[Federal Register Volume 59, Number 23 (Thursday, February 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2118]


[[Page Unknown]]

[Federal Register: February 3, 1994]


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Part IV





Department of Transportation





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Federal Highway Administration



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49 CFR Part 350




Motor Carrier Safety Assistance Program; Amendment to Distribution 
Formula; Interim Final Rule
DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 350

[FHWA Docket No. MC-94-4]
RIN 2125-AD30

 
Motor Carrier Safety Assistance Program; Amendment to 
Distribution Formula

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: This document modifies the Motor Carrier Safety Assistance 
Program (MCSAP) distribution formula to allow States with incompatible 
intrastate regulations limited participation in only the basic grant 
program beyond October 1, 1994. It does not change the distribution 
formula pertaining to those States that have achieved compatibility 
with respect to both interstate and intrastate transportation. The 
revised formula is necessary to provide continued funding for States 
that have not achieved full compatibility in the enforcement of safety 
regulations applicable to intrastate transportation. Such States will 
be qualified through formula allocation, rather than suffering absolute 
loss of eligibility after September 30, 1994.

DATES: This interim final rule is effective March 7, 1994. Comments on 
this interim final rule must be received on or before April 4, 1994.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-94-4, 
room 4232, HCC-10, Office of the Chief Counsel, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590. All 
comments received will be available for examination at the above 
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday, 
except legal Federal holidays. Those desiring notification of receipt 
of comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT: Ms. Linda Taylor, Office of Motor 
Carrier Safety Field Operations (202) 366-6308, or Ms. Grace Reidy, 
Office of the Chief Counsel, (202) 366-0834, Federal Highway 
Administration, 400 Seventh Street, SW., Washington, DC 20590. Office 
hours are from 7:45 a.m. to 4:15 p.m., e.t. Monday through Friday, 
except legal Federal holidays.

SUPPLEMENTARY INFORMATION: The Motor Carrier Safety Assistance Program 
(MCSAP) was first authorized in the Surface Transportation Assistance 
Act of 1982 (sec. 404, Pub. L. 97-424, 96 Stat. 2097, 2156) and most 
recently reauthorized by the Intermodal Surface Transportation 
Efficiency Act of 1991 (ISTEA) (sec. 4002, Pub. L. 102-240, 105 Stat. 
1914, 2140) which was signed into law on December 19, 1991. The 
original authorization contained certain conditions States had to meet 
to be eligible for funding. One such condition required each State to 
adopt and enforce commercial motor vehicle safety regulations which are 
compatible with the Federal requirements. Title 49, Code of Federal 
Regulations (CFR), part 350 was amended by a final rule published in 
the Federal Register on September 8, 1992 (57 FR 40946), to reflect the 
mandates of the ISTEA. The amended rule, among other things, defined 
compatibility, with respect to interstate applicability, to mean 
identical with the Federal Motor Carrier Safety Regulations (FMCSR) 
and, with respect to intrastate applicability, to mean within the 
Tolerance Guidelines. The rule also required interstate compatibility 
to be achieved not later than October 1, 1993. The FHWA's Tolerance 
Guidelines, which set the compatibility requirements for intrastate 
regulations, were included in the new regulation as appendix C to part 
350 and future funding under MCSAP was conditioned on achieving 
intrastate compatibility by October 1, 1994.
    With this rulemaking, the FHWA is modifying part 350 to allow 
partial funding of States notwithstanding intrastate incompatibility. 
States that have not achieved full intrastate compatibility will 
receive 50 percent of their basic formula allocation. The formula funds 
which are withheld from those States which do not have compatible 
intrastate regulations will be made available to States with compatible 
comprehensive programs to conduct certain high priority projects that 
are innovative, successful, cost-effective and cost-efficient. This 
change is consistent with the legislative direction in the ISTEA to 
develop an improved distribution formula that both promotes innovative 
programs and provides incentives to States that increase compatibility, 
section 4002(k), Public Law 102-240. It rewards those States that have 
fully compatible interstate and intrastate safety regulations, 
encourages comprehensive programs, and provides funds for high priority 
areas. The amendment will also enable the FHWA to maintain a basic 
commercial motor vehicle inspection program uniformly and universally 
applied by the States through the continued availability of Federal 
funds.
    The FHWA emphasizes that States must continue to meet the 
requirement for interstate compatibility, and this interim final rule 
change will not affect that requirement. The FHWA believes that fully 
compatible safety and hazardous materials regulations are an essential 
element of MCSAP. Through the MCSAP, the FHWA, the States, and the 
Commercial Vehicle Safety Alliance (CVSA) have developed a coordinated, 
nationwide program of uniform inspections, enforcement, and data 
collection. This avoids duplication of efforts by the States and 
promotes compliance by the industry.
    The modification made by this interim final rule continues the 
progress made through MCSAP by permitting States with only intrastate 
variances to continue to participate in the basic program while 
providing a strong incentive for them to adopt and enforce compatible 
intrastate regulations.

