[Federal Register Volume 61, Number 237 (Monday, December 9, 1996)]
[Proposed Rules]
[Pages 64849-64851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30218]

[[Page 64849]]



Bureau of Transportation Statistics

49 CFR Ch. XI

Negotiated Rulemaking Committee to Revise the Motor Carrier 
Financial and Operating Data Collection Program

AGENCY: Bureau of Transportation Statistics (BTS), DOT.

ACTION: Proposed establishment of negotiated rulemaking advisory 


SUMMARY: The Bureau of Transportation Statistics (BTS) proposes to 
establish a negotiated rulemaking advisory committee (the Committee) 
under the Federal Advisory Committee Act and the Negotiated Rulemaking 
Act to consider the relevant issues and attempt to reach a consensus in 
developing regulations governing the collection of financial and 
operating data from motor carriers of property. This effort also is in 
response to the President's Regulatory Reinvention Initiative, which 
specifically directed agencies to increase use of regulatory 
negotiation in rulemaking proceedings. The Committee would be composed 
of people who represent the interests that would be substantially 
affected by the rule. BTS invites interested parties to comment on the 
proposal to establish the Committee, on the proposed membership of the 
Committee, and on the proposed issues for consideration by the 
Committee. Persons are also invited to submit applications or 
nominations for membership on the Committee.

DATES: Interested parties may file comments and nominations for 
committee membership on or before January 8, 1997.

ADDRESSES: When sending comments and/or nominations, send the original 
plus three copies. Mail to Docket Clerk, Docket No. BTS-96-1979, 
Department of Transportation, 400 Seventh Street, SW., Room PL-
401,Washington, D.C. 20590. Commenters desiring notification of receipt 
of comments must include a stamped, self-addressed postcard. The Docket 
Clerk will date stamp the postcard and mail it back to the commenter.

Transportation Statistics, K-2, 400 Seventh Street, SW., Washington, 
D.C. 20590; by phone at (202) 366-8871; by e-mail at 
[email protected]; or by Fax at (202) 366-3640.



    The Secretary of Transportation has authority to establish 
regulations for the collection of certain data from motor carriers of 
property and others. Section 103 of the ICC Termination Act of 1995 
(the Act), Pub. L. 104-88, 109 Stat. 803 (1995) (to be codified at 49 
U.S.C. 14123). This authority is delegated to the Director of the 
Bureau of Transportation Statistics.
    For many years, the Interstate Commerce Commission (ICC) 
administered a motor carrier financial data collection program. 49 
U.S.C. 11145 (amended by the Act). Under this statute and its 
implementing regulations, 49 CFR part 1249, the ICC collected data on 
an annual and quarterly basis from freight and passenger motor 
carriers. The program collected data on many aspects of the motor 
carrier industry including financial, employee, and operating 
    Before 1980, the ICC required detailed financial reports from all 
classes of motor carriers with annual revenues over $500,000. The 
reporting requirements reflected the ICC's close economic regulation of 
the industry. In the years following trucking deregulation, the ICC 
substantially reduced reporting requirements. It created classes of 
reporting carriers based on revenues, raised the revenue levels for the 
various carrier classes, and reduced the information required for each 
    The quality of the data in the latter years of ICC administration 
declined considerably, due to constraints on resources needed for 
support and enforcement. Regulatory use of the data by the Federal 
government has dwindled and is today, as far as BTS knows, almost 
nonexistent. BTS is uncertain as to the extent of use for statistical 
purposes or the value of the data as collected. Aggregate data have 
been and continue to be published. Unless otherwise prohibited by law, 
individual carrier reports are made available to the public.
    For motor carriers of property, the current regulations create 
three classes of carriers based on revenue. Class I carriers are those 
with annual operating revenues of $10 million or greater and they file 
annual report form M1 and quarterly report form QFR. Class II carriers 
have annual operating revenues of between $3 and 10 million and file 
annual report form M2. Class III carriers have annual operating 
revenues of less than $3 million and are not required to file any 
financial reports. The term ``motor carriers'' used here includes only 
common and contract carriers--those providing motor vehicle 
transportation for compensation. Private motor carriers--a retail 
store's own fleet, for example--are excluded from the program.
    The ICC Termination Act of 1995, which went into effect January 1, 
1996, abolished the ICC and transferred some former ICC functions to 
the Department of Transportation (DOT). The Secretary of Transportation 
delegated responsibility and authority for the motor carrier financial 
data reporting program to DOT's Bureau of Transportation Statistics 
(BTS). Since Congress preserved the data collection provisions, albeit 
with some differences, the regulations remain in effect until 
``modified, terminated, superseded, set aside, or revoked'' by BTS. 
That is, the program remains current and DOT will continue collecting 
motor carrier financial data as was done when the ICC administered the 
    Meanwhile, DOT is to redefine the reporting requirements within the 
bounds of the Act. Revision is necessary because the Act changed the 
laws governing data collection slightly. Similar to the old 
legislation, the Act requires DOT to collect certain data from motor 
carriers of property and motor carriers of passengers.

