[Federal Register Volume 59, Number 236 (Friday, December 9, 1994)]
[Unknown Section]
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From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-30335]


[[Page Unknown]]

[Federal Register: December 9, 1994]


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INTERSTATE COMMERCE COMMISSION

49 CFR Parts 1002, 1160, 1161, 1162, 1163, and 1166

[Ex Parte No. 55 (Sub-No. 94)]

Revision of Application Procedures and Corresponding Regulations

[Ex Parte No. 55 (Sub-No. 86)]

 

Revision of Licensing Application Forms and Corresponding 
Regulations

AGENCY: Interstate Commerce Commission.

ACTION: Final rules.

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SUMMARY: The Commission adopts final rules and revised application 
forms for licensing proceedings involving motor and water carriers of 
property and passengers, property brokers, and household goods freight 
forwarders. The revised forms and procedures implement the Trucking 
Industry Regulatory Reform Act (TIRRA), Title II of the Hazardous 
Materials Transportation Act of 1994, Public Law 103-311 (August 26, 
1994), which significantly amended licensing standards for non-
household goods property carriers effective January 1, 1995.
    The revisions adopted here also streamline and simplify licensing 
procedures for all categories of applicants by replacing the 
comprehensive licensing application (Form OP-1) presently used with a 
series of four transportation mode-specific forms.

EFFECTIVE DATE: The rule and application form revisions announced here 
will become effective January 1, 1995.

FOR FURTHER INFORMATION CONTACT: Suzanne Higgins O'Malley, (202) 927-
7597 or Richard B. Felder, (202) 927-6373. [TDD for the hearing 
impaired: (202) 927-5721.]

SUPPLEMENTARY INFORMATION: Revised rules and application procedures 
were proposed in the Commission's notice published at 59 FR 51546 
(October 12, 1994). In response to the comments, some procedural and 
clarifying revisions to the rules have been made. These changes 
represent a continuation of our efforts to streamline, rationalize, and 
simplify the licensing process for all applicants as initiated in Ex 
Parte No. 55 (Sub-No. 84), Revision of Licensing Application forms and 
Corresponding Regulations, notice of proposed rulemaking, 57 FR 37761 
(August 20, 1992), supplemental notice of proposed rulemaking, 58 FR 
48628 (September 17, 1993).
    Additional information is contained in the Commission's decision. 
To purchase a copy of the full decision, write to, call, or pick up in 
person from Dynamic Concepts, Inc., Room 2229, Interstate Commerce 
Commission Building, Washington, DC, 20423. Telephone: (202) 289-4357/
4359.

(Assistance for the hearing impaired is available through TDD 
service--(202) 927-5721)

Environmental and Energy Considerations

    We ratify our preliminary conclusion that the revised application 
forms and corresponding rules revisions adopted here will not 
significantly affect either the quality of the human environment or 
conservation of energy resources.

