[Federal Register Volume 63, Number 61 (Tuesday, March 31, 1998)]
[Proposed Rules]
[Pages 15362-15375]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-8367]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 397

[FHWA Docket No. MC-96-10; FHWA-97-2334]


Recommendations on Uniform Forms and Procedures for the 
Transportation of Hazardous Materials

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Supplemental notice of report availability; request for 
comments.

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SUMMARY: The FHWA is requesting public comment on the final report and 
recommendations of the Alliance for Uniform HazMat Transportation 
Procedures (the Alliance) concerning the implementation of a portion of 
the former Hazardous Materials Transportation Uniform Safety Act of 
1990 (HMTUSA). The statute requires the Secretary of Transportation 
(the Secretary) to establish a working group of State and local 
government officials to establish uniform forms and procedures for the 
registration of persons that transport hazardous materials by motor 
vehicle. The working group is required to make recommendations to the 
Secretary on whether to limit the filing of State registration and 
permit forms and the collection of filing fees to the State in which 
the person resides or has its principal place of business. The Alliance 
is the working group created to fulfill the requirements of the 
statute, and accordingly, published its final report with 
recommendations on March 15, 1996.
    On July 9, 1996, the FHWA published a notice indicating that the 
Alliance's report was available and requesting public comments on the 
report (61 FR 36016). After reviewing the comments received in response 
to the notice of availability, the FHWA has determined that it should 
seek additional public comment before the agency makes a decision on 
whether to implement the recommendations of the Alliance.

DATES: Written comments must be received on or before June 29, 1998.

ADDRESSES: Submit written, signed comments to Docket No. FHWA-97-2334, 
the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, 
SW., Washington, DC 20590-0001. All comments received will be available 
for examination at the above address from 10 a.m. to 5 p.m., e.t., 
Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor 
Carrier Research and Standards, (202) 366-4009; Mr. James D. McCauley, 
Office of Motor Carrier Safety and Technology, (202) 366-9579; or Mr. 
Raymond W. Cuprill, Office of 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 Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Federal Register 
Electronic Bulletin Board Service at (202) 512-1661. Internet users may 
reach the Federal Register's home page at: http://www.nara.gov/nara/
fedreg and the Government Printing Office's database at: http://
www.access.gpo.gov/su__docs.

Availability of The Alliance's Report

Electronic Access

    The Alliance report has been posted on the Internet. The entire 
report may be viewed on the Internet, depending on the software being 
used, and/or downloaded. The report is in WordPerfect 6.1 format while 
the forms contained in Appendix F of the report are in Graphics 
Interchange Format (GIF)--a standard format for digitized images. Users 
will need a graphics viewer to see the GIF file.
    There are several ways to access the report on the Internet. The 
most direct method is as follows: http://www.fhwa.dot.gov/omc/
alliance.html.
    Alternatively, the report may be accessed through the FHWA's Office 
of Motor Carriers (OMC) home page located at http://www.fhwa.dot.gov/
omc/omchome.html. This site contains general information on the OMC and 
its programs as well as links to online Federal Motor Carrier Safety 
Regulations and regulatory guidance, and Federal Hazardous Materials 
Regulations. When accessing the Alliance report from the OMC home page 
select the following hyperlinks:
    1. Special Program Areas.
    2. Final Report: Uniform Program Pilot Project.
    Whichever approach is used, users may scroll through the table of 
contents and access the desired section of the report by clicking on 
the appropriate heading.

Ordering Copies of the Alliance Report

    Copies of the report (``Final Report: Uniform Program Pilot 
Project,'' March 15, 1996) may be ordered from the National Governors' 
Association (NGA) Publications Center at (301) 498-3738. The NGA 
Publications Center will charge a shipping and handling fee for all 
orders.

Background

    Section 5119 of title 49, United States Code, requires the 
Secretary to establish a working group of State and local government 
officials to develop recommendations on uniform forms and procedures 
that the States can use to register and permit persons that transport, 
or cause the transportation of, hazardous materials by motor vehicle. 
The working group is also required to make recommendations as to 
whether the filing of registration and permit forms, and the collection 
of related fees, should be limited to the State in which a person 
resides or has its principal place of business. In developing its 
recommendations, the group is required to consult with persons who are 
subject to these registration and permit requirements. The 
recommendations of the working group are to be included in a final 
report to the Secretary.1 Finally, section 5119 requires the 
issuance of regulations implementing those

[[Page 15363]]

recommendations with which the Secretary agrees.
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    \1\ The report is to be also submitted to the Committee on 
Commerce, Science, and Transportation of the U.S. Senate, and the 
Committee on Public Works and Transportation of the U.S. House of 
Representatives.
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    Section 5119 was originally enacted as section 22 of the Hazardous 
Materials Transportation Uniform Safety Act of 1990 (Pub. L. 101-615, 
104 Stat. 3244; November 16, 1990). The HMTUSA amended the Hazardous 
Materials Transportation Act of 1974 (HMTA), Pub. L. 93-633, 88 Stat. 
2156, which granted regulatory and enforcement authority to the 
Secretary to provide adequate protection against the risks to life and 
property inherent in the transportation of hazardous materials in 
commerce. The HMTA was designed to replace a patchwork of State and 
Federal laws and regulations concerning hazardous materials 
transportation with a framework of uniform, national regulations. The 
HMTA and HMTUSA were repealed by Public Law 103-272 (108 Stat. 745, 
1379; July 5, 1994) with the statutory provisions applicable to the 
transportation of hazardous materials recodified at 49 U.S.C. 5101 et 
seq.

Implementation of Section 5119

Creation of the Alliance for Uniform HazMat Transportation Procedures

    In 1991, the NGA and the National Conference of State Legislatures 
(NCSL) were awarded a contract to coordinate the staffing and 
operations of the working group. The NGA and NCSL presented 
recommendations to the Secretary for the establishment of a panel to 
carry out the tasks of the working group. The panel was approved by the 
Secretary and held its first meeting in January 1992, at which time it 
selected the title ``the Alliance for Uniform HazMat Transportation 
Procedures'' or ``the Alliance.''
    The Alliance authorized the formation of four subgroups to address 
specific areas of State hazardous materials transportation regulation. 
Industry representatives were invited to participate in the subgroups. 
The subgroups were:
    1. Shipper and Carrier Registration Subgroup;
    2. Shipper and Carrier Permitting and Licensing Subgroup;
    3. Operational Issues Subgroup; and,
    4. Audit and Enforcement Subgroup.
    Each subgroup was asked to examine current State practices, 
identify the extent to which State practices are uniform, identify 
barriers to uniformity, and make recommendations for criteria on which 
a uniform State program would be based.