    The Secretary shall require Class I and Class II motor carriers 
to file with the Secretary annual financial and safety reports, the 
form and substance of which shall be prescribed by the Secretary; 
except that, at a minimum, such reports shall include balance sheets 
and income statements.

    However, the earlier statute did not explicitly charge ICC to 
collect information relevant to safety. The Act also allows DOT to 
collect certain other data as needed.

    The Secretary may require motor carriers, freight forwarders, 
brokers, lessors, and associations, or classes of them as the 
Secretary may prescribe, to file quarterly, periodic, or special 
reports with the Secretary and to respond to surveys concerning 
their operations.

    In designing the reporting program, DOT must consider, pursuant to 
the Act: (1) Safety needs; (2) the need to preserve confidential 
business information and trade secrets and prevent competitive harm; 
(3) private sector, academic, and public use of information in the 
reports; and (4) the public interest. Congress has also explicitly 
called on DOT to ``streamline and simplify'' reporting requirements to 
the maximum extent practicable. BTS notes that the data needs of the 
public and private sectors have changed, and the technology to

[[Page 64850]]

collect, process, and disseminate data is much improved. Further, as 
part of the Regulatory Reinvention Initiative, the President asked that 
agencies reduce by half the frequency of reports that the public is 
required to provide.
    Unlike the previous legislation, the Act authorizes two types of 
exemptions from the reporting requirements. Each exemption is based on 
certain criteria and is granted for a three-year period. The first is 
an exemption from filing report forms. The requestor ``must 
demonstrate, at a minimum, that an exemption is required to avoid 
competitive harm and preserve confidential business information that is 
not otherwise publicly available.'' The second is an exemption from 
public release of data reported by the carrier. Similar to the other 
exemption, the requestor must demonstrate that ``the exemption 
requested is necessary to avoid competitive harm and to avoid the 
disclosure of information that qualifies as a trade secret or 
privileged or confidential information under section 552(b)(4) of title 
5.'' Further, the requestor must not be a publicly held corporation and 
must not be subject to financial reporting requirements of the 
Securities and Exchange Commission.
    As it redesigns the data collection program under the Act, BTS will 
seek to determine the government and private needs for motor carrier 
financial and operating data and how to balance these needs against the 
burden on respondents. This rulemaking will form the basis for 
addressing these questions, as well as others that may be identified as 
this process continues. When complete, the Bureau hopes to resolve: (1) 
Which motor carriers should report; (2) what data items should be 
collected; (3) how often data should be collected; and (4) whether BTS 
should release carrier-specific data in addition to aggregate data and, 
if so, what entities should have access.
    Pursuant to the Negotiated Rulemaking Act, 5 U.S.C. 561-570, the 
agency is considering forming a negotiated rulemaking committee. The 
agency believes that this approach is most likely to lead to a program 
that provides the government with the data it needs for industry 
oversight while minimizing the impact on respondents. Unlike 
traditional, informal notice and comment rulemaking, this process would 
allow for the open exchange of ideas and information among and between 
parties with an interest in the outcome of this issue. The agency 
believes that in adopting this approach, the process would lead to 
creative, innovative approaches to resolving issues that might not 
emerge through the individual efforts of commenters to a docket. The 
process would still result in the promulgation of a notice of proposed 
rulemaking. This would provide an opportunity for comment by other 
interested parties and the general public, but the initial proposal 
published for comment would reflect the exchange of ideas and differing 
proposals that occur in negotiations. One result of the negotiations 
would be better informed providers and users of motor carrier data with 
a fuller understanding of the costs and benefits of the various methods 
for collecting and utilizing motor carrier financial and operating 

