Amendments To Implement Grants Provisions of the Fixing America's Surface Transportation Act |
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T.F. Scott Darling, III
Federal Motor Carrier Safety Administration
14 October 2016
[Federal Register Volume 81, Number 199 (Friday, October 14, 2016)]
[Rules and Regulations]
[Pages 71002-71016]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-24925]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 350
[Docket No. FMCSA-2016-0149]
RIN 2126-AB91
Amendments To Implement Grants Provisions of the Fixing America's
Surface Transportation Act
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
adopts, as final, certain regulations required by the Fixing America's
Surface Transportation Act (FAST Act) enacted on December 4, 2015. The
involved statutory changes went into effect on October 1, 2016, and
require that FMCSA make conforming changes to its regulations to ensure
they are current and consistent with the statutory requirements.
Adoption of these rules is a nondiscretionary, ministerial action that
FMCSA may take without issuing a notice of proposed rulemaking and
receiving public comment, in accordance with the good cause exception
available to Federal agencies under the Administrative Procedure Act.
DATES: This final rule is effective October 14, 2016. Petitions for
Reconsideration must be received by the Agency no later than November
14, 2016.
FOR FURTHER INFORMATION CONTACT: Kathryn Sinniger, Federal Motor
Carrier Safety Administration, 1200 New Jersey Avenue SE., Washington,
DC 20590; by telephone at (202) 493-0908, or by electronic mail at
kathryn.sinniger@dot.gov. If you have questions regarding the grants
program, please contact: Thomas Liberatore, Federal Motor Carrier
Safety Administration, 1200 New Jersey Avenue SE., Washington, DC
20590; by telephone at (202) 366-3030, or by electronic mail at
thomas.liberatore@dot.gov. If you have questions regarding the docket,
call Docket Services, telephone 202-366-9826.
SUPPLEMENTARY INFORMATION:
I. Executive Summary
A. Purpose and Summary of the Major Provisions
This rule makes nondiscretionary, ministerial changes to FMCSA
regulations that are required by the FAST Act (Pub. L. 114-94, 129
Stat. 1312, December 4, 2015). The FAST Act made several notable
changes to the grant programs administered by FMCSA. For example, it
consolidated the Border Enforcement, New Entrant, and Performance and
Registration Information Systems Management (PRISM) grants into the
formula Motor Carrier Safety Assistance Program (MCSAP) grant. Each
State is now required to fully participate in the PRISM program by
October 1, 2020, as a condition to receive funding under MCSAP. The
FAST Act also created a standalone High Priority financial assistance
(High Priority) Program with two major purposes: activities related to
motor carrier safety and Innovative Technology Deployment (ITD). The
ITD program modifies and replaces the FMCSA's Commercial Motor Vehicle
Information Systems and Networks (CVISN) program. Also, the Safety Data
Improvement Program, which was previously a standalone grant program,
[[Page 71003]]
has been merged into the High Priority Program. A full explanation of
all changes made in this rule is included below in section III. FAST
Act Provisions Implemented by this Rulemaking. A copy of the FAST Act
has been placed in the docket for this rulemaking for reference.
B. Benefits and Costs
The impact of the FAST Act provisions to certify eligibility and
allocate MCSAP and High Priority Program funds considered both
individually and in the aggregate does not cross the threshold of
economic significance; therefore a cost-benefit analysis is not
required.\1\
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\1\ Section 3(f) of Executive Order 12866 defines a
``significant'' regulatory action as one that satisfies any of four
conditions: (1) Have an annual effect on the economy of $100 million
or more or adversely affect in a material way the economy, a sector
of the economy, productivity, competition, jobs, the environment,
public health or safety, or State, local, or tribal governments or
communities; (2) Create a serious inconsistency or otherwise
interfere with an action taken or planned by another agency; (3)
Materially alter the budgetary impact of entitlements, grants, user
fees, or loan programs or the rights and obligations of recipients
thereof; or (4) Raise novel legal or policy issues arising out of
legal mandates, the President's priorities, or the principles set
forth in this Executive order. Rules fitting the first of these
conditions are often referred to as ``economically significant''
regulatory actions.
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The economic impact of changes to make FMCSA's regulations
consistent with the FAST Act provisions will not exceed the $100
million annual threshold specified by Executive Order 12866.\2\ FMCSA
determines that any costs associated with this action are attributable
to the non-discretionary statutory provisions. FMCSA's consideration of
the net impact of the FAST Act provisions suggests that reimbursements
for technology, staffing, enforcement, maintenance, and training
activities related to FMCSA regulations should ease the economic burden
on regulated entities. Consequently net impacts of these provisions are
expected to be small and affect a small number of individuals and
businesses.
II. Legal Basis for the Rulemaking
A. FAST Act
This rule is based on the FAST Act. Certain provisions of the FAST
Act made mandatory, non-discretionary changes to FMCSA programs. The
majority of these statutory changes went into effect retroactively on
October 1, 2015; the Agency published a final rule on July 22, 2016 (81
FR 47714) which made these changes. However, the changes made in
sections 5101 and 5106 of the FAST Act, which affect the Agency's MCSAP
grants, did not take effect until October 1, 2016. This final rule
makes the nondiscretionary, conforming changes required by FAST Act
sections 5101 and 5106, which also relate to the MCSAP. Publication of
today's rule triggers the 3-year window for the States to adopt
compatible provisions under FMCSA's MCSAP program. 49 CFR 350.331(d),
350.335(a)(2), and part 355, App. A.
It is necessary to make conforming changes to ensure that FMCSA's
regulations are current and consistent with the applicable statutes.
The provisions implemented in this final rule are required by the
following sections of the FAST Act:
1. Section 5101 Grants to States.
2. Section 5106 Motor Carrier Safety Assistance Program Allocation.
FMCSA is authorized to implement these statutory provisions by
delegation from the Secretary of Transportation in 49 CFR 1.87.
B. Administrative Procedure Act
Generally, agencies may promulgate final rules only after issuing a
notice of proposed rulemaking and providing an opportunity for public
comment under procedures required by the APA, as provided in 5 U.S.C.
553(b) and (d). Section 553(b)(3)(B), allows an exception from these
requirements when notice and public comment procedures are
``impracticable, unnecessary, or contrary to the public interest.''
FMCSA finds that prior notice and opportunity for comment are
unnecessary because the changes to the regulations found in this final
rule are statutorily mandated, and the Agency is performing a
nondiscretionary, ministerial act. For the same reason, FMCSA also
finds that providing 30 day of advance notice prior to this rule
becoming effective are unnecessary, pursuant to 5 U.S.C. 553 (d)(3).
C. FAST Act Waiver of Advance Notice of Proposed Rulemaking/Negotiated
Rulemaking
FMCSA is aware of the regulatory reform requirements imposed by
section 5202 of the FAST Act concerning public participation in
rulemaking (49 U.S.C. 31136(g)). These requirements pertain to certain
major rules, but because this final rule is not major, they are not
applicable. In addition, the Agency finds that publication of an
advance notice of proposed rulemaking under 49 U.S.C. 31136(g)(1)(A) or
completion of a negotiated rulemaking under 49 U.S.C. 31136(g)(1)(B),
is unnecessary and contrary to the public interest in accordance with
the waiver provision in 49 U.S.C. 31136(g)(3).
III. FAST Act Provisions Implemented by This Rulemaking
This section describes the conforming changes required due to the
FAST Act changes. Today's rule focuses on portions of the FAST Act that
are non-discretionary.
FMCSA is also including here a table of affected sections of the
Code of Federal Regulations (CFR), which will cross-reference
corresponding requirements of the FAST Act. This table will make it
easier for the reader to move back and forth between the revised
regulations and the corresponding section(s) of the FAST Act.
Table of CFR Sections Affected
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CFR Section FAST Act section 49 U.S.C. Sec.
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350.101..................... 5102 [129 Stat. 31102(l)(2) and (3).
1312, 1526].
350.103..................... 5102 [129 Stat. 31102(l)(2) and (3).
1312, 1526].
350.105..................... 5101 [129 Stat. 31102(c)(2)(U), (Y),
1312, 1514]. (AA), (BB)
31102(l).
350.107..................... 5101 [129 Stat. 31102(c) and
1312, 1514]. 31102(l)(2) and
(3).
350.110 (new)............... 5101 [129 Stat. 31102 (l)(2) and
1312, 1514]. (3).
350.201..................... 5101 [129 Stat. 31102(c)(2)(U), (Y),
1312, 1514]. (AA), (BB).
350.203 (new)............... 5101 [129 Stat. 31102 (l)(2) and
1312, 1514]. (3).
350.206 (new)............... 5101 [129 Stat. 31104.
1312, 1514].
350.207..................... 5101 [129 Stat. 31102(ii).
1312, 1514].
350.208 (new)............... 5101 [129 Stat. 31104(a).
1312, 1514].
350.210 (new)............... 5101 [129 Stat. 31102(l)(2).
1312, 1514].
350.213..................... 5101 [129 Stat. 31102((c)(2)(O)).
1312, 1514].
350.215..................... 5101 [129 Stat. 31102(k)(2).
1312, 1514].
[[Page 71004]]
350.301..................... 5101 [129 Stat. 31102(f).
1312, 1514].
350.303..................... 5101 [129 Stat. 31104(b).
1312, 1514].
350.308 (new)............... 5101 [129 Stat. 31102(l)(2) and (3).
1312, 1514].
350.309..................... 5101 [129 Stat. 31102(h).
1312, 1514].
350.310 (new)............... 5101 [129 Stat. 31102(l)(2) and (3).
1312, 1514].
350.311..................... 5101 [129 Stat. 31102(l)(2) and (3),
1312, 1514]. 31102(c)(2), and
31104.
350.313..................... 5101 [129 Stat. 31102(j).
1312, 1514]; 5106
[129 Stat. 1312,
1530].
350.319..................... 5101 [129 Stat. 31102(l).
1312, 1514].
350.321..................... 5101 [129 Stat. 31102.
1312, 1514].
350.323..................... 5101 [129 Stat. 31102(j), 31107,
1312, 1514]; 5106 31144(g).
[129 Stat. 1312,
1530].
