[Federal Register Volume 59, Number 236 (Friday, December 9, 1994)]
[Unknown Section]
[Page 0]
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]
=======================================================================
-----------------------------------------------------------------------
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.
-----------------------------------------------------------------------
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