Pilot Study

    In May of 1992, the Alliance proceeded with the design and 
implementation of a two-year pilot project. The project was based upon 
the following assumptions/recommendations:
    1. Base-state system for registration and collection of fees;
    2. Reciprocity between states that require permits;
    3. Additional information for hazardous waste transporters;
    4. Individual state enforcement authority;
    5. Participation by localities; and
    6. Establishment of a governing board to manage the pilot project.
    The FHWA funded a two-year demonstration program for four States. 
During the first year, each State would develop the internal 
administrative procedures and organization to conduct a test of the 
Alliance's recommended program. During the second year, the States 
would implement the program for motor carriers involved in the 
transportation of hazardous materials.
    In November of 1992, the Alliance contacted State hazardous 
materials transportation program administrators to solicit 
participation in the pilot study. The States of Minnesota, Nevada, 
Ohio, and West Virginia were chosen based upon the following criteria 
established by the Alliance:
    1. The Governor and State legislature were committed to taking the 
necessary legislative and administrative actions to conduct the State's 
hazardous materials transportation programs under the principles and 
operating procedures of the Alliance's recommendations;
    2. The regulated community within the State was committed to 
supporting participation in the program;
    3. The State had experience in the registration and permitting of 
hazardous materials, and/or in the transportation of radioactive 
materials;
    4. The group of States chosen reflected ``geographic diversity;''
    5. At least one pilot State had a ``major locality'' with a 
hazardous materials transportation registration or permitting program.
    Between July 1, 1993, and June 30, 1994, the States completed the 
legislative and administrative work necessary to participate in the 
pilot study. On July 1, 1994, the pilot States began registering and 
permitting motor carriers in accordance with the Alliance's 
recommendations. Each participating State was given the opportunity to 
select one of the following three options for implementing the 
Alliance's Uniform Program:
    1. The State could apply the requirements of the Uniform Program to 
all motor carriers (interstate and intrastate); or
    2. The State could apply the requirements only to domiciled, 
interstate motor carriers that operate in two or more of the pilot 
States; or,
    3. The State could select an even smaller sample of interstate 
motor carriers. Minnesota, Ohio, and West Virginia used option one 
while Nevada selected option two for the first round of registration 
and permitting with the intent of expanding the program to all motor 
carriers during the second program year.

The Alliance's Conclusions

    On March 15, 1996, the Alliance submitted its final report and 
recommendations to the FHWA. The Alliance concluded that the pilot 
study met the uniformity mandate of 49 U.S.C. 5119. The report states 
that all of the pilot States support the program and believe that other 
States should join the program to increase the benefits provided by 
this uniform program and to spread the administrative load presented by 
multi-state carriers. The report also states that industry participants 
support making the program uniform in all States, although the industry 
believes that a shorter application form and a simplified formula for 
calculating fees should be used. The Alliance's report is available for 
review in the docket and may be viewed and downloaded from the 
Internet.

Discussion of Comments

    The FHWA received 20 comments in response to the July 9, 1996, 
notice. The commenters were: The Advocates for Highway and Auto Safety 
(the Advocates); the Alliance for Uniform HazMat Transportation 
Procedures (the Alliance); the Association of Waste Hazardous Materials 
Transporters (the AWHMT); Blair America, Inc.; the Coalition for the 
Advancement of Uniform Hazardous Materials Registration and Permit 
Forms and Procedures (the Coalition); the Commercial Vehicle Safety 
Alliance (the CVSA); Du Pont-Sentinel Transportation Company (Du Pont-
Sentinel); Idaho Department of Law Enforcement, State Police Division 
(the Idaho State Police); Institute of Makers of Explosives (the IME); 
Iowa Department of Transportation (the Iowa DOT); Michigan Department 
of Environmental Quality (the Michigan DEQ); Michigan Department of 
State Police (the Michigan State Police); National Customs Brokers and 
Forwarders Association of America, Inc. (the NCBFAA); National Fire 
Protection

[[Page 15364]]

Association (the NFPA); National Tank Truck Carriers, Inc., (the NTTC); 
New Jersey Department of Law and Public Safety, Office of the Attorney 
General (the New Jersey Attorney General); Northeast Waste Management 
Officials' Association (the NEWMOA); Ohio Public Utilities Commission 
(the Ohio PUC); Roadway Express, Inc. (Roadway); and, the Wisconsin 
Department of Transportation (the Wisconsin DOT).

Comments in Support of Implementing the Alliance's Recommendations

    The FHWA received 12 comments in support of the Alliance's 
recommendations. The commenters were: The Alliance, the AWHMT, the 
Coalition, the CVSA, Du Pont-Sentinel, the Michigan State Police, the 
NCBFAA, the NFPA, the NTTC, the Ohio PUC, Roadway, and the Wisconsin 
DOT.
    The Alliance discussed its work to develop the Uniform Program and 
objected to the manner in which the FHWA presented the information 
contained in the July 9, 1996, notice. The Alliance stated:

    Overall, we are extremely disappointed that the notice 
misrepresents both the purpose of 49 USC 5119 (formerly referred to 
as Section 22 of the Hazardous Materials Transportation Uniform 
Safety Act of 1990) and the process by which the Alliance arrived at 
its recommendations. We are also concerned that the Federal Highway 
Administration has exceeded its rulemaking authority under 49 USC 
5119 under which ``the Secretary shall issue regulations 
implementing those recommendations contained in the report 
transmitted to the Secretary (c) with which the Secretary agrees,'' 
to question the validity of a state hazardous materials program. The 
Act does not preempt state hazardous materials programs. It relates 
only to uniformity.
    Furthermore, by omitting the words ``to the State in which the 
person resides or has its principle place of business,'' from the 
paraphrasing of Section (a)(2), it suggests that the Secretary can 
somehow limit State fees. The Act specifically states that the 
Secretary CANNOT limit fees as long as such fees are used to enhance 
the safe transportation of hazardous materials by motor carriers. 
The language used by the FHWA in the opening summary suggests that 
the agency believes it has the authority to determine the value of a 
state hazardous materials registration program. We strongly object 
to this representation of 49 USC 5119.
    When the Alliance working group was created in January, 1991, 
thirty-nine states conducted some form of registration and/or 
permitting program for motor carrier transportation of hazardous 
materials. At its initial meeting, the Alliance stated that its task 
was not to reinvent the state programs, but to reconcile the 
differences among these existing programs. Furthermore, the act 
required the working group to examine the feasibility of a base 
state system.
    The recommendations contained in the final report submitted by 
the Alliance accomplish both of these objectives. The findings and 
recommendations represent two years of hearings and deliberations as 
well as two years of field testing. Over this four year period the 
Alliance working group and the Governing Board conducted 24 open 
meetings in which they heard and considered both state and industry 
concerns. We recognize that no state or industry association got 
everything that it wanted out of the Alliance deliberations. That 
was to be expected. To their credit, many states and many industry 
representatives supported compromises on very controversial issues 
that moved the process forward. The Alliance has heard and 
deliberated on every suggestion brought to its attention. Although 
the working group and Governing Board rejected some suggestions, it 
does not mean that they did not listen to them.

