency's discretion. The Agency
can deny requests for extensions. The Agency's current policy is to
deny an extension to any motor carrier transporting passengers or
hazardous materials in quantities requiring placarding; thus, no such
extensions are currently being granted. As a result, incorporating this
policy into the Agency's regulations would have no practical effect on
the industry.
The only potential impact of this regulatory change would be to
eliminate the provision that would allow motor carriers transporting
either passengers or hazardous materials in quantities requiring
placarding to continue operating for an additional 10 days pending a
final determination of their safety fitness. However, current Agency
policy is to deny these extensions. The rule would have no economic
impact on the motor carrier industry, or significant safety impacts.
Therefore, a full regulatory impact analysis has not been conducted,
nor has there been a review by the Office of Information and Regulatory
Affairs under this executive order.
Regulatory Flexibility Act
FMCSA is not required to prepare a regulatory flexibility analysis
for this final rule under the Regulatory Flexibility Act, as amended by
the Small Business Regulatory Enforcement Fairness Act of 1996, 5
U.S.C. 601, et seq., because the Agency has not issued a Notice of
Proposed Rulemaking prior to this action and, therefore, is not
required in that case to prepare such an analysis, 5 U.S.C. 604(a).
This final rule also complies with the President's memorandum of
January 18, 2011, entitled Regulatory Flexibility, Small Business, and
Job Creation (76 FR 3827). As addressed above, promulgation of this
final rule is strictly ministerial in that it incorporates in FMCSA
regulations a nondiscretionary statutory requirement currently in place
and includes administrative and technical corrections.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular this Act addresses actions that may
result in the expenditure by a State, local, or tribal governments, in
the aggregate, or by the private sector of $143.1 million (which is the
calendar year 2010 value used in lieu of the $100 million threshold
included in the 1995 statute, after adjusting for inflation) or more in
any one year. This final rule will not result in such an expenditure.
Paperwork Reduction Act
This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
National Environmental Policy Act and Clean Air Act
FMCSA analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined under our environmental procedures Order 5610.1, issued
March 1, 2004 (69 FR 9680), that this action does not have any effect
on the quality of the environment. Therefore, this final rule is
categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1, paragraph 6(u) of Appendix 2. This categorical exclusion
covers regulations affecting the process for issuing orders to comply
with the regulations or issuing a civil penalty. A Categorical
Exclusion determination is available for inspection or copying in the
Regulations.gov Web site listed under ADDRESSES.
FMCSA also analyzed this action under section 176(c) of the Clean
Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement since it would result in no emissions increase or an
increase in emissions that is clearly de minimis.
Executive Order 12372 (Intergovernmental Review of Federal Programs)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this action.
Executive Order 12630 (Constitutionally Protected Property Rights)
This final rule does not effect a taking of private property or
otherwise have implications under Executive Order 12630.
Executive Order 12898 (Environmental Justice)
This final rule raises no environmental justice issues nor is there
any collective environmental impact resulting from its promulgation.
Executive Order 12988 (Civil Justice Reform)
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988 to minimize litigation, eliminate
ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
This final rule does not pose an environmental risk to health or
safety that may disproportionately affect children.
Executive Order 13132 (Federalism)
A rulemaking has implications for Federalism under Executive Order
13132, Federalism, if it has a substantial direct effect on State or
local governments and would either preempt State law or impose a
substantial direct cost of compliance on State or local governments.
FMCSA analyzed this action in accordance with Executive Order 13132.
This final rule does not preempt or modify any provision of State law,
impose substantial direct unreimbursed compliance costs on any State,
or diminish the power of any State to enforce its own laws.
Accordingly, this rulemaking does not have Federalism implications
warranting the application of Executive Order 13132.
Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FMCSA
[[Page 64762]]
determined that it is not a ``significant energy action'' under that
Executive Order because it is not economically significant and is not
likely to have an adverse effect on the supply, distribution, or use of
energy.
List of Subjects in 49 CFR Part 385
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping.
For the reasons discussed in the preamble, FMCSA amends 49 CFR part
385 as set forth below:
PART 385--SAFETY FITNESS PROCEDURES
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1. The authority citation for part 385 is revised to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350 of Pub.
L. 107-87; and 49 CFR 1.87.
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2. Revise Sec. 385.17(f) to read as follows:
Sec. 385.17 Change to safety rating based upon corrective actions.
* * * * *
(f) The filing of a request for change to a proposed or final
safety rating under this section does not stay the 45-day period
specified in Sec. 385.13(a)(1) for motor carriers transporting
passengers or hazardous materials in quantities requiring placarding.
* * * * *
Issued on: October 15, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-26044 Filed 10-22-12; 8:45 am]
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