Regulatory Flexibility Analysis

    Under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. [RFA], 
we have examined the impact of this proposed action on small businesses 
and small organizations. We expect that the revised application form 
and corresponding regulations will result in significant cost savings 
to both applicants and the Commission over the long term and will 
present immediate benefits of simplified administrative processes and 
expedited licensing procedures. Despite the clear prospects for cost 
savings and enhanced administrative efficiencies, we do not anticipate 
that the proposal will have a significant economic impact as 
contemplated by RFA standards. The projected impact on individual small 
entities, albeit positive, will be incremental and clearly not 
substantial within the meaning of RFA.
    Under 5 U.S.C. 605(b), we, therefore, conclude that our action will 
not have a significant economic impact on a substantial number of small 
entities. No new regulatory requirements are imposed, directly or 
indirectly, on such entities. The purpose and anticipated effect of the 
revised application forms and corresponding rule revisions is to reduce 
regulatory burdens. The economic impact on small entities, if any, will 
be to reduce licensing costs, but, as noted, is not likely to be 
significant within the meaning of the RFA. Paperwork Reduction Analysis
    We have submitted notice of this proceeding and the revised forms 
to the Office of Management and Budget (OMB) for review under Section 
3504(h) of the Paperwork Reduction Act of 1980 (44 U.S.C. Chapter 35).
    We estimate that an average of 2.5 burden hours will be required to 
complete the proposed forms in the OP-1 series as compared with 4 
burden hours for the application form currently used. This expected 
reduction in response time is attributable not only to elimination of 
the public need/public interest evidence requirements for non-household 
goods motor property applicants, as mandated by TIRRA, but also to the 
simplified response format and instructions. Accordingly, we anticipate 
that the reduced completion burden will be realized by applicants in 
all motor carrier industry segments, not merely those directly affected 
by TIRRA.
    The annual reporting burden ascribed to the Form OP-1 in the 
current OMB inventory is 64,000 hours, based on an estimate of 4 burden 
hours per filing and 16,000 Form OP-1 filings per year at the time the 
estimate was submitted. We anticipate that this annual reporting burden 
will be reduced to approximately 42,500 hours.
    This estimate is based on our expectation that licensing 
application filings will rise slightly over those recorded in fiscal 
year 1993 (to approximately 18,000). This projection reflects at least 
a short-term increased interest in obtaining motor common carrier 
authority due to TIRRA's elimination of individual tariff filing 
requirements for non-household goods motor property carriers.
    The estimated burden hours include time for reviewing instructions, 
searching existing data sources, gathering and maintaining the data 
needed, and completing and reviewing the collection of information. The 
reduced reporting burden estimated here does not reflect further 
reductions in the Commission's overall reporting burden occasioned by 
the elimination of ETA filings and the significant projected reduction 
in TA filings.

List of Subjects

49 CFR Part 1002

    Administrative practice and procedure, Common carriers, Freedom of 
information, User fees.

49 CFR Part 1160

    Administrative practice and procedure, Brokers, Buses, Freight 
forwarders, Maritime carriers, Motor carriers.

49 CFR Part 1161

    Administrative practice and procedure, Motor carriers.

49 CFR Part 1162

    Administrative practice and procedure, Maritime carriers, Motor 
carriers.

49 CFR Part 1163

    Administrative practice and procedure, Motor carriers.

49 CFR Part 1166

    Administrative practice and procedure, Maritime carriers.

    Decided: December 1, 1994.

    By the Commission, Chairman McDonald, Vice Chairman Morgan, and 
Commissioners Simmons and Owen.
Vernon A. Williams,
Secretary.

    For the reasons set forth in the preamble, title 49, chapter X, 
parts 1002, 1160, and 1166 are amended as follows and under the 
authority of 49 U.S.C. 10321, parts 1161, 1162, and 1163 are removed.

PART 1002--FEES

    1. The authority citation for part 1002 continues to read as 
follows:

    Authority: 5 U.S.C. 552(a)(4)(A), 5 U.S.C. 553, 31 U.S.C. 9701, 
and 49 U.S.C. 10321.

    2. In Sec. 1002.2, paragraphs (c) and (d)(1) are revised to read as 
follows:


Sec. 1002.2  Filing fees.

* * * * *
    (c) Fees not refundable. Fees will be assessed for every filing in 
the type of proceeding listed in the schedule of fees contained in 
paragraph (f) of this section, subject to the exceptions contained in 
paragraphs (d) and (e) of this section. After the application, 
petition, notice, tariff, contract, or other document has been accepted 
for filing by the Commission, the filing fee will not be refunded, 
regardless of whether the application, petition, notice, tariff, 
contract, or other document is granted or approved, denied, rejected 
before docketing, dismissed, or withdrawn. If an individual exemption 
proceeding becomes a matter of general applicability and is handled 
through the rulemaking process, the Commission will refund the filing 
fee.
    (d) * * *
    (1) Separate fees need not be paid for related applications filed 
by the same applicant which would be the subject of one proceeding. 
(This does not mean requests for multiple types of operating authority 
filed on forms in the OP-a series. A separate filing fee is required 
for each type of authority sought in each transportation mode--e.g., 
common, contract and broker authority for motor property carriers.)
* * * * *
    3. Part 1160 is revised to read as follows:

PART 1160--RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY

Subpart A--How to Apply for Operating Authority

Sec.
1160.1  Applications governed by these rules.
1160.2  Modified procedure.
1160.3  Starting the application process: Form OP-1.
1160.4  Types of applications.
1160.5  Commission review of the application.
1160.6  Appeals to rejections of the application.
1160.7  Changing the request for authority or filing supplementary 
evidence after the application is filed.
1160.8  After publication in the ICC Register.
1160.9  Obtaining a copy of the application.
1160.10  Opposed applications.
1160.11  Filing a reply statement.
1160.12  Applicant withdrawal.