350.329..................... 5101 [129 Stat. 31102(l)(2) and (3).
1312, 1514].
350.331..................... 5101 [129 Stat. 31102(e).
1312, 1514].
350.335..................... 5101 [129 Stat. 31102(e), and (k)(2)
1312, 1514].
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Section 5101 Grants to States
Section 5101 of the FAST Act made several revisions to existing
provisions found in title 49 of the United States Code (U.S.C.).
Section 5101(a) enacted a new version of 49 U.S.C. 31102, renamed
``Motor Carrier Assistance Program.'' The changes made to section 31102
are outlined below. The FAST Act added the terms ``Federally recognized
Indian tribes and other persons'' as those who could work in
partnership with the Agency in 49 U.S.C. 31102(b)(1), so we are making
corresponding changes in Sec. Sec. 350.101, 350.103, and 350.107 of
the regulations.
In 49 U.S.C. 31102(c)(2)(B), the FAST Act replaced the reference to
the State motor vehicle safety agency with reference to a ``lead State
commercial motor vehicle safety agency.'' FMCSA makes this change
throughout part 350. In addition, the FAST Act changed section
31102(c)(2) by revising the order of subsections (A) through (Y) and
added new subsections (Z) through (BB). These changes are reflected in
Sec. Sec. 350.201 and 350.211. Of particular note is subsection (Z),
which requires ``that the State agrees to fully participate in the
Performance and Registration Information System Management under 49
U.S.C. 31106(b) not later than October 1, 2020'' or ``an alternative
approach for identifying and immobilizing a motor carrier with serious
safety deficiencies in a manner that provides an equivalent level of
safety.'' This provision is reflected in Sec. 350.201(aa) and Sec.
350.211(x).
The Fast Act moved the existing language of 49 U.S.C. 31102(b)(3)
on disapproval of a State plan to subsection (i)(2) of U.S.C. 31102.
The Agency updated the regulatory language in Sec. 350.207 to reflect
the changes.
The FAST Act added 49 U.S.C. 31102(f)(4)(B), which creates
additional allowances for the States when determining their average
levels of expenditure for purposes of maintenance of effort. States are
allowed to exclude expenditures for activities related to border
enforcement and new entrant safety audits. This addition is reflected
in Sec. 350.301(b)(2).
The FAST Act also added paragraph (h) of 49 U.S.C. 31102 (existing
31102(c)), to describe an additional area where the grants may be used
to enforce other laws. Subsection (1)(B) includes the ``detection of
and enforcement actions taken as a result of criminal activity
including the trafficking of human beings, in a commercial motor
vehicle or by any occupant, including the operator.'' The Agency
updated the language in Sec. 350.309 to reflect this change.
Section 31102(k)(2)(B)(i-iv) now specifies what percentage of MCSAP
funds may be withheld when a State does not follow its submitted plan
or fails to enforce State regulations adequately. These criteria are
reflected in Sec. 350.215.
Section 31102(l) is added by the FAST Act, and it describes the
High Priority Program funded for the purposes of improved motor carrier
safety and Innovative Technology Deployment. This is a financial
assistance program, and, is available to a wider audience and described
throughout part 350. For reference, the current Safety Data Improvement
Program falls under this new High Priority program.
Section 31104 is revised by the FAST Act section 5101(c), and
paragraph (b) describes the Federal and recipient shares of Federal
financial assistance agreements as at least 85 percent. Paragraph (e)
provides that the Secretary shall establish eligible activities for
each Federal financial assistance agreement in a notice of funding
availability. Paragraph (f) describes the period of availability for
the Federal financial assistance agreements. Paragraph (g) describes
the initial date of availability for the Federal financial assistance
agreements.
Paragraphs (b) and (d)-(g) of section 5101 of the FAST Act do not
require corresponding changes in the regulations at this time.
Section 5106 Motor Carrier Safety Assistance Program Allocations \3\
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\3\ The effective date for section 5106 was October 1, 2015 (see
FAST Act section 1003, 129 Stat. 1312, 1322), which differs from the
October 1, 2016, effective date for section 5101 (see FAST Act
section 5101(f), 129 Stat. 1312, 1526). The Agency opted to include
Section 5106 in this final rule, and not its earlier final rule
implementing other nondiscretionary FAST Act changes made by the
FAST Act that also went into effect on October 1, 2015. This is due
to the fact that the subject matter of section 5106 more closely
aligned with that of section 5101. Additionally, as there have not
yet been grants made according to the formula outlined in section
5106 (and being implemented in this final rule), accordingly, there
has been no harm in delaying regulatory implementation of section
5106.
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Section 5106 of the FAST Act requires the establishment of a
working group to recommend a new MCSAP allocation formula reflecting
certain factors specified in the statute. However, paragraph (d) of
section 5106 outlines interim funding rules to be used until the new
formula is established. The interim amount, calculated by utilizing the
MCSAP allocation formula used in fiscal year 2016 plus the average of
the funding awarded (or other equitable amounts) to a State in fiscal
years 2013, 2014, and 2015 for border enforcement and new entrant
grants, is reflected in Sec. 350.323. Likewise, Sec. 350.323 has been
revised to include the caveat, also found in section 5106(d), that the
initial amounts resulting from the calculation described above be
adjusted to ensure that, subject to the availability of funding, for
each State, the amount shall
[[Page 71005]]
not be less than 97 percent of the average amount of funding received
or other equitable amounts in fiscal years 2013, 2014, and 2015 for
MCSAP grants, border enforcement grants, and new entrant grants.
V. Section-by-Section Analysis
The following is a description of the changes to Part 350 as a
result of the requirements of the FAST Act. These changes are described
in numerical order by CFR citation. FMCSA also made conforming changes
to the regulatory language as well as editorial corrections, so that
the regulations do not conflict with the FAST Act.
A. Part 350, Subpart A
Section 350.101 What is the Motor Carrier Safety Assistance Program
(MCSAP) and High Priority Program?
In accordance with the FAST Act, section 5101(a), adding section
31102(l), FMCSA changes the heading of Sec. 350.101 to add a reference
to a High Priority Program. Paragraph (a) is changed by adding the word
``State'' to clarify that it is referencing State safety rules,
regulations and standards. Paragraph (b) is added to describe the High
Priority Program.
Section 350.103 What is the purpose of this part?
In the undesignated introductory text of Sec. 350.103, FMCSA adds
a reference to ``States, local government agencies, other political
jurisdictions, federally recognized Indian tribes, and other
organizations and persons'' which are eligible for the High Priority
Program, as stated in the FAST Act, section 5101(a), adding 49 U.S.C.
31102(l).
Section 350.105 What definitions are used in this part?
FMCSA removes the definitions of ``High Priority Activity Funds,''
and ``New Entrant Funds'' Definitions are added for ``Innovative
Technology Deployment Funds,'' ``Lead State Agency,'' ``Level of
effort,'' ``Maintenance of effort,'' and ``Plan.''
In the definitions of ``10-year average accident rate'' and
``Accident rate,'' the reference to FMCSA is changed to Federal Highway
Administration.
In the definition for ``Basic Program Funds,'' the references for
High Priority Activity Funds and New Entrant Funds are removed.
FMCSA adds the words ``or the Plan'' to the definition of
``Commercial Vehicle Safety Plan (CVSP).''
FMCSA adds a definition for ``New Entrant Safety Audits'' to
describe the requirement under the FAST Act, section 5101(a), amending
49 U.S.C. 31102(c)(2)(Y).
In the definition of ``Operating Authority,'' a reference to 49
U.S.C. 31144 is added.
``State or States,'' is moved here from Sec. 350.107 since it
applies to all of part 350.
Section 350.107 What entities are eligible for funding under this part?
The heading for Sec. 350.107 is changed to replace the word
``jurisdictions'' with ``entities,'' to add ``under this part,'' and to
remove the reference to MCSAP.
The Agency redesignates the existing section as paragraph (a) and
adds a reference to MCSAP at the beginning of the paragraph. The
definition of ``State or States,'' is moved to the definition section
in Sec. 350.105.
In accordance with the FAST Act, section 5101(a), adding 49 U.S.C.
31102(l), we added a new paragraph (b) to section 350.107 that
describes the entities eligible for funding in the High Priority
Program.
Section 350.109 What are the national Motor Carrier Safety Assistance
Program (MCSAP) elements?
FMCSA adds ``Motor Carrier Safety Assistance Program (MCSAP)'' to
the heading of Sec. 350.109 to clarify that the elements apply to the
MCSAP Program.
Section 350.110 What are the national High Priority Program elements?
In accordance with the FAST Act, section 5101(a), adding 49 U.S.C.
31102(l), the Agency adds Sec. 350.110 to describe the national High
Priority Program elements.
B. Section 350, Subpart B
Section 350.201 What conditions must a State meet to qualify for MCSAP
Funds?
The FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(A-BB)
requires amendments to the conditions a State must qualify for MCSAP
funds.
In Sec. 350.201, the adjective MCSAP is added to the heading. In
paragraph (a) the words ``standards, and orders'' are added. Paragraph
(b) is not changed. The word ``Lead'' is added to paragraph (c) to
reflect the agency responsible for the plan throughout the States. In
paragraphs (d) and (e), the words ``standards, and orders'' are added
to reflect the statutory language.
Paragraph (f) is rewritten to cross-reference the maintenance of
effort requirements now re-codified in Sec. 350.301 in accordance with
FAST Act section 5101(a), adding 49 U.S.C. 31102(f). In paragraph (g),
the words ``legal authority for'' are removed. The Agency removes the
words ``prepare and submit'' and replaces them with ``provide'' in
paragraph (h). Paragraph (i) is changed to reflect the language of the
FAST Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(G).
In paragraph (j) the word ``declare'' is replaced with
``demonstrate.'' Paragraph (k) has no changes. In paragraph (l) the
words ``other CMV safety enforcement programs'' are replaced with
``development and implementation of the programs to improve motor
carrier, CMV, and driver safety.'' Paragraph (m) is unchanged.