Negotiated Rulemaking Process--Conveners

    As provided for in 5 U.S.C. 563(b), a convener assists the agency 
in identifying the persons or interests that would be significantly 
affected by the proposed rule. The convener conducts discussions with 
representatives of such interests to identify the issues of concern to 
them and to ascertain the feasibility of establishing a negotiated 
rulemaking committee.
    BTS retained the services of an attorney working for the United 
States Coast Guard to act as a convener and provide advice on the 
feasibility of using a negotiated rulemaking process for this rule. The 
convener met with BTS officials to review background information on the 
issues, including the history of the program, potential interested 
parties, and agency objectives.
    The convener attempted to develop the range of interests that would 
be affected by the rule and identify individuals who would be able to 
represent or articulate those interests. The convener then sought to 
interview those individuals to determine their views on the issues 
involved and whether they would be interested in participating in the 
negotiated rulemaking. Each party was also asked if there were other 
individuals or groups which should be contacted and these additional 
parties were interviewed. Based upon these interviews, the convener 
submitted a convening report in October 1996 to BTS recommending that 
the agency proceed with the negotiated rulemaking process.

Determination of Need for a Negotiated Rulemaking Committee

    The purpose of a negotiated rulemaking committee is to develop 
consensus on a proposed rule. ``Consensus'' means the unanimous 
concurrence among the interests represented on the negotiated 
rulemaking committee unless the committee explicitly adopts some other 
definition. This requirement also means that the agency itself 
participates in the negotiations in a manner similar to that of any 
other party.
    Before establishing such a negotiated rulemaking committee, the 
Negotiated Rulemaking Act (5 U.S.C. 563(a)) directs the head of an 
agency to consider whether:
    1. There is a need for the rule;
    2. There are a limited number of identifiable interests that will 
be significantly affected by the rule;
    3. There is a reasonable likelihood that a committee can be 
convened with a balanced representation of persons who can adequately 
represent those interests and are willing to negotiate in good faith to 
reach a consensus on a proposed rule;
    4. There is a reasonable likelihood that a committee will reach 
consensus on the proposed rule within a fixed period of time;
    5. The negotiated rulemaking will not unreasonably delay the 
issuance of the notice of proposed rulemaking and the final rule;
    6. The agency has adequate resources and is willing to commit such 
resources, including technical assistance, to the committee; and
    7. The agency, to the maximum extent possible, consistent with its 
statutory authority and legal obligations, will use the consensus of 
the committee as the basis for the rule proposed by the agency for 
notice and comment.
    BTS believes that all of the requisite negotiated rulemaking 
factors are satisfied with regard to redesigning the motor carrier data 
collection program and that the negotiating process could provide 
significant advantages over conventional informal rulemaking. This 
determination is based on the convener's report. There is broad 
consensus among the parties contacted by the convener that the data 
collection program in place today does not serve current users' needs, 
warranting changes in the types of data collected as well as the 
universe of reporting carriers. The potentially affected interests are 
limited in number; there are clearly fewer than 25 distinct interests 
that would be affected by the rule. A balanced committee representing 
the various interests at stake in this matter can be empaneled. The 
parties contacted by the convener have expressed their interests in 
discussing the issues and believe that there is a strong likelihood of 
reaching consensus on the issues within a reasonable period of time. 
BTS believes that these negotiations would not delay, but

[[Page 64851]]

expedite the rulemaking process since the negotiations would enable the 
agency to benefit from the committee members' practical, first-hand 
insights and knowledge into what data are needed for what purposes, and 
how these data can be most efficiently obtained. The information BTS 
hopes to gain would be valuable to rulemaking even if full consensus is 
not reached. Further, BTS has a much greater chance of obtaining this 
information and resolving the controversies through negotiated 
rulemaking than through informal notice and comment rulemaking. The 
agency is committed to facilitating the negotiated rulemaking process 
and will devote the necessary resources, including technical 
assistance, to the Committee. The member or members of the Committee 
representing the agency shall participate in the deliberations and 
activities of the Committee with the same rights and responsibilities 
as other members of the Committee, and shall be authorized to fully 
represent the agency in discussions and negotiations of the Committee. 
The agency, to the maximum extent possible, consistent with its 
statutory authority and legal obligations, will use the consensus of 
the Committee as the basis for the rule proposed by the agency for 
notice and comment.
    Therefore, based on this analysis of the seven factors mentioned 
above, the agency has concluded that the use of the negotiated 
rulemaking procedure in this case is in the public interest.