    The Coalition (a group consisting of the American Trucking 
Associations, the Association of Waste Hazardous Materials 
Transporters, National Tank Truck Carriers, National Private Truck 
Council, Hazardous Materials Advisory Council, Ohio Trucking 
Association, Minnesota Trucking Association, Nevada Motor Transport 
Association, and West Virginia Motor Truck Association) indicated 
transportation of hazardous materials is ``highly'' regulated due to 
the dangers associated with these commodities. The Coalition also 
indicated that the overall safety record for transportation of 
hazardous materials is ``excellent'' and incidents are kept to a 
minimum by strict regulatory requirements enforced by Federal and State 
personnel. The Coalition stated:

    [M]any states and localities believe that hazardous materials 
transportation must be even more tightly controlled and have 
implemented registration and permitting programs within their 
jurisdictions. In recent years, approximately 49 separate programs 
with 49 different application requirements have arisen.
    The Coalition is concerned that these state and local programs 
will continue to multiply at an escalating pace. With approximately 
33,000 jurisdictions in the United States, it is possible that there 
could be literally thousands of separate permitting and registration 
programs in the future with attendant fees. This is especially true 
when one considers the current misperception that transporters of 
hazardous materials are prone to accidental releases.

    The Coalition also indicated it believes Congress, through 49 
U.S.C. 5119, has charged the Secretary with the responsibility to halt 
the proliferation of non-uniform requirements. The Coalition stated:

    Congress recognized that the states have a legitimate role in 
registering and permitting motor carriers who transport hazardous 
materials. One way to strike a balance between eliminating the 
proliferation of non-uniform requirements and allowing states and 
localities an appropriate registration and permitting role is 
through the development of a federally specified and state-run 
registration and permitting program. To that end, Congress has 
charged the Secretary of Transportation with investigating that 
possibility (49 U.S.C. 5119). It was intended that such a uniform 
and reciprocal program would apply only to those states that wish to 
register or permit motor carriers. In any such program, states would 
be required to make use of the latest technologies and systems in 
order to determine motor carrier fitness for operating as a 
hazardous materials transporter. That is the essence of the 
recommendations of the Alliance as set forth in its ``Final 
Report.'' The Final Report, which describes the Uniform Program 
pilot project, was submitted to the Secretary by the Alliance 
Interim Governing Board on March 15, 1996.
    The Coalition is very familiar with the contents of the Final 
Report and supports its general conclusions and approach, even 
though we do not concur with every technical detail. The Coalition 
recommends that FHWA move forward with rulemaking on the Alliance 
recommendations immediately. The Final Report is an accurate account 
of the pilot project that tested the recommendations of the Alliance 
in the states of Minnesota, Nevada, Ohio, and West Virginia. The 
pilot proved that the system can work, if properly structured and 
administered. Indeed, a number of states are interested in becoming 
members of the Alliance, especially since the Uniform Program 
provides them a ``safe harbor'' from preemption of their 
registration and permitting laws.

    The Coalition argued that the slow pace of the FHWA's 
decisionmaking process and lack of funding has created confusion and 
frustration for the States. The Coalition stated:

    [S]tates are unwilling to abandon current programs in return for 
the existing Uniform Program because of uncertainty about FHWA's 
commitment to follow through on the congressional directive to 
implement a state-based uniform hazmat permitting and registration 
program. The uncertainty is heightened by the slow pace FHWA has set 
for this rulemaking and the lack of continuing FHWA financial 
support for those states that are continuing to carry on the Uniform 
Program. In fact, one of the states presently in the four state 
alliance is on the verge of implementing a new non-uniform program 
because of the absence of federal guidelines. Consequently, many 
states have been left in limbo because of the lack of Federal 
direction, leading them to either maintain the status quo or proceed 
on their own with non-uniform programs.
    Therefore, the Coalition strongly recommends that FHWA make the 
rulemaking process for uniform procedures for hazardous materials 
transportation a top priority. Failure to do so will only result in 
continued confusion and frustration. Industry and government 
representatives

[[Page 15365]]

worked diligently to devise the Uniform Program and to test its 
recommendations. While there are still many compromises in the final 
recommendations, the Coalition endorses the concepts of the Uniform 
Program.

    The AWHMT stated:

    Members and staff of the Association have been involved in the 
development of the Uniform Program since the issue of state 
authority for qualifying carriers of hazardous materials was debated 
in Congress prior to the enactment of the 1990 amendments to the 
Hazardous Materials Transportation Act (HMTA) which authorize this 
rulemaking. At that time, we recognized that any credible program of 
credentialing carriers would have to rely on the participation of 
states because the federal government lacks the manpower to perform 
this task. However, the duplication and redundancy of unfettered 
state administration of such programs created intolerable burdens 
for interstate carriers.
    The determination of states to remain major players in the 
registration and permitting of motor carriers transporting hazardous 
materials has not abated since the enactment of the 1990 amendments. 
In fact, the number of permitting and registration programs has 
grown. Currently, all but 11 states administer some type of 
hazardous materials registration and/or permitting program.

    The AWHMT expressed concern about what it termed ``the lack of 
federal financial support to carry the Uniform Program forward to 
national implementation.'' The AWHMT indicated that the FHWA has not 
continued financial support to the pilot States or other States that 
would like to participate in the Uniform Program. The AWHMT stated:

    Four states are carrying the burden of this program for the 
nation. It is unclear how long the pilot states are able and willing 
to support the Uniform Program before other states agree to share 
the load. Other states are, as outlined in the Coalition comment, 
waiting for DOT's final rule. Every day implementation of this rule 
is delayed past the November 17th trigger, we believe FHWA should 
financially assist its pilot program ``state partners.'' If no 
support is forthcoming, FHWA owes it to these state partners to 
finalize, as expeditiously as possible, the Uniform Program.

    The CVSA stated:

    Congress recognized the role the states play to assure the safe 
transportation of hazardous materials. States concerned about the 
quality of such carriers have been unable to effectively ensure 
compliance of non-domiciled carriers operating in their 
jurisdictions. The Uniform Program provides a mechanism to 
reciprocally recognize the reviews performed by other states on non-
domiciled carriers. The ability to prequalify hazmat carriers in a 
reciprocal fashion is necessary to facilitate the ``seamless'' flow 
of commerce across state lines that FHWA envisions through other 
initiatives it is pursuing such as CVISN (Commercial Vehicle 
Information System Network). States will also realize more efficient 
use of resources as the burden of regulating the nation's interstate 
carriers is distributed among the states.
    CVSA believes it is critical to move forward with the Uniform 
Program in an expeditious fashion. States are willing to participate 
in the Uniform Program. However, Congress empowered the Secretary to 
issue regulations implementing only those recommendations of the 
Alliance with which the Secretary agrees. Thus, the possibility that 
FHWA will not finalize the Uniform Program as recommended in full by 
the Alliance has a chilling effect on additional state 
participation.