Paragraph (n) reflects the addition of the words ``and data
systems'' to ``FMCSA information technology.'' No changes are made to
paragraphs (o) and (p). Paragraph (q)(1) and (2) are the same, however,
section 5101(a) of the FAST Act adding 49 U.S.C. 31102(c)(2)(O),
required a change to (3) to reflect ``activities related to criminal
interdiction,'' not only those ``affecting the transportation of
controlled substances.''
Existing paragraph (r) is removed. Existing paragraph (s) becomes
new paragraph (r) and is not changed. Existing paragraph (t) becomes
new paragraph (s) and is changed by updating the citations. New
paragraph (t) is moved from existing paragraph (u) and simplified.
Existing paragraph (v) becomes new paragraph (u) and removes the words
``MCSAP agencies have policies that stipulate.'' New paragraph (v) is
existing paragraph (w) revised. Existing paragraph (x) is now new
paragraph (w) with introduction of ``provide that the State will.'' In
making these changes, paragraphs (r) and (v) are no longer conditions
of participation.
New paragraph (x) is derived from existing paragraph (y) with the
addition of ``excluding a weigh station,'' as required by the FAST Act,
section 5101(a), adding 49 U.S.C. 31102(c)(2)(W). New paragraph (y) is
existing paragraph (z) with changed CFR citations and one additional
U.S.C. citation. New paragraphs (z), (aa), (bb), and (cc) are copied
directly from the FAST Act, section 5101(a), adding 49 U.S.C.
31102(c)(2)(Y-BB).
Section 350.203 What conditions must an applicant meet to qualify for
High Priority Program Funds?
The contents of existing Sec. 350.329 are moved to new Sec.
350.203. The changes and the reorganization conform to the requirements
of the FAST Act, section 5101(a), adding 49 U.S.C. 31102(l). The
heading of the section is changed; it uses the term ``applicant,''
clarifying that High Priority program funding is available to other
entities identified in
[[Page 71006]]
Sec. 31102(l)(2), in addition to ``a State or local agency,''
Paragraph (a) is unchanged. FMCSA changes the introductory text of
paragraph (b), using the term ``applicants'' rather than ``local
agencies'' and providing a cross reference. Paragraphs (b)(1) through
(4) and (b)(6) through (9) are mostly unchanged from the existing rule;
however, clarifying language was added to expand the range of entities
eligible for High Priority Program funds. As required by section
31104(b), as amended by the FAST Act section 5101(c), in paragraph
(b)(5), FMCSA lowered the amount that an applicant must agree to fund
from 20 percent to 15 percent.
Section 350.205 How and when does a State apply for MCSAP funding?
FMCSA requires the State to submit its commercial vehicle safety
plan ``to FMCSA,'' instead of to ``the Division Administrator/State
Director.''
Section 350.206 How and when does one apply for High Priority Program
funding?
As stated in the FAST Act section 5101(c), amending 49 U.S.C.
31104(e), FMCSA adds a new Sec. 350.206 to demonstrate that FMCSA will
publish a Notice of Funding Availability (NOFA) to establish criteria
for eligible activities to be funded under the High Priority Program,
paralleling Sec. 350.205.
Section 350.207 What response does a State receive to its CVSP
submission?
To conform to the language of the FAST Act, section 5101(a), adding
49 U.S.C. 31102(i), FMCSA changes paragraph (b) by adding that FMCSA
will give the State a written explanation for withholding approval and
allow the State to modify and resubmit the Plan. In paragraph (c),
FMCSA adds that disapproval of the Plan is final only for ``that fiscal
year.'' Paragraph (d) is unchanged.
Section 350.208 What response will the applicant for a High Priority
Program receive?
The FAST Act did not amend the current process, but separated the
MCSAP and High Priority Programs (section 5101(a), adding 49 U.S.C.
31102(l)). FMCSA adds a new Sec. 350.208 to state the response an
applicant will receive to a grant application, paralleling Sec.
350.207 to demonstrate the separation of the MCSAP and High Priority
Grant Programs. Paragraph (a) covers grant approvals, and paragraph (b)
covers grant denials.
Section 350.210 How does an applicant demonstrate it satisfies the
conditions for High Priority Program Funding?
FMCSA adds new Sec. 350.210 to refer applicants for High Priority
Program Funding to new Sec. 350.203, which describes the conditions
the applicant must meet to qualify, which were established in 49 U.S.C.
31102(l), and to parallel existing Sec. 350.209.
Section 350.211 What is the format of the certification required by
Sec. 350.209?
Section 350.211 describes the format of the certification required
by Sec. 350.209. It is revised and reorganized to conform to the
language of the FAST Act, section 5101(a), amending 49 U.S.C. 31102.
The introductory text is unchanged. In paragraph ((a), FMCSA added
references to ``standards and orders'' and ``the standards and orders
of the Federal Government.'' In ((b), the language was changed to
include references to ``Lead State Agency'' and standards and orders.
Paragraph (c) is changed by adding a reference to standards and orders.
In paragraph (d), FMCSA adds ``or other method a State may use that is
adequate to obtain the necessary information'' as an alternative to
right of entry. Paragraph (e) is not changed. In (f), FMCSA adds a
reference to ``investigations.'' Paragraph (g) is modified by
substituting the word ``demonstrate'' for ``declare.'' Paragraph (h) is
based on existing paragraph 8, but completely changed to conform to the
FAST Act, section 5101(a), creating 49 U.S.C. 31102(f). A new paragraph
(i) is added to ensure States protect the effectiveness of programs to
improve safety.
Existing paragraphs 9 through 14 are redesignated as new paragraphs
(j) through (o), and conformed to the language of the FAST Act, section
5101(a), adding 31102(c)(2)(J)-(O). New paragraph (j) is unchanged. In
new paragraph (k), the word ``fines'' is changed to the word
``sanctions''; and the word ``equitable'' is changed to the word
``reasonable'' per section 5101(c) of the FAST Act. New paragraph (l)
is changed by adding the requirement that the State ``dedicate
sufficient resources'' to a program that provides FMCSA with
information. In new paragraph (m), FMCSA adds a new reference to 23
U.S.C. 148(c). FMCSA adds ``regulations'' to the list of items a State
should enforce in new paragraph (n). In new paragraph (o), FMCSA
removes the reference to MCSAP Agencies. Existing paragraph 15 is
removed.
New paragraph (p) is the same as existing paragraph 16. New
paragraph (q) substitutes the word ``registration'' for the phrase
``operating authority'' throughout, and adds a reference to the U.S.
Code. In paragraph (r), FMCSA states that the State ``will cooperate in
the enforcement of financial responsibility'' rather than ``enforce the
financial responsibility requirements.'' It also adds a reference to
the U.S. Code and removes a cross reference to Sec. 392.9a. Paragraphs
(s) and (t) remain the same. Paragraph 21, new paragraph (u), is
changed by adding language to clarify that station means bus station.
The phrase ``excluding a weigh station'' is added to clarify that
planned stops do not include weigh stations, as required by the FAST
Act, section 5101(a), adding 49 U.S.C. 31102(c)(2)(W). In paragraph
(v), cross references to the CFR are added.
Paragraphs (w) through (z) are new and required by the FAST Act,
section 5101(a), adding 49 U.S.C. 31102(c)(2)(Y)-(Z). Paragraph (w)
requires the State to conduct safety audits of new entrant motor
carriers. The State must also verify the work of third parties that
conduct safety audits on the State's behalf. Paragraph (x) provides
that the State must certify that it either participates in the PRISM or
demonstrates an alternative approach for identifying and taking action
on out of service motor carriers.
As amended by the FAST Act, section 5101(a), adding 49 U.S.C.
31102(c)(2)(AA), paragraph (y) provides that a border State must
conduct a border CMV safety program or forfeit MCSAP funds based on
border-related activities. In accordance with the FAST Act, section
5101(a) adding 49 U.S.C. 31102(c)(2)(BB), if a State meets all the
MCSAP requirements and funds operations and maintenance costs
associated with innovative technology deployment, paragraph (z)
requires the State to certify that it agrees to comply with ``all MCSAP
requirements and funds operation and maintenance costs associated with
Innovative Technology Deployment with MCSAP funds'' and ``Innovative
Technology Deployment requirements established pursuant to 49 CFR
350.310 and 350.311.''
Section 350.213 What must a State CVSP include?
As required by the FAST Act, section 5101(a), creating 49 U.S.C.
31102(c)(2)(O), section 350.213(b)(3) is changed by adding the word
``Criminal,'' clarifying the type of interdiction activities, and
changing the paragraph so it no longer covers only the transportation
of controlled substances. The changes to paragraph (b)(4) include
adding a reference to 49
[[Page 71007]]
U.S.C. 31134 and removing a reference to 49 CFR part 365. The paragraph
now requires an applicant to certify that it will ``cooperate in the
enforcement of'' financial responsibility requirements.
Section 350.215 What are the consequences for a State that fails to
perform according to an approved CVSP or otherwise fails to meet the
conditions of this part?
Pursuant to section 5101(a) of the FAST Act, adding 49 U.S.C.
31102(k), section 350.215(e) is completely revised. It now provides
that an adverse decision will result in withdrawing approval of the
plan and withholding all MCSAP funding or finding the State in
noncompliance and withholding between 5 and 50 percent of the funding
over the years of noncompliance. The remainder of the regulation
remains unchanged.
Section 350.301 What level of effort must a State maintain to qualify
for MCSAP funding?
Section 350.301(a) clarifies that the requirements apply each
fiscal year to the ``Lead State Agency.'' It also clarifies that by
``average aggregate expenditure'' it means ``level of effort.''
Paragraph (b) is restated to allow States to exclude expenditures for
federally sponsored demonstration and pilot CMV safety programs, strike
forces, activities related to border enforcement, and for new entrant
safety audits. However the State must exclude State matching funds, as
currently required. Paragraph (c) contains language changes to conform
to the FAST Act.
To comply with the FAST Act section 5101(a), adding 49 U.S.C.
31102(f), paragraphs (d) and (e) are added and paragraphs (a)-(c) are
revised. Paragraph (d) allows States to use certain amounts as part of
the State's maintenance of effort. Paragraph (e) provides that FMCSA
may waive or modify the requirements of Sec. 350.301 at the request of
the State. Paragraph (e) provides that a State may request, and FMCSA
may make, a reasonable adjustment to the level of effort required.