Compatible Regulations

    A major goal of the MCSAP is to achieve nationwide uniform 
regulations, laws, and practices. The FHWA has determined that forty-
nine States, the District of Columbia, and three territories have 
adopted compatible rules applicable to interstate commerce. Thirty-six 
States and territories have adopted compatible intrastate rules. This 
is indicative of the significant progress that the States and the FHWA 
have made largely through the MCSAP toward reaching the goal of 
national uniform commercial motor vehicle safety regulations and 
enforcement.
    Ideally, State commercial motor vehicle laws would exactly mirror 
Federal regulations. Indeed, the States are encouraged to adopt 
regulations applicable to both interstate and intrastate commerce which 
are identical to the Federal regulations. Moreover, the FHWA strongly 
encourages States to implement a system which allows them to 
automatically adopt any new Federal regulation, which would preclude 
any question of future incompatibility and reduce the chance of an 
interruption in the States' MCSAP funding. The FHWA recognizes, 
however, that circumstances may exist which make complete adoption by 
the States difficult. The FHWA has therefore provided the States with 
limited flexibility, through the Tolerance Guidelines, to address these 
local issues. In accordance with the ISTEA mandate to issue these 
guidelines in formal regulations, they were included in the FMCSRs as 
appendix C to part 350 (57 FR 174, September 8, 1992). The Tolerance 
Guidelines define the extent to which intrastate regulations can differ 
from the FMCSRs, yet still be considered to be compatible. Additional 
differences and industry exemptions are strongly discouraged. In order 
to gain FHWA's approval of additional differences, a State must carry a 
heavy burden of demonstrating that the difference would have little 
impact on commercial vehicle safety.
    Without this modification to part 350, 13 of the States who are 
currently participating in MCSAP may not qualify for any MCSAP formula 
grants in fiscal year (FY) 1995. These States (Alaska, Arizona, 
California, Iowa, Kentucky, Maine, Maryland, Minnesota, Mississippi, 
Nebraska, Pennsylvania, Washington, and Wisconsin) are allocated a 
combined total of $16.7 million in Federal funds. These States 
conducted a combined total of 530,886 of the 1.6 million driver/vehicle 
inspections done in FY 1992. If the current part 350 requirements are 
not changed as provided in this rule, these States will no longer 
receive any MCSAP funding, which provides a significant portion of the 
resources for them to conduct roadside commercial vehicle and driver 
inspections, safety and compliance reviews, uniform accident and safety 
data collection, drug and alcohol abatement programs and other similar 
activities which have contributed to the significant reduction of 
commercial vehicle accidents on our nation's highways since MCSAP began 
in FY 1984. Thus, the FHWA has concluded that total loss of MCSAP funds 
for these States with some remaining intrastate incompatible rules and 
regulations would have an adverse impact on commercial motor vehicle 
safety.