    Three State agencies submitted comments in support of the 
Alliance's recommendations. One of the State agencies, the Ohio PUC, 
participated in the negotiations of the original Alliance working group 
and as a pilot State during the two-year pilot program. The Ohio PUC 
stated:

    The Commission has registered and permitted over three thousand 
hazardous materials carriers, including over three hundred hazardous 
waste transporters under the Uniform Program. Based upon its 
experience during the working group negotiations and as a pilot 
state, the Commission believes that the Uniform Program represents a 
consensus between the States and the regulated industry.

    The Ohio PUC recommended that the FHWA carefully examine the issue 
of continued financial support for the Alliance until implementation of 
the Uniform Program is completed. The Ohio PUC stated:

    (T)he Commission's support for reciprocity is conditioned upon 
adequate financial support from the FHWA for the national repository 
and the Alliance Interim Governing Board until the Uniform Program 
is fully implemented. In the Final Report, the Alliance provides a 
detailed summary of the costs of maintaining the infrastructure 
necessary for reciprocity. Final Report: Uniform Program Pilot 
Project, March 15, 1996, at 53-54. The experience during the pilot 
process demonstrates that there is an infrastructure necessary for 
reciprocity among the States. It is unrealistic to expect that the 
four states now in the Uniform Program can bear the costs of 
maintaining the infrastructure necessary for reciprocity without 
assistance from the FHWA until the Uniform Program is fully 
implemented.

    The Michigan State Police believe implementation of the Uniform 
Program would improve compliance with hazardous materials regulations 
and improve safety. The Michigan State Police believe the Alliance's 
program can be implemented without adversely impacting the State's need 
to place administrative controls on hazardous materials carriers.
    Two motor carriers provided comments in support of the Uniform 
Program. DuPont-Sentinel stated:

    Our organization supports the Alliance recommended Uniform 
Permitting system. We feel it is a reasonable balance between the 
effort required of carriers to generate data and the information 
needed by the states to perform an adequate background check and 
determine carrier safety history. Critics will argue that the 
information requirements of the proposed program are somewhat more 
complex than many existing state permits. While this is true to a 
certain extent, the additional requirements also mean those states 
will have more detailed information than they presently use to 
continue making sound decisions about carrier safety performance and 
permit qualifications.
    We have found the informational burdens imposed by the 
recommended uniform system are not overly intrusive to us or to our 
interstate hazardous material/waste carrier industry. When the more 
complex, but uniform, requirements are weighed against the current 
disjointed myriad of various state requirements for different 
information, our company alone will be able to save approximately 
$8,000 per year in administrative cost under the uniform program. We 
feel that other carriers handling hazardous materials and wastes in 
multiple states will see the same effect. Thus any additional 
complexity of data supplied by the carrier is more than outweighed 
by the benefit of only having to have the same set of uniform data 
for each state.

    DuPont-Sentinel also indicated that it believes reciprocity between 
State permitting and registration programs will greatly enhance each 
State's ability to assess motor carriers' compliance with the hazardous 
materials regulations. DuPont-Sentinel stated:

    Our opinion is that reciprocity would mean all the involved 
states would each be responsible for determining the safety fitness 
of a fraction of the present number of carriers, with the same level 
of state revenues to fund these assessments. Thus the states would 
have the time and funding to perform a much more intensive 
investigation of the fewer carriers which are based in their state 
for permitting purposes. By almost any logic, this should result in 
a much higher level of highway safety because the carriers which are 
qualified by the state to handle hazardous materials will be more 
thoroughly investigated than they are today. Thus only those 
carriers which can clearly demonstrate to the base state a proven 
history of safe performance and compliance with existing standards 
will be allowed to transport hazardous materials.

    Roadway stated:

    We agree that transporters of hazardous materials should be held 
to high standards and do not dispute the right of regulators to 
monitor safe transportation. However, a regulatory scheme that 
allows more than 30,000 jurisdictions to develop individual programs 
in a hit-or-miss scheme is detrimental overall to safety.

[[Page 15366]]

FHWA Response to Commenters Supporting the Implementation of the 
Alliance's Recommendations

    The FHWA understands the commenters concerns about the need to 
establish uniformity and reciprocity between the States' permitting and 
registration programs. However, the agency does not believe that the 
information provided to date from the States and hazardous materials, 
substances, and wastes transporters is sufficient to support issuing a 
notice of proposed rulemaking (NPRM) to adopt the Alliance's 
recommendations. Prior to issuing an NPRM the agency must assess the 
costs and benefits (safety and economic) of implementing the Alliance's 
recommendations. A major factor in assessing the costs is the extent to 
which the States would be required to modify their existing programs 
and the development of the information-system infrastructure needed for 
the States to share information on motor carriers' safety performance. 
Because of the lack of comments from the State agencies administering 
permitting and registration programs, the FHWA cannot determine the 
costs of implementing the Alliance's program.
    With regard to benefits, neither the Alliance's final report nor 
the comments received in response to the July 9, 1996, notice provided 
information to enable the FHWA to estimate the benefits of implementing 
the Alliance's Uniform Program. Although several commenters believe the 
overall costs to motor carriers will be reduced, the agency does not 
believe it is possible to make such an assertion without determining 
all of the costs associated with implementing the Uniform Program and 
identifying the sources of revenues or funding to meet those costs. In 
the absence of Federal funding, the most likely source would be the 
registration and permit fees paid by motor carriers. The State agencies 
did not indicate whether their fees would be adjusted to cover the 
costs of implementing the Uniform Program. Therefore, it is 
inappropriate to assume that the costs for the industry would decrease.
    Although the Alliance indicated in its comments that 24 ``open 
meetings'' were held and the concerns of the States and industry were 
considered, the comments received to date suggest the Alliance's 
proposed uniform program does not effectively reconcile the differences 
among existing State programs. The FHWA notes that only three State 
agencies submitted comments in support of implementing all of the 
Alliance's recommendations. Two States and the NEWMOA supported the 
adoption of the Alliance's uniform program for hazardous materials and 
substances transporters, but opposed applying the program to the 
permitting of hazardous waste transporters. Two other States opposed 
implementing any of the elements of the Alliance's Uniform Program. The 
comments from the States opposed to some, or all of, the Alliance's 
recommendations are an indication that certain aspects of the Uniform 
Program are not, as currently presented, acceptable to those States for 
incorporation into their permitting and registration programs. A 
detailed discussion of the comments from States opposed to some, or all 
of, the Alliance's recommendations is provided in the next section of 
this notice. This is particularly important because of the preemptive 
effect that the Alliance's recommendations, if implemented by the FHWA, 
would have on the jurisdictions that have not adopted the Uniform 
Program.
    Section 5119(c) of title 49 of the United States Code requires that 
a regulation prescribed under this subsection must take effect one year 
after it is prescribed. The Secretary may extend the one-year period 
for an additional year for good cause. After a regulation is effective, 
a State may establish, maintain, or enforce a requirement related to 
the same subject matter only if the requirement is the same as the 
regulation. Therefore, if the FHWA implemented the Alliance's 
recommendations, each State with a permitting and/or registration 
program that differs from the Alliance's Uniform Program would be 
required to either modify its program to conform completely to the 
Alliance's program, or cease its permitting and/or registration 
program. The FHWA believes there are significant costs associated with 
having each of the States modify its respective program and it would be 
inappropriate to initiate a rulemaking action at this time without 
determining the total economic burden on the States. Section 5119 does 
not provide Federal funding for the States to make the transition from 
their current registration and permitting programs to the Uniform 
Program, and it is not evident to the FHWA that the States are prepared 
to absorb all the costs associated with implementing the Uniform 
Program.
    The FHWA believes that prior to initiating a rulemaking to 
implement the Alliance's recommendations, the agency must be assured 
that the States are prepared to fund all costs associated with entering 
into the Uniform Program, and have the means to sustain the Uniform 
Program without support from the FHWA. Federal funding was provided to 
the four pilot States to participate in the study, but currently no 
funding has been designated to support the continuation of the Uniform 
Program in the pilot States or the enrollment of the remaining 46 
States and the District of Columbia.
    In addition to the costs for each of the States to adopt the 
Uniform Program, there are costs associated with establishing an 
information-system infrastructure for nationwide implementation of the 
Uniform Program and funding the operations of the Governing Board. The 
Alliance estimates the annual administrative costs (e.g., the Governing 
Board, maintaining the repository, etc.) of a fully-implemented Uniform 
Program covering all of the States and the District of Columbia would 
be approximately $400,000. This amount does not include the annual 
costs for each of the States to participate in the Uniform Program. 
Since Congress did not authorize Federal funds for the implementation 
of the Uniform Program, the administrative costs for the Uniform 
Program would have to be financed through fees paid by the motor 
carriers subject to the permitting and registration requirements. 
Therefore, the registration and permitting fees charged by the States 
may need to be increased in order to cover both the costs for the 
States to operate under the new base-State procedures, and the costs 
for administering a nationwide network.
    The FHWA notes several commenters indicated there is a need for 
continued Federal funding for the pilot States and the Interim 
Governing Board. The expectation that the FHWA would continue funding 
for the pilot States proves that the Uniform Program, as tested by the 
Alliance, is not self-sufficient. Although commenters argue the pilot 
States are being forced to absorb the costs for maintaining the Uniform 
Program until it is fully implemented, the FHWA does not believe 
participation in the Pilot Project should have resulted in an undue 
financial burden on the participating States. With the exception of 
West Virginia, each of the participating States had a registration and/
or permitting program in effect prior to volunteering to join the Pilot 
Program. The FHWA did not provide funding for these non-reciprocal 
programs. Federal funding was provided to assist in making the 
transition from the old registration and permitting system to the 
Uniform Program, and in the case of West Virginia, to establish a 
registration and permitting system under the Pilot Program. Therefore, 
the pilot States