Section 350.303 What are the State and Federal shares of expenses
incurred under the MCSAP and High Priority Programs?
The heading of Sec. 350.303 is revised to clarify that this
section refers to both the MCSAP and High Priority Program. As required
by FAST Act, section 5101(c), amending 49 U.S.C. 31104(b), new
paragraph (a) increases the percent of eligible costs that FMCSA will
reimburse from 80 percent to at least 85 percent. It changes the
reference to ``costs incurred in the administration of an approved
CVSP'' to ``costs incurred under the MCSAP and High Priority Program.''
Paragraph (b) makes language changes and also changes the cross
reference from 49 CFR part 18, which has been removed, to 2 CFR part
200, the Office of Management and Budget provision dealing with
``Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards.'' FMCSA adds paragraph (c) to provide
that, when ``. . . the amounts are not applied to the maintenance of
effort required under Sec. 350.301,''States may use amounts generated
under 49 U.S.C. 14504a as part of the State's match required for MCSAP,
as required in the FAST Act section 5101(a) which revised 49 U.S.C.
31102(g).
Section 350.305 Are U.S. Territories subject to the MCSAP matching
funds requirement?
Section 350.305, including the heading, is changed by adding
references to MCSAP to clarify that this section refers to MCSAP
matching funds. The rest of the provision remains unchanged.
Section 350.308 How long are High Priority Program funds available?
As required by the FAST ACT section 5101(c), amending 49 U.S.C.
31104(f), FMCSA adds a new Sec. 350.308 to specify how long High
Priority Program funds are available, paralleling existing Sec.
350.307. Paragraph (a) describes how long funds for CMV safety
activities will be available. Paragraph (b) states how long funds for
Innovative Technology Deployment activities will be available.
Section 350.309 What activities are eligible for reimbursement under
the MCSAP?
In Sec. 350.309, existing paragraph (c) becomes paragraph (c)(1),
and the language is changed to conform to the FAST Act, section
5101(a), adding 49 U.S.C. 31102(h), In paragraph (c)(1)(ii), the
reference to ``controlled substance'' is replaced with ``criminal
activity, including the trafficking of human beings.''
FMCSA moves the content of existing paragraph (d) to paragraph
(c)(2), and revises it. In paragraph (c)(2)(i), the reference to fiscal
year 2003 is removed. In paragraph (c)(2)(ii), the percent of MCSAP
Basic funds available for enforcement activities related to non-CMVs is
raised from 5 percent to 10 percent. FMCSA removes existing paragraph
(d).
Section 350.310 What types of activities and projects are eligible for
reimbursement under the High Priority Program?
FMCSA adds new Sec. 350.310 to describe the activities and
programs eligible for funding under the new High Priority Program, in
parallel with Sec. 350.309. New Sec. 350.310 contains some of the
information in existing Sec. 350.319, but has been revised and
reorganized to reflect the FAST Act, section 5101(a), adding 49 U.S.C.
31102(l). Paragraphs (a) through (e) provide a list of eligible
activities. Paragraph (f) makes both Non-Lead State Agencies and Lead
State Agencies supporting PRISM eligible for High Priority Program
funding. Paragraph (g) states that the conduct of Safety Data
Improvement Projects is an eligible activity for some entities and
references the requirements for such a project. Paragraph (h) includes
the improvement of CMV safety and compliance with regulations on the
list of eligible activities. Paragraph (i) authorizes reimbursement for
the implementation and maintenance of Innovative Technology Deployment
of CMV information systems and networks.
Section 350.311 What specific items are eligible for reimbursement
under the MCSAP and High Priority Program?
FMCSA adds Sec. 350.311(a) to provide that FMCSA shall establish
criteria for eligible activities and publish those criteria in
accordance with the FAST Act, section 5101(c), amending 49 U.S.C.
31104(e). Existing Sec. 350.311 becomes new Sec. 350.311(b), and
language and cross references are changed from 49 CFR part 18, which
has been removed, to 2 CFR part 200, the Office of Management and
Budget provision dealing with ``Uniform Administrative Requirements,
Cost Principles, and Audit Requirements for Federal Awards.''
Section 350.313 How are MCSAP funds allocated?
FMCSA completely revises Sec. 350.313 to reflect the new
organization of grants under the FAST Act. Because of grant program
consolidation under sections 5101(a) and 5101(c) of the FAST Act, MCSAP
funds are now only allocated in two ways, so paragraphs (a) (1) and
(2), (b) and (c) are deleted. The remaining language is unchanged but
renumbered. Paragraph (a) provides that Basic Program Funds are
allocated in accordance with Sec. 350.323. Paragraph (b) specifies
that Incentive Funds are allocated in accordance with Sec. 350.327.
[[Page 71008]]
Section 350.319 [Removed]
Existing Sec. 350.319 is removed consistent with the FAST Act's
revision of the High Priority Program, section 5101(a), adding 49
U.S.C. 31102(l). Some elements of this section are moved to Sec.
350.310.
Section 350.321 [Removed]
Section 350.321 is removed, consistent with section 5101(e) of the
FAST Act's removal of New Entrant Funds as a separate grants program
and inclusion of them under the general MCSAP funds.
Section 350.323 What criteria are used in the Basic Program Funds
allocation?
FMCSA alters paragraph (a) by adding the word ``First'' to indicate
the order in which these procedures occur. As required by the FAST Act,
section 5106(d), paragraphs (b)-(d) are added. FMCSA adds a new
paragraph (b) to provide that the funding for certain grants awarded to
a State will be averaged. New paragraph (c) provides that the total
amount of MCSAP Basic funding is the sum of the amounts in paragraphs
(a) and (b). In new paragraph (d), FMCSA explains how and why the
Agency will adjust the total amount of MCSAP Basic funding. New
paragraph (e) includes part of existing paragraph (b), and the language
remains unchanged by the FAST Act, but the table has been removed.
Section 350.329 [Removed]
The contents of existing Sec. 350.329 are moved to Sec. 350.203
and revised. Existing Sec. 350.329 is removed.
Section 350.331 How does a State ensure its laws and regulations are
compatible with the FMCSRs and HMRs?
Section 331(a) is clarified and changed to provide that the State
must submit copies of any new or amended State law or regulation on CMV
safety to FMCSA, as well as review them. Existing paragraph (b) is
removed, as it pertains to the review of a State law or regulation.
Existing paragraphs (c) and (d) become new paragraphs (b) and (c). New
paragraph (b) is changed by revising the introduction to remove the
references to the ``annual review'' and the ``annual CVSP,'' instead
referencing just the review and CVSP.
Section 350.335 What are the consequences if a State has laws or
regulations incompatible with the Federal regulations?
In accordance with the FAST Act, section 5101(a), adding 49 U.S.C.
31102(k), in Sec. 350.335, FMCSA combines existing paragraph (a), (b),
and (d) into a new paragraph (a) and adds an introductory paragraph. In
new paragraphs (a)(1) and (2), FMCSA removes the references to Basic
Program Funds and Incentive Funds. In new paragraph (a)(3) the
reference to Basic Program is changed to MCSAP Basic Program. Existing
paragraph (c) is removed. Existing paragraph (e) becomes new paragraph
(b)
VI. Rulemaking Analyses
Executive Order 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures as Supplemented by E.O. 13563)
FMCSA has determined that this final rule is not a significant
regulatory action within the meaning of Executive Order (E.O.) 12866,
as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), and is
also not significant within the meaning of DOT regulatory policies and
procedures (44 FR 11034, February 26, 1979). As explained above, this
final rule is strictly ministerial in that it incorporates
nondiscretionary statutory requirements. These statutory changes went
into effect on October 1, 2016. The regulatory changes included in this
rule are necessary to make FMCSA's regulations consistent with the FAST
Act, and their economic impact will not exceed the $100 million annual
threshold. Any costs associated with this action are attributable to
the nondiscretionary statutory provisions. This final rule is not
expected to generate substantial congressional or public interest.
Therefore, a full regulatory impact analysis has not been conducted,
nor has there been a review by the Office of Management and Budget
(OMB).
Although a full regulatory evaluation is unnecessary because the
level of economic significance does not exceed the $100 million annual
threshold, FMCSA considered the net impact of the FAST Act provisions
implemented by this final rule. This rule's provisions provide
reimbursements for technology, staffing, enforcement, maintenance, and
training activities related to FMCSA regulations and should ease the
economic burden on regulated entities. The net impacts of these
provisions are expected to be small and affect a small number of
individuals and businesses.
Regulatory Flexibility Act
Pursuant to the Regulatory Flexibility Act (RFA) of 1980 (5 U.S.C.
601 et seq.), as amended by the Small Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), FMCSA is not
required to prepare a final regulatory flexibility analysis under 5
U.S.C. 604(a) for this final rule because the Agency has not issued a
notice of proposed rulemaking prior to this action. FMCSA has
determined that it has good cause to adopt the rule without notice and
comment.
Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this rule so that they can better evaluate its effects
on themselves and participate in the rulemaking initiative. If the rule
would affect your small business, organization, or governmental
jurisdiction and you have questions concerning its provisions or
options for compliance, please consult the FMCSA point of contact,
Thomas Liberatore, listed in the FOR FURTHER INFORMATION CONTACT
section of this rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the SBA's Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247). DOT has a policy ensuring the rights of small entities to
regulatory enforcement fairness and an explicit policy against
retaliation for exercising these rights.
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, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $155 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2014 levels) or more in any 1 year.
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), nor does it
revise any existing approved collections of information.
E.O. 13132 (Federalism)
A rule has implications for Federalism under section 1(a) of
[[Page 71009]]
Executive Order 13132 if it has ``substantial direct effects on the
States, on the relationship between the national government and the
States, or on the distribution of power and responsibilities among the
various levels of government.''
FMCSA has determined that this rule would not impose substantial
direct costs on States, nor would it limit the policymaking discretion
of States. Nothing in this document preempts any State law or
regulation. Therefore, this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Impact
Statement.
E.O. 12988 (Civil Justice Reform)
This final rule meets applicable standards in sections 3(a) and
3(b)(2) of E.O. 12988 to minimize litigation, eliminate ambiguity, and
reduce burden.