Change to MCSAP Rule, Part 350

    This change will allow for distribution of 50 percent of the basic 
formula allocation to those States which have incompatible intrastate 
regulations after September 30, 1994. The FHWA has determined that a 50 
percent reduction in an incompatible State's basic formula is 
significant enough to serve as an incentive to the State to enact 
compatible laws. It is believed that a lesser reduction would not send 
as strong a message to those States which still have incompatible 
regulations. Without this change in Part 350, the States with 
incompatible regulations would not be eligible to receive any Federal 
MCSAP funding for FY 1995.
    The formula funds which are withheld from those States which do not 
have compatible intrastate regulations will be made available to States 
with comprehensive programs to conduct certain high priority projects 
that are innovative, successful, cost-efficient and cost-effective. See 
Sec. 4002(k) of the ISTEA. States with incompatible intrastate 
regulations may also request these funds for activities aimed at 
achieving a comprehensive program.
    A comprehensive program is one in which a State has and enforces 
compatible regulations which pertain to both interstate and intrastate 
transportation and has a motor carrier safety program which includes 
roadside inspections; compliance reviews; traffic enforcement; 
hazardous materials training; drug and alcohol enforcement; a fully-
implemented SAFETYNET program, including the National Governors 
Association accident data collection, and as otherwise defined by FHWA 
policy. The FHWA believes that States which integrate these activities 
into their MCSAP have the most effective, cost efficient, and 
successful commercial vehicle safety programs.
    States with comprehensive programs which are applying for these 
redistributed funds should request these funds for high priority 
projects. High priority projects are those projects identified by FHWA, 
in consultation with the States, as having the highest impact on 
commercial motor vehicle and driver safety. Generally, the FHWA would 
not support the use of these funds for activities that create one-time 
personnel hiring which could not be funded in following years. High 
priority projects will change from year to year to support the growth 
of the program. Current high priority projects include advanced brake 
inspection technologies, roadside data collection and communication 
devices, border enforcement to support the North American Free Trade 
Agreement, local commercial vehicle enforcement, and drug and alcohol 
enforcement activities.

Section-by-Section Analysis

Section 350.11  Adopting and Enforcing Compatible Laws and Regulations

    This section is amended to correct an error which appears in 
Sec. 350.11(a). This correction changes the word ``applicable'' to 
``inapplicable'' in paragraph 350.11(a). This subsection provides the 
discretion to allow funding notwithstanding the incompatibility of 
State laws and regulations applicable to intrastate commerce.

Section 350.21  Distribution of Funds

    This section is amended to clarify that full basic allocations will 
only be available to those States which have adopted and are enforcing 
compatible regulations applicable to both interstate and intrastate 
commerce. States with incompatible intrastate regulations will be 
eligible for only 50 percent of the basic formula allocation.

Appendix C to Part 350, Tolerance Guidelines for Adopting Compatible 
State Rules and Regulations

    A paragraph is added to appendix C which allows limited funding for 
States which have incompatible intrastate regulations.

Rulemaking Analyses and Notices

Administrative Procedure Act

    The FHWA has waived prior notice and opportunity for public comment 
on this rule because it believes that such prior notice and opportunity 
for public comment, at this time, would be contrary to public interest 
within the meaning of section 4(b)(3)(B) of the Administrative 
Procedure Act, 5 U.S.C. 553(b)(3)(B).
    The final MCSAP rule published on September 8, 1992, indicated that 
States must achieve compatibility with Federal safety rules within 
published Tolerance Guidelines by October 1, 1994, the first day of 
Federal fiscal year 1995. Based on State submissions for Federal fiscal 
year 1994, the FHWA now believes that 13 States have not yet achieved 
an acceptable level of compliance for intrastate safety rules and, 
unless changes are made in such State laws, these States will lose all 
MCSAP funding on October 1, 1994. Each of these States, however, has 
achieved full interstate compliance and substantial intrastate 
compliance. The FHWA has decided that it should revise the amount of 
MCSAP funds subject to reduction due to a lack of intrastate 
compatibility to ensure that important safety programs may be continued 
in the States while providing an incentive to States to achieve further 
intrastate compatibility with Federal motor carrier safety rules.
    By promulgating an interim final rule at this time, the FHWA hopes 
to provide State legislatures sufficient time to consider amendments to 
State laws, if necessary. Typically, State legislatures meet during the 
first three months of the calendar year. While the FHWA notes that the 
effect of this interim final rule is to lessen the reduction in MCSAP 
funds States will experience unless they revise their intrastate rules, 
the FHWA also recognizes that this action will reinforce for the States 
the consequences of this incompatibility. Concurrent with this action, 
the FHWA is writing to the 13 affected States explaining the basis for 
determining that their intrastate rules do not fall within the 
Tolerance Guidelines.
    Likewise, the FHWA believes that adopting an interim final rule at 
this time will provide State agencies with adequate time to adjust 
their programs to accommodate lower MCSAP funding levels before October 
1, 1994. If the FHWA delays this action to accept public comment before 
taking the action, the FHWA believes that States will not have adequate 
notice before October 1, 1994, to take action to avoid the reduction in 
MCSAP funds or to plan accordingly.
    For these reasons, the FHWA finds that it would be contrary to the 
public interest to provide notice and opportunity for public comment 
before issuing this rule. Nevertheless, the FHWA is opening a public 
docket for this rule and providing 60 days for the receipt of public 
comment. The FHWA will consider all comments received during this 60 
day period in determining whether any revision is necessary to the rule 
published today.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this document does not contain 
significant regulatory action under Executive Order 12866 or a 
significant regulation under the regulatory polices and procedures of 
the DOT. It is anticipated that the economic impact of this rulemaking 
will be minimal; therefore, a full regulatory evaluation is not 
required. There should be no economic impact on private entities as the 
action is entirely related to adjusting distribution of funds to public 
entities to maintain or enhance enforcement of safety regulations. This 
rule will allow the 13 States with identified intrastate 
incompatibilities to remain in the MCSAP at a 50 percent funding level. 
The additional funds made available from these incompatible States will 
potentially provide increased funding for innovative and high priority 
projects for the States with comprehensive programs.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small 
entities. Based on the evaluation, the FHWA hereby certifies that this 
action will not have a significant economic impact on a substantial 
number of small entities. This rule relates to the requirements States 
must meet to qualify for Federal funding under the MCSAP. This rule 
does not impose any direct requirement on small entities that will 
result in increased economic costs.