[[Page 15367]]

were responsible for charging the necessary registration and permitting 
fees to cover the costs associated with their programs, and their 
respective shares of the administrative costs associated with the four-
State information-system infrastructure and the Interim Governing 
Board.
    The FHWA believes the administrative costs for the infrastructure 
and the Interim Governing Board should be proportional to the number of 
States and motor carriers covered by the Uniform Program. The Uniform 
Program only has four States participating at the present time and the 
costs for administering the current program should not pose a problem 
for the participating States. The FHWA disagrees with the commenters' 
inference that there is fixed cost for the nationwide information-
system infrastructure and Governing Board for which the pilot States 
must bear the full burden until other States adopt the Uniform Program. 
If more States join the Uniform Program, it is reasonable to expect 
that each State will bear the financial burden for its involvement and 
its share of the infrastructure. The commenters have not provided 
details on why the costs for the pilot States' current activities 
exceed the financial resources available from the fees charged to the 
hazardous materials, wastes, and substances transporters.
    The FHWA must emphasize the fees charged by the pilot States were 
not limited by the FHWA. Section 5119 does not give the agency 
authority to limit the registration and permitting fees collected by 
States from motor carriers. However, 49 U.S.C. 5125(g) requires that if 
a State, political subdivision of a State, or Indian tribe imposes a 
fee related to hazardous material transportation, the fee must be 
``fair'' and used for a purpose related to hazardous material 
transportation, including enforcement and planning, developing, and 
maintaining a capability for emergency response. Each State has the 
responsibility of determining the fees it believes are necessary to 
support its hazardous materials safety programs. The States also have 
the responsibility for taking into consideration the percentage of 
those fees that must be distributed to other States in the Uniform 
Program. Presumably, the State that has the burden of processing a 
motor carrier's application and performing the investigation of the 
carrier would take the greatest share of the fees paid by the carrier. 
The percentage of the fees distributed to other States would be based 
upon an appropriate assessment of those States' roles in ensuring the 
safe operation of the carrier. For whatever reason, the fee collection 
and distribution system used in the Pilot Project did not achieve self-
sufficiency.
    The FHWA agrees with the Coalition's statement that there is a need 
to halt what it terms ``the proliferation of non-uniform 
requirements.'' However, the agency does not believe the States' 
uncertainty about the outcome of the FHWA's review of the Alliance's 
recommendations is an obstacle to achieving uniformity or reciprocity. 
The States have independently developed permitting and registration 
programs with no apparent movement toward the use of uniform forms and 
procedures. The States have also been reluctant to implement 
reciprocity provisions in their permitting and registration programs. 
The Congress recognized the States' reluctance to establish uniformity 
and reciprocity and charged the Secretary with the responsibility to 
establish a working group to study the issue and, upon completion of 
the working group's final report, implement the recommendations with 
which the Secretary agrees.
    The FHWA reviewed the final report and recommendations of the 
Alliance and, after considering the complexity of the issues covered in 
the report and the potential economic impact on the States, issued a 
notice requesting public comments on the report. The agency concluded 
that it would have been inappropriate to assume the Uniform Program was 
acceptable to most of the States, and that the States were prepared to 
absorb all the costs of implementing the Uniform Program.
    In response to comments about one of the four pilot States 
discontinuing its participation in the Uniform Program, the agency 
strongly encourages each of the pilot States to maintain the current 
reciprocal arrangements. The FHWA also encourages other States to 
examine the potential for achieving reciprocity in permitting and 
registration programs. If the common goal is to ensure the safe 
transportation of hazardous materials, there should be a common 
approach to accomplishing the goal. The States are not prohibited from 
having reciprocal agreements and there is no readily apparent reason 
for the States' refusal to cooperate with neighboring jurisdictions to 
establish reciprocity. Irrespective of whether there is a Federal 
mandate, the States should establish reciprocal agreements whenever 
possible.