Subpart B--How to Oppose Requests for Authority

1160.40  Definitions.
1160.41  Time for filing.
1160.42  Contents of the protest.
1160.43  Withdrawal.

Subpart C--General Rules Governing the Application Process

1160.60  Applicable rules.
1160.61  Contacting another party.
1160.62  Serving copies of pleadings.
1160.63  Replies to motions.
1160.64  FAX filings.

    Authority: 5 U.S.C. 553 and 559; 16 U.S.C. 1456; 49 U.S.C. 
10101, 10305, 10321, 10921, 10922, 10923, 10924, 10928, and 11102.

Subpart A--How to Apply for Operating Authority


Sec. 1160.1  Applications governed by these rules.

    These rules govern the handling of applications for operating 
authority of the following type:
    (a) Applications for certificates and permits to operate as a motor 
common or contract carrier of property or passengers.
    (b) Applications for permits to operate as a household goods 
freight forwarder.
    (c) Applications for certificates, permits, and exemptions for 
water carrier transportation of property and passengers.
    (d) Applications for licenses to operate as a broker of motor 
vehicle transportation.
    (e) Applications for certificates under 49 U.S.C. 10922(c)(2)(A) to 
operate as a motor common carrier of passengers in intrastate commerce 
on a route over which applicant holds interstate authority as of 
November 19, 1982.
    (f) Applications for certificates under 49 U.S.C. 10922(c)(2)(B) to 
operate as a motor common carrier of passengers in intrastate commerce 
on a route over which applicant has been granted or will be granted 
interstate authority after November 19, 1982.
    (g) Applications for temporary motor and water carrier authority.


Sec. 1160.2  Modified procedure.

    The Commission will handle licensing application proceedings using 
the modified procedure, if possible. The applicant and protestants send 
statements made under oath (verified statements) to each other and to 
the ICC. There are no personal appearances or formal hearings.


Sec. 1160.3  Starting the application process: Form OP-1.

    (a) All applicants shall file the appropriate form in the OP-1 
series, effective January 1, 1995. Form OP-1 for motor property 
carriers and brokers of general freight and household goods; Form OP-
1(P) for motor passenger carriers; Form OP-1 (FF) for freight 
forwarders of household goods; and Form OP-1(W) for water carriers. A 
separate filing fee in the amount at 49 CFR 1002.2(f) is required for 
each type of authority sought in each transportation mode.
    (b) Obtain the form at Commission regional and field offices, or 
call the Commission's automated response number at (202) 927-7600.


Sec. 1160.4  Types of applications.

    (a) Fitness applications. Motor property applications and certain 
types of motor passenger applications require only the finding that the 
applicant is fit, willing and able to perform the involved operations 
and to comply with all applicable statutory and regulatory provisions. 
These applications can be opposed only on the grounds that applicant is 
not fit [e.g., is not in compliance with applicable financial 
responsibility and safety fitness requirements]. These applications 
are:
    (1) Motor common and contract carrier of property (except household 
goods) and motor contract carrier of passengers transportation.
    (2) Motor carrier brokerage of general commodities (except 
household goods).
    (3) Certain types of motor passenger applications as described in 
Form OP-1 (P).
    (b) Motor passenger ``public interest'' applications as described 
in Form OP-1 (P).
    (c) Intrastate motor passenger applications under 49 U.S.C. 
10922(c)(2)(A) as described in Form OP-1, Schedule B.
    (d) Motor common carrier of household goods applications. These 
applications require a finding that:
    (1) The applicant is fit, willing, and able to provide the involved 
transportation and to comply with all applicable statutory and 
regulatory provisions; and
    (2) The service proposed will serve a useful public purpose, 
responsive to a public demand or need.
    (e) Motor contract carrier of household goods, water contract 
carrier, household goods property broker, and household goods freight 
forwarder applications. These applications require a finding that:
    (1) The applicant is fit, willing, and able to provide the involved 
transportation and to comply with all applicable statutory and 
regulatory provisions; and
    (2) The transportation to be provided will be consistent with the 
public interest and the national transportation policy of 49 U.S.C. 
10101.
    (f) Water common carrier applications. These applications require a 
finding that:
    (1) The applicant is fit, willing, and able to provide the involved 
transportation and to comply with all applicable statutory and 
regulatory provisions; and
    (2) The transportation to be provided is or will be required by 
present or future public convenience and necessity.
    (g) Temporary authority (TA) for motor and water carriers. These 
applications require a finding that there is or soon will be an 
immediate transportation need that cannot be met by existing carrier 
service.