E.O. 13045 (Protection of Children)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies
issuing ``economically significant'' rules to include an evaluation of
the regulation's environmental health and safety effects on children,
if the agency has reason to believe the regulation may
disproportionately affect children. FMCSA has determined this final
rule is not economically significant. Therefore, no analysis of the
impacts on children is required. In any event, this regulatory action
could not pose an environmental or safety risk that would
disproportionately affect children.
E.O. 12630 (Taking of Private Property)
FMCSA reviewed this final rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have takings implications.
Privacy Impact Assessment
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to
conduct a privacy impact assessment (PIA) of a regulation that will
affect the privacy of individuals. This rule does not require the
collection of personally identifiable information (PII), and the Agency
therefore finds that there will be no impact on the privacy of
individuals.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency which receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat.
2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct PIA
for new or substantially changed technology that collects, maintains,
or disseminates information in an identifiable form. No new or
substantially changed technology would collect, maintain, or
disseminate information as a result of this rule. FMCSA has therefore
not conducted a privacy impact assessment.
E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
action.
E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed this action under E.O. 13211, Actions Concerning
Regulations That Significantly Affect Energy Supply, Distribution, or
Use. FMCSA determined that it is not a ``significant energy action''
under that E.O. because it is not economically significant and is not
likely to have an adverse effect on the supply, distribution, or use of
energy. Therefore, it does not require a Statement of Energy Effects
under E.O. 13211.
E.O. 13175 (Indian Tribal Governments)
This final rule does not have tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
tribes, on the relationship between the Federal Government and Indian
tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian tribes.
National Technology Transfer and Advancement Act (Technical Standards)
The National Technology Transfer and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use voluntary consensus standards
in their regulatory activities unless the agency provides Congress,
through OMB, with an explanation of why using these standards would be
inconsistent with applicable law or otherwise impractical. Voluntary
consensus standards (e.g., specifications of materials, performance,
design, or operation; test methods; sampling procedures; and related
management systems practices) are standards that are developed or
adopted by voluntary consensus standards bodies. This final rule does
not use technical standards. Therefore, we did not consider the use of
voluntary consensus standards.
National Environmental Policy Act and Clean Air Act
FMCSA analyzed this rule in accordance with the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and
FMCSA's NEPA Implementing Procedures and Policy for Considering
Environmental Impacts, Order 5610.1 (FMCSA Order), March 1, 2004 (69 FR
9680). FMCSA's Order states that ``[w]here FMCSA has no discretion to
withhold or condition an action if the action is taken in accordance
with specific statutory criteria and FMCSA lacks control and
responsibility over the effects of an action, that action is not
subject to this Order.'' Id. at chapter 1(D). Because Congress required
the actions taken in this final rule, leaving the Agency no discretion
or responsibility for its effects, this rulemaking is exempt from
further analysis.
In addition to the NEPA requirements to examine impacts on air
quality, the Clean Air Act (CAA) as amended (42 U.S.C. 7401, et seq.)
also requires FMCSA to analyze the potential impact of its actions on
air quality and to ensure that FMCSA actions conform to State and local
air quality implementation plans. This non-discretionary action falls
within the CAA de minimis standards and is not subject to the
Environmental Protection Agency's General Conformity Rule (40 CFR parts
51 and 93).
Additionally, FMCSA evaluated the effects of this final rule in
accordance with Executive Order 12898 and determined that there are no
environmental justice issues associated with its provisions nor any
collective environmental impacts resulting from its promulgation.
Environmental justice issues would be raised if there were a
``disproportionate'' and ``high and adverse impact'' on minority or
low-income populations.
List of Subjects for 49 CFR Part 350
Grant programs-transportation, Highway safety, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.
PART 350--MOTOR CARRIER SAFETY ASSISTANCE PROGRAM AND HIGH PRIORITY
PROGRAM
0
1. The authority citation for part 350 continues to read as follows:
Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31141,
31161, 31310-31311, 31502; and 49 CFR 1.87.
[[Page 71010]]
0
2. The heading for part 350 is revised as set out above.
0
3. Section 350.101 is revised to read as follows:
Sec. 350.101 What is the Motor Carrier Safety Assistance Program
(MCSAP) and High Priority Program?
(a) What is the MCSAP? The MCSAP is a Federal grant program that
provides financial assistance to States to reduce the number and
severity of accidents and hazardous materials incidents involving
commercial motor vehicles (CMVs). The goal of the MCSAP is to reduce
CMV-involved accidents, fatalities, and injuries through consistent,
uniform, and effective CMV safety programs. Investing grant monies in
appropriate safety programs will increase the likelihood that safety
defects, driver deficiencies, and unsafe motor carrier practices will
be detected and corrected before they become contributing factors to
accidents. The MCSAP also sets forth the conditions for participation
by States and local jurisdictions and promotes the adoption and uniform
enforcement of State safety rules, regulations, and standards
compatible with the Federal Motor Carrier Safety Regulations (FMCSRs)
and Federal Hazardous Material Regulations (HMRs) for both interstate
and intrastate motor carriers and drivers.
(b) What is the High Priority Program? The High Priority Program is
a discretionary financial assistance program that supports, enriches,
and augments State CMV safety programs through partnerships with
States, local governments, federally recognized Indian tribes, other
political jurisdictions, and other persons to carry out high priority
activities and projects that augment motor carrier safety activities
and, projects planned in accordance with the MCSAP. It also promotes
the deployment of innovative technology for the CMV information systems
and networks.
0
4. Amend Sec. 350.103 by revising the introductory text and paragraph
(d) to read as follows:
Sec. 350.103 What is the purpose of this part?
The purpose of this part is to ensure that the Federal Motor
Carrier Safety Administration (FMCSA), and States, local government
agencies, other political jurisdictions, federally recognized Indian
tribes, and other organizations and persons work in partnership to
establish programs to improve motor carrier, CMV, and driver safety to
support a safe and efficient transportation system by--
* * * * *
(d) Assessing and improving State-wide performance by setting
program goals and meeting performance standards, measures, and
benchmarks.
0
5. Amend Sec. 350.105 by:
0
a. Revising the definitions of ``10-year average accident rate,''
``Accident rate,'' ``Basic Program Funds,'' and ``Commercial Vehicle
Safety Plan (CVSP);''
0
b. Removing the definition of ``High Priority Activity Funds;''
0
c. Adding definitions for ``Innovative Technology Deployment funds,''
``Lead State Agency,'' ``Level of effort,'' and ``Maintenance of
effort'' in alphabetical order;
0
d. Revising the definition of ``Operating Authority;''
0
e. Adding a definition for ``Plan'' in alphabetical order;
0
f. Removing the definition of ``New Entrant Funds;'' and
0
g. Adding a definition for ``State or States'' in alphabetical order.
The revisions and additions read as follows:
Sec. 350.105 What definitions are used in this part?
10-year average accident rate means for each State, the aggregate
number of large truck-involved fatal crashes (as reported in the
Fatality Analysis Reporting System (FARS)) for a 10-year period divided
by the aggregate vehicle miles traveled (VMT) as defined by the Federal
Highway Administration (FHWA) for the same 10-year period.
Accident rate means for each State, the total number of fatal
crashes involving large trucks (as measured by the FARS for each State)
divided by the total Vehicles Miles Traveled (VMT) as defined by the
Federal Highway Administration (FHWA) for each State for all vehicles.
* * * * *
Basic Program Funds means total MCSAP funds less the Administrative
Takedown and Incentive Funds.
* * * * *
Commercial vehicle safety plan (CVSP) or the Plan means the
document outlining the State's CMV safety objectives, strategies,
activities, and performance measures.
Innovative Technology Deployment funds means funds provided to
States for carrying out the deployment of innovative technology that
support commercial vehicle information systems and networks.
* * * * *
Lead State Agency means the State CMV safety agency designated by
the Governor to be responsible for administering the Plan throughout
the State.
Level of effort--see Maintenance of effort.
Maintenance of effort means the level of effort Lead State Agencies
are required to maintain each fiscal year in accordance with 49 CFR
350.301. Maintenance of effort is also referred to as ``maintenance of
expenditure'' and ``level of effort.''
New Entrant Safety Audits means the safety audits of interstate,
and, at the State's discretion, intrastate, new entrant motor carriers
under 49 U.S.C. 31144(g) that are required as a condition of MCSAP
eligibility under Sec. 350.201(z).
* * * * *
Operating authority means the registration required by 49 U.S.C.
13902 and 31144, 49 CFR parts 365 and 368, and Sec. 392.9a.
Plan--see Commercial Vehicle Safety Plan or CVSP.
State or States means all of the States, the District of Columbia,
the Commonwealth of Puerto Rico, the Commonwealth of the Northern
Mariana Islands, American Samoa, Guam, and the Virgin Islands.
0
6. Section 350.107 is revised to read as follows:
Sec. 350.107 What entities are eligible for funding under this part?
(a) For MCSAP, all of the States, the District of Columbia, the
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana
Islands, American Samoa, Guam, and the Virgin Islands are eligible to
receive MCSAP grants directly from FMCSA.
(b) For the High Priority Program, the Administrator may make
discretionary grants to and enter into cooperative agreements with
States, local governments, federally recognized Indian tribes, other
political jurisdictions as necessary, and any person to carry out high
priority activities and projects that augment motor carrier safety
activities and to States for projects planned in accordance with the
Innovative Technology Deployment Program.
0
7. The heading for Sec. 350.109 is revised to read as follows:
Sec. 350.109 What are the national Motor Carrier Safety Assistance
Program (MCSAP) elements?
* * * * *
0
8. Add Sec. 350.110 to read as follows:
Sec. 350.110 What are the national High Priority Program elements?
FMCSA may generally use these funds to support, enrich, or evaluate
State CMV safety programs and to accomplish the objectives listed
below:
[[Page 71011]]
(a) Increase public awareness and education on commercial motor
vehicle safety.
(b) Target unsafe driving of commercial motor vehicles and
noncommercial motor vehicles in areas identified as high risk crash
corridors.
(c) Improve the safe and secure movement of hazardous materials.
(d) Improve safe transportation of goods and persons in foreign
commerce.