Comments in Opposition to Implementing All of the Alliance's 
Recommendations

    Eight commenters opposed implementation of some, or all of, the 
Alliance's Uniform Program. The Advocates, Blair America, Inc., the 
IME, the Idaho State Police, and the Iowa DOT opposed implementing the 
Alliance's recommended program. The Michigan DEQ, New Jersey Attorney 
General, and the NEWMOA support implementing the Alliance's 
recommendations for hazardous materials transportation, but oppose 
mandating reciprocity of permitting requirements for hazardous waste 
transporters.
    The NEWMOA 2 stated:

    \2\ The NEWMOA is a non-partisan, nonprofit interstate 
association that was established by the Governors of the New England 
States as an official interstate, regional organization, in 
accordance with section 1005 of the Resource Conservation and 
Recovery Act (RCRA), 42 U.S.C. 6901 et seq. The membership consists 
of State environmental agency directors of the hazardous waste, 
solid waste, waste site cleanup, and pollution prevention programs 
in Connecticut, Maine, Massachusetts, New Hampshire, New Jersey, New 
York, Rhode Island, and Vermont.
---------------------------------------------------------------------------

    Generally, our state hazardous waste programs approve of the 
uniform permit forms that the Alliance and its support staff have 
developed. However, we continue to have serious reservations about 
the effects that base-state permitting/permit reciprocity and 
related issues will have on our state's ability to effectively 
regulate hazardous wastes. These reservations persist despite a 
number of major improvements to the model program that were made by 
the Alliance and its staff to address our, and other states'', 
concerns. We believe that, to a considerable degree, these concerns 
are rooted in differences between relevant statutory goals that may 
be difficult to reconcile without additional public airing of the 
environmental regulatory issues that we raise. Finally, we would 
like to briefly address DOT's policy concerning preemption of state 
hazardous waste regulatory requirements. While this policy is not 
addressed by the Alliance's report it has, in our view, a bearing on 
your agency's decisions regarding the Alliance's recommendations and 
their implementation.

    The NEWMOA indicated that each of its member States has a rigorous 
permitting program for hazardous waste transporters and facilities 
where wastes are stored and transferred. Each of the States requires 
extensive disclosure of ownership, criminal history, and history of 
compliance with environmental and safety laws and regulations as a 
condition for receiving and maintaining a permit. The NEWMOA stated:

    These state programs were created to fill a major gap in the 
``cradle to grave'' regulatory concept for hazardous wastes that was 
envisioned by congress and is encouraged in RCRA (Resource 
Conservation and Recovery Act). Our accumulated experience has 
taught our states that any activities involving wastes require a 
higher degree of regulatory scrutiny than activities involving 
commercial commodities which have value. An unfortunate part of this 
experience is the

[[Page 15368]]

legacy of soil and groundwater contamination present in each of our 
states. This contamination, in part, is the result of hazardous 
wastes discharged prior to current environmental standards being 
implemented at either the state or federal level. Section 22 of 
HMTUSA does not mention or address this critical element of our 
state hazardous waste programs. Thus, it is not surprising that the 
Alliance and its staff have had difficulty addressing our concerns. 
While we believe that the Alliance's Model Program should improve 
the overall regulation of hazardous materials transportation, we 
fear that it would, as presently proposed, erode adequate cradle to 
grave control of hazardous waste over time.
    The concept of reciprocity appears reasonable enough when 
applied to the relatively straightforward permit issues involved in 
transportation safety. However, permit reciprocity becomes more 
complicated when applied to less quantifiable issues, such as 
business integrity, that are important considerations when 
regulating hazardous wastes. The degree of investigation required in 
such permit reviews is often a matter of judgement, based on 
experience and knowledge of a transporter's operations, making the 
overview of such activities by a peer review group difficult to 
administer and enforce, and unrealistically demanding of resources. 
Consequently, NEWMOA's directors do not feel confident that the peer 
review mechanism would ensure consistently adequate permit reviews.

    The Michigan DEQ stated:

    The program needs to develop flexibility to handle non-Hazardous 
Materials (HazMat) regulated wastes. Many states have developed 
programs which take into account historical problems which go beyond 
the scope of HazMat regulated materials such as hazardous waste 
managed under the Resource Conservation and Recovery Act. Hazardous 
waste is a specific subset of the HazMat regulated under the program 
and has a completely different set of problems associated with it, 
primarily because it has no inherent value (i.e. it is not a 
product, but a waste that is normally being transported for 
disposal). States, therefore, set up specific licensing/permitting 
programs for dealing with this material that go beyond safety 
aspects of the carriers and other HazMat concerns to assure that the 
waste is effectively transported and disposed. The proposed Alliance 
recommendations for a Uniform program do not take into account the 
concerns that states have to deal with concerning transportation of 
hazardous or other wastes. Each state should be allowed to develop 
licensing/permitting programs that reflect the state's particular 
needs and historical problems.

    State agencies in Idaho and Iowa opposed all aspects of the 
Alliance's Uniform Program. The Idaho State Police stated:

    The Uniform HazMat Transportation Procedures as recommended in 
the Alliance's final report would negatively impact Idaho's efforts 
and thus negatively impact transportation safety in our state. The 
new system would preempt the state fee with no guarantee of 
replacement funding. The Idaho State Legislature is unlikely to 
adopt the procedures.
    The Alliance's Uniform HazMat Transportation Procedures are more 
complex and stringent than mandated by Section 22 of HMTUSA. The 
model creates another regulatory agency at a time when government 
agencies and regulations are being minimized. The new agency would 
also have some authority without being a governmental agency or 
answerable to elected officials.
    Due to the complexity of the procedures, administrative costs 
would increase when the purpose of the mandate is to reduce costs to 
government and carriers. The state fee collecting agency, now under 
constraint to consolidate and simplify procedures, will not be 
supportive of the additional administrative burden. Considerable 
training and carrier assistance would be required to implement the 
new system. Carrier fees would also be used to support the Board and 
national staff functions, a new cost. In the final report, concern 
was expressed regarding lower revenues to the states. The response 
was a suggestion to increase the registration fees which nullifies 
the economic advantage being described in the report.

    The Advocates expressed concern that the Alliance's final report 
did not include an assessment of potential health and safety benefits 
for implementing the Uniform Program. The Advocates stated:

    Our primary concern with the report centers on the findings and 
recommendations of Section V: Enhancement of Health and Safety. In 
this section, the report's authors cite a continuing urgency on the 
part of FHWA officials for a demonstration that the mechanisms of 
the four state pilot programs actually increase public benefits by 
improving the consequent health and safety of hazmat transport. The 
agency wanted assurances that the fundamental concepts of the pilot 
programs such as base state registration and reciprocity generate 
verifiable reductions in hazmat incidents. The report, p. 38.
    The report responds to this urgent plea for demonstrable health 
and safety benefits by indicating that safety benefits consist of an 
overall increased awareness of the need for carriers to augment the 
quality of their internal oversight processes which can produce 
better operations through improved compliance with the various 
requirements of hazmat transport. Id.
    Advocates agrees that a pilot program cannot by itself produce 
an uncontested increase in safe hazmat operations, given the small 
number of states and the lengths of pilot program participation. We 
seriously doubt that sufficient statistical power could be produced 
from the small sample sizes in four pilot states' hazmat operations 
over just a few years.
    Nevertheless, we ultimately agree with the FHWA's insistence on 
``bottom line'' health and safety benefits that must be generated 
from the program if it is to serve as (a) model for federal 
regulatory action nationwide. There must be a clear and convincing 
demonstration that the proposed system of registration and 
reciprocity not only produces improved internal oversight and review 
by hazmat carriers, and arguably improved compliance with hazmat 
regulations, but also significant and sustained decreases in hazmat 
incidents and their severity.