Potential Topics for the Negotiated Rulemaking Process

    Based on the interviews conducted with potential committee members 
and the report provided by the convener, BTS proposes consideration of 
the following issues in the negotiated rulemaking process.
    1. What financial and operating information about the motor carrier 
industry and individual motor carriers is needed by the Federal 
government, the private sector, academia, and the general public for 
statistical purposes?
    2. What financial and operating information about the motor carrier 
industry and individual motor carriers is needed by the Federal 
government for the purpose of promoting safety?
    3. What other sources exist to provide needed data?
    4. What approach to data collection provides the optimum balance 
between minimizing the reporting burden to motor carriers on one hand 
and meeting governmental and other data needs on the other?
    4. What approach to data use provides the optimum balance between 
preventing competitive harm and preserving confidential business 
information and trade secrets on one hand and meeting governmental and 
other data needs on the other?
    5. What categories of reporting and non-reporting motor carriers 
should be created? Should all carriers within a category report or just 
a sample? What data items should each category report? How often should 
the data items be reported?
    6. In addition to aggregate data, what carrier-specific data should 
be made available? What entities, inside and outside the Federal 
government, should have access to carrier-specific data?

Potential Participants Who Were Interviewed by the Convener

    The following entities were identified as interested parties that 
should be included in the negotiated rulemaking process either directly 
as members of the Committee or as a part of a broader caucus of similar 
or related interests:

Government Agencies
    U.S. Department of Transportation
    American Trucking Associations
    International Brotherhood of Teamsters
    American Insurance Association
    Central Analysis Bureau, Inc.
Industry Analysts
    Transportation Technical Services
    University of Michigan Program on the Trucking Service Industry

Proposed Agenda and Schedule

    BTS anticipates that the negotiated rulemaking committee will hold 
six two-day meetings, approximately once a month. The first committee 
meeting will focus on such matters as: determining if there are 
additional interests that should be represented on the Committee; 
identifying issues to be considered; and setting ground rules, a 
schedule, and an agenda for future Committee meetings.

Administrative Support

    BTS will select and fund a facilitator, who is neutral, has the 
relevant skills, and is acceptable to all participants. BTS will also 
supply logistical, technical, and administrative support to the 
Committee. The meetings will be held in Washington, D.C., where a 
majority of the prospective Committee members are likely to be located. 
In general, Committee members will be responsible for their own 
expenses, but BTS will consider requests for reimbursement in 
accordance with 5 U.S.C. 568(c).

Applications for Membership on Committee

    BTS is soliciting comments on this proposal to establish a 
negotiated rulemaking advisory committee, on the proposed membership of 
the Committee, and on the proposed issues for consideration by the 
Committee. Persons may apply or nominate another person for membership 
on the Committee in accordance with the following procedures:
    Persons who will be significantly affected by the proposed rule and 
who believe that their interests will not be adequately represented by 
any person on the previously discussed list of potential participants 
may apply for, or nominate another person for, membership on the 
negotiated rulemaking committee. Each application or nomination shall 
    1. the name of the applicant or nominee and a description of the 
interests such person shall represent;
    2. evidence that the applicant or nominee is authorized to 
represent parties related to the interests the person proposes to 
    3. a written commitment that the applicant or nominee shall 
actively participate in good faith in the development of the rule under 
consideration; and
    4. the reasons that the persons specified in this notice do not 
adequately represent the interests of the person submitting the 
application or nomination.
    As a general rule, the Federal Advisory Committee Act provides that 
no advisory committee may meet or take any action until an approved 
charter has been filed with the appropriate House and Senate committees 
with jurisdiction over the agency using the committee. Only upon the 
Secretary of Transportation's approval of the charter and the list of 
organizations or interests to be represented on the Committee and the 
filing of the charter will BTS form the Committee and begin 
    After review of the comments received in response to this notice, 
BTS will issue a final notice announcing formation of the Committee, 
its members, the issues for consideration, and the date of the first 
Committee meeting.

    Authority: 5 U.S.C. 561-570.

    Issued in Washington, DC, on November 20, 1996.
Robert A. Knisely,
Deputy Director, Bureau of Transportation Statistics.
[FR Doc. 96-30218 Filed 12-6-96; 8:45 am]