    Note: In view of the expedited time frames established in this 
part for processing requests for permanent authority, applications 
for TA will be entertained only in exceptional circumstances (i.e., 
natural disasters or national emergencies) when evidence of 
immediate service need can be specifically documented in a narrative 
supplement appended to Form OP-1 for motor property carriers, Form 
OP-1(P) for motor passenger carriers, and Form OP-1(W) for water 
carriers. TA applications must be filed with the Regional Office 
which has jurisdiction over the area in which applicant's 
headquarters are located. Initial determinations of TA applications 
will be made by a Regional Motor Carrier Board.


Sec. 1160.5  Commission review of the application.

    (a) ICC staff will review the application for correctness, 
completeness, and adequacy of the evidence (the prima facie case).
    (1) Minor errors will be corrected without notification to the 
applicant.
    (2) Materially incomplete applications will be rejected. 
Applications that are in substantial compliance with these rules may be 
accepted.
    (3) All motor carrier applications will be reviewed for consistency 
with the Commission's operational safety fitness policy. Applicants 
with ``Unsatisfactory'' safety fitness ratings from DOT will have their 
applications rejected.
    (4) An employee board of the Commission appointed under 
Sec. 1011.6(g) will review completed applications that conform with the 
Commission's safety fitness policy and that are accompanied by evidence 
of adequate financial responsibility.
    (5) Financial responsibility is indicated by filing within 20 days 
from the date an application notice is published in the ICC Register:
    (i) Form BMC-91 or 91X or BMC 82 surety bond--Bodily injury and 
property damage (motor property and passenger carriers; household goods 
freight forwarders that provide pickup or delivery service directly or 
by using a local delivery service under their control).
    (ii) Form BMC-84--Surety bond or Form BMC-85--trust fund agreement 
(property brokers of general commodities and household goods).
    (iii) Form BMC-34 or BMC 83 surety bond--Cargo liability (motor 
property common carriers and household goods freight forwarders).
    (6) Applicants also must submit Form BOC-3--designation of legal 
process agents--within 20 days from the date an application notice is 
published in the ICC Register.
    (7) Applicants seeking to conduct operations for which tariffs are 
required may not commence such operations until tariffs are on file 
with the Commission and in effect.
    (b) A summary of the application will be published as a preliminary 
grant of authority in the ICC Register to give notice to the public in 
case anyone wishes to oppose the application.


Sec. 1160.6  Appeals to rejections of the application.

    (a) An applicant has the right to appeal rejection of the 
application. The appeal must be filed at the Commission within 10 days 
of the date of the letter of rejection.
    (b) If the appeal is successful and the filing is found to be 
proper, the application shall be deemed to have been properly filed as 
of the decision date of the appeal.


Sec. 1160.7  Changing the request for authority or filing supplementary 
evidence after the application is filed.

    (a) Once the application is filed, the applicant may supplement 
evidence only with approval of the Commission.
    (b) Amendments to the application generally are not permitted, but 
in appropriate instances may be entertained at the discretion of the 
Commission.


Sec. 1160.8  After publication in the ICC Register.

    (a) Interested persons have 10 days from the date of ICC Register 
publication to file protests. See Subpart B of this part.
    (b) If no one opposes the application, the grant published in the 
ICC Register will become effective by issuance of a certificate, 
permit, or license.


Sec. 1160.9  Obtaining a copy of the application.