    The Advocates also commented about findings in the report that show 
``widespread, chronic violation of threshold requirements and 
responsibilities of hazmat carriers, such as insufficient limits on 
hazmat transportation insurance, partial or non-existent registration 
and/or permit securement, and unresolved civil forfeiture payments for 
violations.'' The Advocates stated:

    It is clear that some of the hazmat carriers detected through 
the pilot program present a danger to public health and safety, and 
to environmental protection, and, in some cases, an imminent threat 
to public health and safety. Even casual extrapolation of these 
findings beyond the four pilot states is a cause of grave concern to 
national safety organizations such as Advocates and should be a 
strong motivating factor in the FHWA's resolve to require stringent 
reforms through the hazmat transportation regulations to verifiably 
advance public health and safety.

    Blair America, Inc., one of the motor carriers that participated in 
the Alliance's pilot study, opposed implementing the Alliance's Uniform 
Program. Blair America stated:

    Of the four states in the Alliance, we transport HazMat through 
only two of them (OH and WV), yet we were forced to pay larger fees 
to the two other states through which we never transport HazMat 
loads. Of the $275.00 we pay to the Ohio P.U.C. for HazMat 
registration, $155.00--more than 56% of the total--is distributed to 
MN and NV, states through which we do not transport hazardous 
materials. To us, this is just throwing money away because it does 
us no good, but is a windfall to the states which do nothing to earn 
it.

FHWA Response to Commenters Opposed to Implementing the Alliance's 
Recommendations

    The FHWA believes the States' concern that the Uniform Program does 
not provide adequate procedures for ensuring oversight of hazardous 
wastes transporters can be resolved through further negotiations 
between the Alliance and the State agencies responsible for regulating 
the transportation of hazardous wastes. The commenters indicated it is 
necessary to require extensive disclosure of company ownership, 
criminal history of company management, and history of compliance with 
environmental and safety laws and regulations as a condition for 
receiving and maintaining a permit. The FHWA

[[Page 15369]]

understands the States' desire to know as much as possible about 
hazardous waste transporters, but cannot pinpoint specific reasons why 
the States cannot achieve reciprocity.
    Part III of the model application developed by the Alliance 
includes questions for transporters of hazardous waste. The form 
requests the full name, date of birth, driver's license number and all 
aliases used for individuals who hold, or have held in the last three 
years, certain management positions. The application form also requests 
information on parent companies, affiliates and subsidiaries, major 
contractors and clients. In addition, the form has a legal proceedings 
section for information on past criminal activities. The commenters did 
not provide explanations of why the information requested in the 
Alliance's model application would not, if accurately documented, be 
satisfactory in identifying high-risk motor carrier operations that 
should be denied a permit.
    The FHWA notes that achieving uniformity and reciprocity requires 
compromise on the part of all of the States. The agency is concerned 
that the States have not displayed a willingness to compromise on the 
specific information requested from motor carriers or the procedures 
used to verify information provided on registration and permitting 
forms. The agency strongly recommends that each State make a clear 
distinction between concerns about the fee collection and distribution 
process and concerns about the information requested on the 
registration/permitting form(s) when deciding whether to support or 
oppose the Alliance's Uniform Program. This will enable the Alliance to 
more effectively respond to the States' concerns.
    With regard to commenters reference to the RCRA, the agency has 
carefully reviewed the statutory requirements codified at 42 U.S.C. 
6901 et seq. and does not believe the States' responsibilities under 
the RCRA preclude implementation of the Uniform Program. The RCRA 
requires that the Environmental Protection Agency, after consultation 
with State authorities, promulgate guidelines to assist States in the 
development of State hazardous waste programs. The State programs could 
cover the generation, transportation, treatment, storage, or disposal 
of hazardous waste. Therefore, the States' current permitting and 
registration activities under the RCRA go far beyond the scope of the 
Alliance's Uniform Program. However, the FHWA notes the RCRA does not 
prohibit uniformity or reciprocity among State hazardous waste 
programs. The assertion that programs developed under the RCRA would be 
adversely affected by the adoption of the Alliance's recommendations 
are not supported by the information the commenters provided.
    The FHWA agrees with the Advocates that the Alliance's final report 
does not indicate there will be significant and sustained decreases in 
hazardous materials incidents. Although Section 5119 does not stipulate 
that the uniform forms and procedures developed by the working group 
achieve a certain level of effectiveness at preventing hazardous 
materials incidents, the FHWA believes the implementation of the 
Uniform Program should, at a minimum, provide quantitative safety 
benefits. The Uniform Program, if implemented, would require some 
States to be more thorough in assessing motor carriers' safety fitness 
prior to registering and permitting those carriers. At the same time, 
other States may be forced to rely on less information to assess a 
carrier's safety fitness. The final report does not provide information 
on the effectiveness of the current State programs at improving safety, 
nor does it provide an estimate of how the effectiveness of the 
individual States' programs may change as a result of adopting the 
Uniform Program. The report implies that all registration and 
permitting programs are cost effective tools to improve safety and that 
the implementation of the Uniform Program will offer improvements over 
the status quo.
    The FHWA acknowledges that a rigorous permitting and registration 
system can be used to identify motor carriers that may not have 
sufficient safety management controls to properly handle the 
transportation of hazardous materials. It is in the best interest of 
the motoring public that unsafe motor carriers be restricted from 
transporting hazardous materials, wastes, and substances. However, the 
final report does not indicate whether each of the current State 
registration and permitting programs are accomplishing the goal of 
keeping unsafe carriers from transporting these commodities, or that 
the implementation of the Uniform Program will accomplish this 
objective.
    Irrespective of the FHWA's views on the merits of the commenters 
arguments against implementing the Alliance's recommendations, the 
agency must reiterate that it is inappropriate to initiate rulemaking 
until it has sufficient information to quantify the costs and the 
benefits of implementing the Uniform Program. Section 5119 does not 
exempt the agency from statutes and Executive Orders governing the 
rulemaking process in general, and the specific statutes concerning 
preemption of State laws and regulations.
    For example, Executive Order 12866 requires Federal agencies to 
promulgate only such regulations as are required by law, are necessary 
to interpret the law, or are made necessary by compelling public need, 
such as, failures of private markets to protect or improve the health 
and safety of the public, the environment, or the well-being of the 
American people. In deciding whether and how to regulate, agencies must 
assess all costs and benefits of available regulatory alternatives, 
including the alternative of not regulating. Costs and benefits shall 
be understood to include both quantifiable measures (to the fullest 
extent that these can be usefully estimated) and qualitative measures 
of costs and benefits that are difficult to quantify, but nevertheless 
essential to consider. Further, in choosing among alternative 
regulatory approaches, agencies are directed to select those approaches 
that maximize net benefits (including potential economic, 
environmental, public health and safety, and other advantages; 
distributive impacts; and equity), unless a statute requires another 
regulatory approach.
    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 
48) requires agencies to do a qualitative and quantitative assessment 
of the costs and benefits of the proposed rulemakings that would 
require expenditures by State, local, and tribal governments. The 
assessment must include an analysis of the extent to which such costs 
to State, local, and tribal governments may be paid with Federal 
financial assistance and the extent to which there are available 
Federal resources to carry out the mandate. Agencies are also required 
to provide reasonable estimates of future compliance costs and any 
disproportionate budgetary effects upon a particular region of the 
country or particular State, local, or tribal government, or particular 
segment of the private sector.
    The FHWA must emphasize that the analyses required by the Executive 
Orders and statutes must be performed before a proposed rulemaking can 
be issued. The information provided by the commenters and other 
information currently available to the agency is not sufficient for 
conducting the types of analyses required by the Executive Orders and 
statutes.