(e) Demonstrate new technologies to improve commercial motor
vehicle safety.
(f) Support participation in performance and registration
information systems management developed under 49 U.S.C. 31106--
(1) For entities not responsible for submitting the CVSP under this
part, or
(2) For entities responsible for submitting the CVSP under this
part--
(i) Before October 1, 2020, to achieve compliance with the
requirements of participation; and
(ii) Beginning October 1, 2020, or once compliance is achieved,
whichever is sooner, for special initiatives or projects that exceed
routine operations required for participation.
(g) Conduct Safety Data improvement Projects--
(1) That complete or exceed the requirements of the program
developed to meet Sec. 350.201(r) of this part for entities not
responsible for submitting the CVSP under this part; or
(2) That exceed the requirements of the program developed to meet
Sec. 350.201(r) of this part for entities that are responsible for
submitting the CVSP under this part.
(h) Otherwise improve commercial motor vehicle safety regulations.
0
9. Revise Sec. 350.201 to read as follows:
Sec. 350.201 What conditions must a State meet to qualify for MCSAP
Funds?
To qualify for MCSAP Funds, each State must:
(a) Assume responsibility for improving motor carrier safety by
adopting and enforcing State safety laws and regulations, standards,
and orders that are compatible with Federal regulations, the FMCSRs (49
CFR parts 390-397) and the HMRs (49 CFR parts 107 (subparts F and G
only), 171-173, 177, 178 and 180), and standards, and orders of the
Federal Government, except as may be determined by the Administrator to
be inapplicable to a State enforcement program.
(b) Implement performance-based activities, including deployment
and maintenance of technology to enhance the efficiency and
effectiveness of CMV safety programs.
(c) Designate a Lead State Agency responsible for administering the
CVSP throughout the State.
(d) Give satisfactory assurances that the Lead State Agency has or
will have the legal authority, resources, and qualified personnel
necessary to enforce the FMCSRs and HMRs or compatible State laws or
regulations, standards and orders in the CVSP.
(e) Give satisfactory assurances that the State will devote
adequate resources to the administration of the CVSP including the
enforcement of the FMCSRs, HMRs, or compatible State laws, regulations,
standards, and orders throughout the State.
(f) Provide that the total expenditure of amounts of the Lead State
Agency responsible for administering the Plan will be maintained at a
level of effort each fiscal year in accordance with 49 CFR 350.301.
(g) Provide a right of entry (or other method a State may use that
is adequate to obtain necessary information) and inspection to carry
out the CVSP.
(h) Provide that all reports required in the CVSP under this
section be available to FMCSA upon request.
(i) Provide that the Lead State Agency adopt the reporting
standards and use the forms for recordkeeping, inspections, and
investigations that FMCSA prescribes.
(j) Require all registrants of CMVs to demonstrate their knowledge
of applicable FMCSRs, HMRs, or compatible State laws or regulations,
standards, and orders.
(k) Grant maximum reciprocity for inspections conducted under the
North American Inspection Standards through the use of a nationally
accepted system that allows ready identification of previously
inspected CMVs.
(l) Ensure that activities described in 49 CFR 350.309, if financed
through MCSAP funds, will not diminish the effectiveness of the
development and implementation of the programs to improve motor
carrier, CMV, and driver safety.
(m) Ensure that the Lead State Agency will coordinate the CVSP,
data collection and information systems, with the State highway safety
improvement program under 23 U.S.C. 148(c).
(n) Ensure participation in appropriate FMCSA information
technology and data systems and other information systems by all
appropriate jurisdictions receiving funding under this section.
(o) Ensure information is exchanged with other States in a timely
manner.
(p) Provide satisfactory assurances that the State will undertake
efforts that will emphasize and improve enforcement of State and local
traffic laws and regulations related to CMV safety.
(q) Provide satisfactory assurances that the State will address
activities in support of the national program elements listed in Sec.
350.109, including the following three activities:
(1) Activities aimed at removing impaired CMV drivers from the
highways through adequate enforcement of regulations on the use of
alcohol and controlled substances and by ensuring ready roadside access
to alcohol detection and measuring equipment.
(2) Activities aimed at providing training to MCSAP personnel to
recognize drivers impaired by alcohol or controlled substances.
(3) Activities related to criminal interdiction, including human
trafficking, when conducted with an appropriate CMV inspection, and
appropriate strategies for carrying out those interdiction activities,
including interdiction activities that affect the transportation of
controlled substances (as defined in section 102 of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802) and
listed in part 1308 of title 21, Code of Federal Regulations) by any
occupant of a CMV.
(r) Establish and dedicate sufficient resources to a program to
ensure that accurate, complete, and timely motor carrier safety data
are collected and reported, and to ensure the State's participation in
a national motor carrier safety data correction system prescribed by
FMCSA.
(s)(1) Provide that the State will enforce registration (i.e.,
operating authority) requirements under 49 U.S.C. 13902 and 31134, and
49 CFR 392.9a by prohibiting the operation of (i.e., placing out of
service) any vehicle discovered to be operating without the required
operating authority or beyond the scope of the motor carrier's
operating authority.
(2) Ensure that the State will cooperate in the enforcement of
financial responsibility requirements under 49 U.S.C. 13906, 31138,
31139, and 49 CFR part 387.
(t) Ensure consistent, effective, and reasonable sanctions.
(u) Ensure that roadside inspections will be conducted at locations
that are adequate to protect the safety of drivers and enforcement
personnel.
(v) Provide that the State will include in the training manual for
the licensing examination to drive a CMV and the training manual for
the licensing examination to drive a non-CMV information on best
practices for driving
[[Page 71012]]
safely in the vicinity of non-CMVs and CMVs.
(w) Provide that the State will conduct comprehensive and highly
visible traffic enforcement and CMV safety inspection programs in high-
risk locations and corridors.
(x) Except in the case of an imminent or obvious safety hazard,
ensure that an inspection of a vehicle transporting passengers for a
motor carrier of passengers is conducted at a bus station, terminal,
border crossing, maintenance facility, destination, or other location
where a motor carrier may make a planned stop (excluding a weigh
station).
(y) Ensure that it transmits to roadside inspectors the notice of
each Federal exemption under 49 U.S.C. 31315(b) and 49 CFR 390.23 and
390.25 provided to the State by FMCSA, including the name of the person
granted the exemption and any terms and conditions that apply to the
exemption.
(z) Except for a territory of the United States, conduct new
entrant safety audits of interstate and, at the State's discretion,
intrastate new entrant motor carriers under 49 U.S.C. 31144(g). The
State must verify the quality of the work conducted by a third party
authorized to conduct new entrant safety audits under 49 U.S.C.
31144(g) on its behalf and the State remains solely responsible for the
management and oversight of the activities.
(aa) Agree to fully participate in performance and registration
information systems management under 49 U.S.C. 31106(b) not later than
October 1, 2020, by complying with the conditions for participation
under paragraph (3) of that section, or demonstrate to the FMCSA an
alternative approach for identifying and immobilizing a motor carrier
with serious safety deficiencies in a manner that provides an
equivalent level of safety.
(bb) In the case of a State that shares a land border with another
country, conduct a border CMV safety program focusing on international
commerce that includes enforcement and related projects or forfeit all
funds based on border-related activities.
(cc) Comply with the requirements of the innovative technology
deployment program in 49 U.S.C. 31102(l)(3) if the State funds
operation and maintenance costs associated with innovative technology
deployment with its MCSAP funding.
0
10. Add Sec. 350.203 to read as follows:
Sec. 350.203 What conditions must an applicant meet to qualify for
High Priority Program Funds?
(a) States must meet the requirements of Sec. 350.201, as
applicable.
(b) If applicable, other applicants, as described in Sec. 350.107,
must meet the following conditions:
(1) Prepare a proposal in accordance with Sec. 350.213, and
coordinate the proposal with the Lead State Agency to ensure the
proposal is consistent with State and national CMV safety program
priorities.
(2) Prepare a proposal that is responsive to the notice of funding
availability.
(3) Certify that the applicant has the legal authority, resources,
and trained and qualified personnel necessary to perform the functions
specified in the proposal.
(4) Designate a person who will be responsible for implementation,
reporting, and administering the approved proposal and will be the
primary contact for the project.
(5) Agree to fund up to 15 percent of the proposed request.
(6) Agree to prepare and submit all reports required in connection
with the proposal or other conditions of the grant or cooperative
agreement.
(7) Agree to use the forms and reporting criteria required by the
Lead State Agency and/or the FMCSA to record work activities to be
performed under the proposal.
(8) Certify that the local agency will impose sanctions for
violations of CMV and driver laws and regulations that are consistent
with those of the State.
(9) Certify participation in national databases appropriate to the
project.
0
11. Amend Sec. 350.205 by revising paragraph (a) to read as follows:
Sec. 350.205 How and when does a State apply for MCSAP funding?
(a) The Lead State Agency must submit the State's CVSP to FMCSA, on
or before August 1 of each year.
* * * * *
0
12. Add Sec. 350.206 to read as follows:
Sec. 350.206 How and when does one apply for High Priority Program
funding?
The FMCSA establishes and publishes application instructions and
criteria for eligible activities to be funded with financial assistance
agreements under this section in a notice of funding availability which
is published at least 30 days before the financial assistance program
application period closes.
0
13. Revise Sec. 350.207 to read as follows:
Sec. 350.207 What response does a State receive to its CVSP
submission?
(a) FMCSA will notify the State, in writing, within 30 days of
receipt of the CVSP whether FMCSA--
(1) Approves the CVSP; or
(2) Withholds approval of the CVSP because it does not meet the
requirements of this part, or is not adequate to ensure effective
enforcement of the FMCSRs and HMRs or compatible State laws and
regulations.
(b) If FMCSA withholds approval--
(1) FMCSA will give the State a written explanation of the reasons
for withholding approval of the CVSP and allow the State to modify and
resubmit the CVSP for approval.
(2) The State will have 30 days from the date of the notice to
modify and resubmit the CVSP.
(c) Disapproval of a resubmitted CVSP is final for that fiscal
year.
(d) Any State aggrieved by an adverse decision under this section
may seek judicial review under 5 U.S.C. chapter 7.