    After publication, interested persons may request a copy of the 
application by contacting the Commission-designated contract agent (as 
identified in the ICC Register), Room 2229, Interstate Commerce 
Commission Building.


Sec. 1160.10  Opposed applications.

    If the application is opposed, opposing parties are required to 
send a copy of their protest to the applicant.


Sec. 1160.11  Filing a reply statement.

    (a) If the application is opposed, applicant may file a reply 
statement. This statement is due within 20 days after ICC Register 
publication.
    (b) The reply statement may not contain new evidence. It shall only 
rebut or further explain matters previously raised.
    (c) The reply statement need not be notarized or verified. 
Applicant understands that the oath in the application form applies to 
all evidence submitted in the application. Separate legal arguments by 
counsel need not be notarized or verified.


Sec. 1160.12  Applicant withdrawal.

    If the applicant wishes to withdraw an application, it shall 
request dismissal in writing.

Subpart B--How to Oppose Requests For Authority


Sec. 1160.40  Definitions.

    A person wishing to oppose a request for permanent authority files 
a protest. A person filing a valid protest becomes a protestant.


Sec. 1160.41  Time for filing.

    A protest shall be filed (received at the Commission) within 10 
days after notice of the application appears in the ICC Register. A 
copy of the protest shall be sent to applicant's representative at the 
same time. Failure timely to file a protest waives further 
participation in the proceeding.


Sec. 1160.42  Contents of the protest.

    (a) All information upon which the protestant plans to rely is put 
into the protest.
    (b) A protest must be verified, as follows:

    I, ____________________, verify under penalty of perjury under 
laws of the United States of America, that the information above is 
true and correct. Further, I certify that I am qualified and 
authorized to file this protest. (See 18 U.S.C. 1001 and 18 U.S.C. 
1621 for penalties.)

(Signature and Date)

    (c) A protest not in substantial compliance with applicable 
statutory standards or these rules may be rejected.
    (d) Protests must respond directly to the statutory standards for 
Commission review of the application. As these standards vary for 
particular types of applications, potential protestants should refer to 
the general criteria addressed at Sec. 1160.4 of this part and may 
consult the Commission at (202) 927-7600 for further assistance in 
developing their evidence.


Sec. 1160.43  Withdrawal.

    A protestant wishing to withdraw from a proceeding shall inform the 
Commission and applicant in writing.

Subpart C--General Rules Governing the Application Process


Sec. 1160.60  Applicable rules.

    Generally, all application proceedings are governed by the 
Commission's Rules of Practice at 49 CFR parts 1100-1105 and 1112-1117, 
except as designated below.


Sec. 1160.61  Contacting another party.

    When a person wishes to contact a party or serve a pleading or 
letter on that party, it shall do so through its representative. The 
phone and FAX numbers and address of applicant's representative shall 
be listed in the ICC Register.


Sec. 1160.62  Serving copies of pleadings.

    (a) An applicant must serve all pleadings and letters on the 
Commission and all known participants in the proceeding, except that a 
reply to a motion need only be served on the moving party.
    (b) A protestant need serve only the Commission and applicant with 
pleadings or letters.


Sec. 1160.63  Replies to motions.

    Replies to motions filed under this part are due within 5 days of 
the date the motion is filed at the Commission.


Sec. 1160.64  FAX filings.

    FAX filings of applications and supporting evidence are not 
permitted. To assist parties in meeting the expedited time frames 
established for protesting an application, however, the Commission will 
accept FAX filings of protests and any reply or rebuttal evidence. FAX 
filings of these pleadings must be followed by the original document, 
plus one copy for Commission recordkeeping purposes.

Parts 1161, 1162, and 1163  [Removed]

    4. Parts 1161, 1162, and 1163 are removed.

PART 1166--EXTENSION OF OPERATIONS BY WATER COMMON CARRIER

    5. The authority citation for part 1166 continues to read as 
follows:

    Authority: 49 U.S.C. 10321 and 10922; 5 U.S.C. 559.


Sec. 1166.3  [Amended].

    6. In Sec. 1166.3(c) remove the words ``form OP-1'' and add in 
their place the words ``Form OP-1(W)''.
[FR Doc. 94-30335 Filed 12-8-94; 8:45 am]
BILLING CODE 7035-01-P