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 12612. This is a grant program to 
induce States to adopt compatible safety regulations. The effect of the 
change adopted today will be to reduce the impact on States that have 
made substantial efforts to adopt compatible regulations, but which do 
not fully comply. The action increases the individual discretion of 
States which would otherwise lose access to Federal funds because of 
exemptions and other tolerances applicable to wholly intrastate 
transportation.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities apply to this program.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1980, 44 
U.S.C. 3501-3520.

National Environmental Policy Act

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et. seq.) and has 
determined that this action would not have any effect on the quality of 
the environment.

Regulation Identification Number

    A regulation identification number (RIN) is assigned to each 
regulatory action listed in the Unified Agenda of Federal Regulations. 
The Regulatory Information Service Center publishes the Unified Agenda 
in April and October of each year. The RIN contained in the heading of 
this document can be used to cross reference this action with the 
Unified Agenda.

List of Subjects in 49 CFR Part 350

    Grant programs--transportation, Highway safety, Highways and roads, 
Motor carriers, Motor vehicle safety, Penalties, Uniformity.

    Issued on: January 25, 1994.
Rodney E. Slater,
Federal Highway Administrator.

    In consideration of the foregoing, the FHWA is amending title 49, 
Code of Federal Regulations, subtitle B, chapter III, part 350 as 
follows:

PART 350--[AMENDED]

    1. The authority citation for part 350 continues to read as 
follows:

    Authority: 49 U.S.C. app. 2301-2304, 2505-2507; 49 U.S.C. 3102; 
Secs. 401-404, Pub. L. 97-424, 96 Stat. 2097, 2154; Sec. 15(d), Pub. 
L. 101-500, 104 Stat. 1213, 1219; Secs. 4002 and 4009, Pub. L. 102-
240, 105 Stat. 2140; and 49 CFR 1.48.

    2. Section 350.11 is amended by revising paragraph (a) to read as 
follows:


Sec. 350.11  Adopting and enforcing compatible laws and regulations.

    (a) No funds shall be awarded under this part to States that do not 
adopt and enforce laws and regulations that are compatible with the 
FMCSR (except as may be determined by the Administrator to be 
inapplicable) and the FHMR, unless otherwise provided in the Tolerance 
Guidelines (appendix C to this part).
* * * * *
    3. Section 350.21 is amended by adding paragraph (d)(3) to read as 
follows:


Sec. 350.21  Distribution of funds.

* * * * *
    (d) * * *
    (3) Beginning on October 1, 1994, and each October 1 thereafter, 
more than 50 percent of the basic formula allocation provided for in 
this section if any such State has adopted and is enforcing compatible 
regulations applicable to interstate transportation, but has not 
adopted or is not enforcing compatible regulations applicable to 
intrastate transportation.
* * * * *


Appendix C  [Amended]

    4. Appendix C to part 350 is amended by adding a new paragraph (j) 
under item number 3 to read as follows:
* * * * *

3. Tolerance Guidelines for State Rules and Regulations Where the U.S. 
Department of Transportation Regulations do not apply

* * * * *
    (j) States whose rules and regulations do not meet these 
guidelines may still be considered qualified for participation under 
Sec. 350.21. However, their formula allocations for basic grant 
funds will be subject to the limitations of Sec. 350.21 (d).
[FR Doc. 94-2118 Filed 2-2-94; 8:45 am]
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