0
14. Add Sec. 350.208 to read as follows:
Sec. 350.208 What response will the applicant for a High Priority
Program receive?
(a) If the grant or cooperative agreement is approved, the
applicant will receive a grant agreement to execute.
(b) If the grant or cooperative agreement is denied, the applicant
will receive a letter of denial from the Agency.
0
15. Add Sec. 350.210 to read as follows:
Sec. 350.210 How does an applicant demonstrate it satisfies the
conditions for High Priority Program Funding?
An applicant for a High Priority Program Grant or cooperative
agreement should refer to Sec. 350.203. There is no separate
certification for this program.
0
16. Revise Sec. 350.211 to read as follows:
Sec. 350.211 What is the format of the certification required by
Sec. 350.209?
The State's certification must be consistent with the following
content: I (name), (title), on behalf of the State (or Commonwealth) of
(State), as requested by the Administrator as a condition of approval
of a grant under the authority of 49 U.S.C. 31102, as amended, do
hereby certify as follows:
(a) The State has adopted commercial motor carrier and highway
hazardous materials safety regulations, standards and orders that are
compatible with the FMCSRs and the HMRs, and the standards and orders
of the Federal Government.
[[Page 71013]]
(b) The State has designated (name of Lead State Agency) as the
Lead State Agency to administer the Commercial Vehicle Safety Plan
throughout the State for the grant sought and (names of agencies) to
perform defined functions under the CVSP. The Lead State Agency has the
legal authority, resources, and qualified personnel necessary to
enforce the State's commercial motor carrier, driver, and highway
hazardous materials safety laws, regulations, standards, and orders.
(c) The State will obligate the funds or resources necessary to
provide a matching share to the Federal assistance provided in the
grant to administer the Plan submitted and to enforce the State's
commercial motor carrier safety, driver, and hazardous materials laws,
regulations, standards, and orders in a manner consistent with the
approved Plan.
(d) The laws of the State provide the State's enforcement officials
right of entry (or other method a State may use that is adequate to
obtain the necessary information) and inspection sufficient to carry
out the purposes of the CVSP, as approved, and provide that the State
will grant maximum reciprocity for inspections conducted pursuant to
the North American Standard Inspection procedure, through the use of a
nationally accepted system allowing ready identification of previously
inspected CMVs.
(e) The State requires that all reports relating to the program be
submitted to the appropriate State agency or agencies, and the State
will make these reports available, in a timely manner, to the FMCSA on
request.
(f) The State has uniform reporting requirements and uses FMCSA-
designated forms for record keeping, inspection, investigations, and
other enforcement activities.
(g) The State has in effect a requirement that all registrants of
CMVs demonstrate their knowledge of the applicable Federal or State CMV
safety laws or regulations.
(h) The State must ensure that the total expenditure of amounts of
the Lead State Agency will be maintained at a level of effort each
fiscal year in accordance with 49 CFR 350.301.
(i) The State will ensure that MCSAP-funded enforcement of
activities under 49 CFR 350.309 will not diminish the effectiveness of
the development and implementation of the programs to improve motor
carrier, CMV, and driver safety.
(j) The State will ensure that CMV size and weight enforcement
activities funded with MCSAP funds will not diminish the effectiveness
of other CMV safety enforcement programs.
(k) The State will ensure that violation sanctions imposed and
collected by the State are consistent, effective, and reasonable.
(l) The State will:
(1) Establish and dedicate sufficient resources to a program to
provide FMCSA with accurate, complete, and timely reporting of motor
carrier safety information that includes documenting the effects of the
State's CMV safety programs;
(2) Participate in a national motor carrier safety data correction
program (DataQs);
(3) Participate in appropriate FMCSA systems including information
technology and data systems and other information systems; and
(4) Ensure information is exchanged in a timely manner with other
States.
(m) The State will ensure that the Plan, data collection, and
information data systems are coordinated with the State highway safety
improvement program under sec. 148(c) of title 23, U.S. Code. The name
of the Governor's highway safety representative (or other authorized
State official through whom coordination was accomplished) is ______.
(Name)
(n) The State has undertaken efforts to emphasize and improve
enforcement of State and local traffic laws and regulations as they
pertain to CMV safety.
(o) The State will ensure that it has departmental policies
stipulating that roadside inspections will be conducted at locations
that are adequate to protect the safety of drivers and enforcement
personnel.
(p) The State will ensure that MCSAP-funded personnel, including
sub-grantees, meet the minimum Federal standards set forth in 49 CFR
part 385, subpart C, for training and experience of employees
performing safety audits, compliance reviews, or driver/vehicle
roadside inspection.
(q) The State will enforce registration (i.e., operating authority)
requirements under 49 U.S.C 13902, 31134, and 49 CFR 392.9a by
prohibiting the operation of any vehicle discovered to be operating
without the required registration or beyond the scope of the motor
carrier's registration.
(r) The State will cooperate in the enforcement of financial
responsibility requirements under 49 U.S.C. 13906, 31138, 31139, and 49
CFR part 387.
(s) The State will include, in the training manual for the
licensing examination to drive a non-CMV and the training manual for
the licensing examination to drive a CMV, information on best practices
for safe driving in the vicinity of noncommercial and commercial motor
vehicles.
(t) The State will conduct comprehensive and highly visible traffic
enforcement and CMV safety inspection programs in high-risk locations
and corridors.
(u) The State will ensure that, except in the case of an imminent
or obvious safety hazard, an inspection of a vehicle transporting
passengers for a motor carrier of passengers is conducted at a bus
station, terminal, border crossing, maintenance facility, destination,
or other location where motor carriers may make planned stops
(excluding a weigh station).
(v) The State will transmit to roadside inspectors the notice of
each Federal exemption under 49 U.S.C. 31315(b) and 49 CFR 390.23 and
390.25 as provided to the State by FMCSA, including the name of the
entity granted the exemption and any terms and conditions that apply to
the exemption.
(w) Except for a territory of the United States, the State will
conduct safety audits of interstate and, at the State's discretion,
intrastate new entrant motor carriers under 49 U.S.C. 31144(g). The
State will verify the quality of the work conducted by a third party
authorized to conduct safety audits under 49 U.S.C. 31144(g) on its
behalf and the State remains solely responsible for the management and
oversight of the activities.
(x) The State fully participates in the performance and
registration information systems management under 49 U.S.C. 31106(b)
not later than October 1, 2020, or demonstrates to FMCSA an alternative
approach for identifying and immobilizing a motor carrier with serious
safety deficiencies in a manner that provides an equivalent level of
safety.
(y) In the case of a State that shares a land border with another
country, the State will conduct a border CMV safety program focusing on
international commerce that includes enforcement and related projects
or it will forfeit all MCSAP funds based on border-related activities.
(z) If a State meets all MCSAP requirements and funds operation and
maintenance costs associated with innovative technology deployment with
MCSAP funds, the State agrees to comply with the Innovative Technology
Deployment requirements established pursuant to 49 CFR 350.310 and
350.311.
Date-------------------------------------------------------------------
Signature--------------------------------------------------------------
[[Page 71014]]
0
17. Amend Sec. 350.213 by revising paragraphs (b)(3) and (4) to read
as follows:
Sec. 350.213 What must a State CVSP include?
* * * * *
(b) * * *
(3) Criminal interdiction activities, including human trafficking,
and appropriate strategies for carrying out those interdiction
activities, including interdiction activities affecting the
transportation of controlled substances by any occupant of a CMV.
(4) Activities to enforce registration requirements under 49 U.S.C.
13902 and 31134 and to cooperate in the enforcement of financial
responsibility requirements under 49 U.S.C. 13906, 31138 and 31139 and
49 CFR part 387.
* * * * *
0
18. Amend Sec. 350.215 by revising paragraph (e) to read as follows:
Sec. 350.215 What are the consequences for a State that fails to
perform according to an approved CVSP or otherwise fails to meet the
conditions of this part?
* * * * *
(e) Any adverse decision will result in FMCSA--
(1) Withdrawing approval of the Plan and withholding all MCSAP
funding; or
(2) Finding the State in noncompliance and withholding--
(i) Up to 5 percent of MCSAP funds during the fiscal year that the
FMCSA notifies the State of its noncompliance;
(ii) Up to 10 percent of MCSAP funds for the first full fiscal year
of noncompliance;
(iii) Up to 25 percent of MCSAP funds for the second full fiscal
year of noncompliance; and
(iv) Not more than 50 percent of MCSAP funds for the third and any
subsequent full fiscal year of noncompliance.
* * * * *
0
19. Revise Sec. 350.301 to read as follows:
Sec. 350.301 What level of effort must a State maintain to qualify
for MCSAP funding?
(a) Each fiscal year, the State must maintain the average aggregate
expenditure (level of effort) of the Lead State Agency, exclusive of
Federal funds and State matching funds, for CMV safety programs
eligible for funding under this part at a level at least equal to the
average level of that expenditure for fiscal years 2004 and 2005.
(b) In determining a State's average level of effort, FMCSA--
(1) May allow the State to exclude State expenditures for federally
sponsored demonstration and pilot CMV safety programs and strike
forces.
(2) May allow the State to exclude expenditures for activities
related to border enforcement and new entrant safety audits;
(3) Shall require the State to exclude Federal funds; and
(4) Shall require the State to exclude State matching funds.
(c) The State must include costs associated with activities
performed during the base period by the Lead State Agency that receives
funds under this part. It must include only those activities which meet
the current requirements for funding eligibility under the grant
program.
(d) States may use amounts generated under 49 U.S.C. 14504a as part
of the State's maintenance of effort, provided the amounts are not
applied to the match required under 49 CFR 350.303.
(e) Waivers and Modifications--Upon the request of a State, FMCSA
may waive or modify the requirements of this section for a total of 1
fiscal year per request if FMCSA determines that the waiver or
modification is reasonable, based on circumstances described by the
State.
0
20. Revise Sec. 350.303 to read as follows:
Sec. 350.303 What are the State and Federal shares of expenses
incurred under the MCSAP and High Priority Program?
(a) FMCSA will reimburse at least 85 percent of the eligible costs
incurred under the MCSAP and High Priority Program.
(b) In-kind contributions are acceptable in meeting the matching
share if they represent eligible costs as established by 2 CFR part 200
or FMCSA policy.
(c) States may use amounts generated under 49 U.S.C. 14504a as part
of the State's match required for MCSAP, provided the amounts are not
applied to the maintenance of effort required under Sec. 350.301.
0
21. Revise Sec. 350.305 to read as follows:
Sec. 350.305 Are U.S. Territories subject to the MCSAP matching funds
requirement?
The Administrator waives the requirement for matching funds under
the MCSAP for the Virgin Islands, American Samoa, Guam, and the
Commonwealth of the Northern Mariana Islands.
0
22. Add Sec. 350.308 to read as follows:
Sec. 350.308 How long are High Priority Program funds available?
(a) Funds for CMV safety activities under 49 CFR 350.310(a)-(h)
obligated to an entity will remain available for the rest of the fiscal
year in which they were obligated and the next 2 full fiscal years.
(b) Funds for Innovative Technology Deployment activities under 49
CFR 350.310(i) obligated to a State will remain available for the rest
of the fiscal year in which they were obligated and the next 4 full
fiscal years.
0
23. Amend Sec. 350.309 by revising paragraph (c) and removing
paragraph (d).
The revision reads as follows:
Sec. 350.309 What activities are eligible for reimbursement under the
MCSAP?
* * * * *
(c) The following activities are also eligible for reimbursement
when part of the approved Plan
(1) When accompanied by an appropriate North American Standard
Inspection and inspection report--
(i) Enforcement of CMV size and weight limitations at locations,
excluding fixed-weight facilities, such as near steep grades or
mountainous terrains, where the weight of a CMV can significantly
affect the safe operation of the vehicle, or at ports were intermodal
shipping containers enter and leave the United States; and
(ii) Detection of and enforcement activities taken as a result of
criminal activity, including the trafficking of human beings, in a CMV
or by any occupant, including the operator of the CMV; and
(2) For documented enforcement of State traffic laws and
regulations designed to promote the safe operation of CMVs, including
documented enforcement of such laws and regulations relating to non-
CMVs when necessary to promote the safe operation of CMVs, if--
(i) The number of motor carrier safety activities, including
roadside safety inspections is maintained at a level at least equal to
the average level of such activities conducted in the State in fiscal
years 2004 and 2005; and
(ii) The State does not use more than 10 percent of the MCSAP Basic
funds for enforcement activities relating to non-CMVs necessary to
promote the safe operation of CMVs, unless the Administrator determines
that a higher percentage will result in significant increases in CMV
safety.
0
24. Add Sec. 350.310 to read as follows:
Sec. 350.310 What types of activities and projects are eligible for
reimbursement under the High Priority Program?
The types of activities eligible for reimbursement under the High
Priority Program include:
(a) Increasing public awareness and education about CMV safety;
(b) Targeting unsafe driving of CMVs and non-CMVs in areas
identified as high risk crash corridors;
[[Page 71015]]
(c) Improving the safe and secure movement of hazardous materials;
(d) Improving safe transportation of goods and persons in foreign
commerce;
(e) Demonstrating new technologies to improve CMV safety;
(f) Supporting participation in performance and registration
information systems management (PRISM) under 49 U.S.C. 31106(b)--
(1) For Non-Lead State Agencies; or
(2) For Lead State Agencies--
(i) Before October 1, 2020, to achieve compliance with the
requirements of participation; and
(ii) Beginning on October 1, 2020, or once compliance is achieved,
whichever is sooner, for special initiatives or projects that exceed
routine operations required for participation;
(g) Conducting safety data improvement projects--
(1) That complete or exceed the requirements under 49 U.S.C.
31102(c)(2)(P) for Non-Lead State Agencies; or
(2) That exceed the requirements under 49 U.S.C. 31102(c)(2)(P) for
Lead State Agencies;
(h) Improving CMV safety and compliance with CMV safety
regulations; and
(i) Implementing and maintaining the Innovative Technology
Deployment of CMV information systems and networks in accordance with
49 U.S.C. 31102(l)(3).
0
25. Revise Sec. 350.311 to read as follows:
Sec. 350.311 What specific items are eligible for reimbursement under
the MCSAP and High Priority Program?
(a) FMCSA shall establish criteria for eligible activities to be
funded and publish those criteria in a notice of funding availability
before the MCSAP and High Priority Program application periods.
(b) All reimbursable items must be necessary, reasonable, allocable
and allowable under this part and 2 CFR part 200. The eligibility of
specific items is subject to review by FMCSA. The following types of
expenses are eligible for reimbursement:
(1) Personnel expenses, including recruitment and screening,
training, salaries and fringe benefits, and supervision.
(2) Equipment and travel expenses, including per diem, directly
related to the enforcement of safety regulations, including vehicles,
uniforms, communications equipment, special inspection equipment,
vehicle maintenance, fuel, and oil.
(3) Indirect expenses as allowed by 2 CFR part 200.
(4) Expenses related to data acquisition, storage, and analysis
that are specifically identifiable as program-related to develop a data
base to coordinate resources and improve efficiency, including
operation and maintenance costs related to innovative technology
deployment.
(5) Clerical and administrative expenses, to the extent necessary
and directly attributable to the MCSAP.
(6) Expenses related to the improvement of real property (e.g.,
installation of lights for the inspection of vehicles at night).
Acquisition of real property, land, or buildings are not eligible
costs.
0
26. Revise Sec. 350.313 to read as follows:
Sec. 350.313 How are MCSAP funds allocated?
After deducting administrative expenses authorized in 49 U.S.C.
31104(c), the MCSAP funds are allocated among States with approved
CVSPs in two ways:
(a) As Basic Program Funds in accordance with Sec. 350.323 of this
part,
(b) As Incentive Funds in accordance with Sec. 350.327 of this
part.
Sec. 350.319 [Removed]
0
27. Remove Sec. 350.319:
Sec. 350.321 [Removed]
0
28. Remove Sec. 350.321
0
29. Revise Sec. 350.323 to read as follows:
Sec. 350.323 What criteria are used in the Basic Program Funds
allocation?
(a) First, the funds are distributed proportionally to the States
using the following four, equally weighted (25 percent), factors.
(1) 1997 Road miles (all highways) as defined by the FHWA.
(2) All vehicle miles traveled (VMT) as defined by the FHWA.
(3) Population--annual census estimates as issued by the U.S.
Census Bureau.
(4) Special fuel consumption (net after reciprocity adjustment) as
defined by the FHWA.
(b) Next, the FMCSA will average the funding awarded to a State, or
other equitable amounts, in fiscal years 2013, 2014, and 2015 for--
(1) Border enforcement grants under 49 U.S.C. 31107; and
(2) New entrant audit grants under 49 U.S.C. 31144(g)(5).
(c) FMCSA will add the amount in paragraph (a) of this section to
the amount in paragraph (b) of this section to calculate the total
amount of MCSAP Basic funding.
(d) Subject to the availability of funding and notwithstanding
fluctuations in the data elements used by FMCSA, the initial amounts
resulting from the calculation in paragraph (c) of this section shall
be adjusted to ensure that, for each State, the amount shall not be
less than 97 percent of the average amount of funding received or other
equitable amounts in fiscal years 2013, 2014, and 2015 for--
(1) MCSAP funds under 49 U.S.C. 31102;
(2) Border enforcement grants under 49 U.S.C. 31107; and
(3) New entrant audit grants under 49 U.S.C. 31144(g)(5).
(e) Distribution of Basic Program Funds for Puerto Rico and the
U.S. territories is subject to allocation as follows:
(1) U.S. territories receive a fixed amount of $350,000;
(2) Puerto Rico receives a maximum allocation of 4.944 percent or a
minimum allocation of 0.44 percent or $350,000, whichever is greater.
Sec. 350.329 [Removed]
0
30. Remove Sec. 350.329.
0
31. Amend Sec. 350.331 by:
0
a. Revising paragraph (a);
0
b. Removing paragraph (b);
0
c. Redesignating paragraphs (c) and (d) as paragraphs (b) and (c); and
0
d. Revising newly redesignated paragraph (b) introductory text.
The revisions read as follows:
Sec. 350.331 How does a State ensure its laws and regulations are
compatible with the FMCSRs and HMRs?
(a) States must submit a copy of new or amended State laws or
regulations on CMV safety immediately after the enactment or issuance.
(b) A State must conduct a review of its laws and regulations for
compatibility and report the results of that review in the CVSP in
accordance with Sec. 350.213(l), along with a certification of
compliance, no later than August 1 of each year. The report must
include the following two items:
* * * * *
0
32. Revise Sec. 350.335 to read as follows:
Sec. 350.335 What are the consequences if a State has laws or
regulations incompatible with the Federal regulations?
(a) FMCSA may initiate a proceeding to withdraw Plan approval or
withhold MCSAP funds in accordance with 49 CFR 320.215 in the following
situations:
(1) When a State that currently has compatible CMV safety laws and
regulations pertaining to interstate commerce (i.e., rules identical to
the
[[Page 71016]]
FMCSRs and HMRs or have the same effect as the FMCSRs and identical to
the HMRs) and intrastate commerce (i.e., rules identical to or within
the tolerance guidelines for the FMCSRs and identical to the HMRs)
enacts a law or regulation which results in an incompatible rule;
(2) When a State fails to adopt a new FMCSR or HMR or an amendment
to an FMCSR or HMR within 3 years of its effective date; or
(3) Upon a finding by FMCSA, based upon its own initiative or upon
a petition of any person, including any State, that a State law,
regulation or enforcement practice pertaining to CMV safety, in either
interstate or intrastate commerce, is incompatible with the FMCSRs or
HMRs.
(b) Any decision regarding the compatibility of State law or
regulation with the HMRs that requires an interpretation will be
referred to the Pipeline and Hazardous Materials Safety Administration
of the DOT for such interpretation before proceeding under Sec.
350.215.
Issued under the authority of delegation in 49 CFR 1.87:
September 19, 2016.
T.F. Scott Darling, III,
Administrator.
[FR Doc. 2016-24925 Filed 10-13-16; 8:45 am]
BILLING CODE 4910-EX-P