Other Issues Discussed by Commenters

    Several of the commenters discussed the relationship between the 
Alliance's Uniform Program and the Federal and

[[Page 15370]]

State initiatives listed in the July 9, 1996, notice and repeated in 
the appendix to this notice.

Specific Issues

    The Michigan State Police believes the Research and Special 
Programs Administration's (RSPA) registration program should be 
eliminated if the Uniform Program is implemented. The Michigan State 
Police argues there is no need to have a dual registration system by 
both the State and Federal governments. The Michigan State Police 
indicated the Alliance's Uniform Program will accomplish the same 
objectives as the RSPA's program.
    On the subject of the FHWA's safety permit rulemaking (discussed in 
the appendix to this notice), the Michigan State Police stated:

    The (Michigan State Police) views the FHWA's proposed Safety 
Permit Program in the same light as the RSPA [Registration] Program. 
Permits and registration do little, if anything, to improve safety. 
Just because a vehicle or a company is operated safety today does 
not mean it will operate safely tomorrow.
    Permit programs do, however, identify the industry to the 
enforcement agency and give a ``snapshot'' of how they operate. If 
used appropriately, they do represent a legitimate revenue 
collection for training and enforcement funding.
    Due to the nature of the national and international trucking 
industry, including sheer size and ever-changing players, the 
Federal Government is not in a position to adequately implement and 
maintain an effective permit program. Any permit system would be 
infinitely better handled at the state level, as the personnel are 
much closer to the individuals in the industry. The Alliance Program 
will allow USDOT access of the information in the system.
    The (Michigan State Police) does not support the development of 
another national-level database, considering the problems with MCMIS 
(the FHWA's Motor Carrier Management Information System).

    The Michigan State Police also offered comments on the potential 
relationship between the Alliance's Uniform Program and the FHWA's 
Commercial Vehicle Information System (CVIS) Feasibility Study and 
motor carrier identification numbers (USDOT numbers). The Michigan 
State Police agree with the initial SafeStat assessment of fitness and 
believes that coordinating the SafeStat scores with the Alliance permit 
is simply an issue of software compatibility. By contrast, the Michigan 
State Police believe there are problems with the current motor carrier 
identification numbering system. The Michigan State Police stated:
    The numbering system used by USDOT to identify motor carriers is 
in definite need of repair. There are far too many mismatches in the 
system, which creates numerous difficulties in the MCMIS (Motor 
Carrier Management Information System) and Safetynet systems. As 
computerized data is becoming increasingly more important, the 
(Michigan State Police believe) the USDOT numbering system should be 
reworked to address concerns related by the States and industry. As 
FHWA is also developing shipper information for hazardous materials 
violations, a unique identifier must also be developed for them. 
Logic would dictate that these programs be adaptable to each other 
to provide consistent, accurate information.

    The Iowa DOT believes the Alliance's Uniform Program competes with 
the RSPA's registration program. The State argues that one registration 
program is enough. The Iowa DOT stated:

    The USDOT's Hazardous Materials Registration Program should be 
changed. It should encompass all hazardous materials offered for 
transportation or transported, which would require the transport 
vehicle to be marked or placarded. Second, this program should be 
administered by each state with the USDOT providing guidance. It 
seems unusual that shippers and carriers send their registration 
money to Washington, D.C., have RSPA take a processing fee and then 
return money to the states.

    The Iowa DOT also discussed the FHWA's CVIS program. The Iowa DOT 
stated:

    The Commercial Vehicle Information System (CVIS) feasibility 
study currently underway should be encouraged to include hazardous 
material carriers in the SafeStat Identification Algorithm (either 
by incorporating it into an existing safety evaluation area or 
creating a separate safety evaluation area relating to HM). This 
would allow CVIS to identify ``at risk'' hazardous material 
carriers.
    The Ohio PUC also discussed the CVIS program. The Ohio PUC 
stated: Although the Commission is supportive of the concept behind 
the CVIS program as a base-state, reciprocal program, the CVIS 
program has no specific hazardous materials component and is only in 
the pilot stage. The purpose of the Uniform Program is to ensure 
that carriers are qualified to transport hazardous materials. This 
includes compliance with provisions such as hazmat training and 
insurance where the carrier must certify compliance prior to 
transportation; the CVIS program is retrospective in nature, 
reviewing safety performance only. Moreover, the practicality and 
effectiveness of revoking vehicle registrations privileges is 
uncertain at best. In the future, after completion of the CVIS pilot 
program, there may be a decision by the States to coordinate more 
closely activities under CVIS and the Uniform Program, such as 
compliance reviews; however, since the Uniform Program has 
successfully completed its pilot process, there is no need to 
further delay implementation of the Uniform Program in order to wait 
for the completion and review of the CVIS pilot.

    The Ohio PUC provided general comments on all of the Federal and 
State initiatives the FHWA listed in the July 9, 1996, notice. The Ohio 
PUC stated:

    With respect to the relationship of the Uniform Program with all 
four programs described in the Request for Comments, the FHWA is not 
taking advantage of the key lesson learned in studying intelligent 
vehicle transportation systems. In the CVISN (Commercial Vehicle 
Information System Network) project, the FHWA recognized that, 
rather than condensing all databases currently gathered by States 
into a single, massive database, efficiencies will be achieved 
through a system of computer pointers and triggers which would 
create a network of smaller databases. The programs described in the 
Request for Comments are examples of other databases which should be 
able to share information with the Uniform Program repository; 
individual states could then coordinate activities, such as 
compliance reviews or audits, across these programs in order to 
create efficiencies, when the states deems appropriate in allocating 
resources for transportation regulatory activities. It is neither 
necessary nor desirable to consolidate all of these programs into a 
single program, administered on the Federal level, with a single 
massive database.

    The Wisconsin DOT stated:

    Although there is some merit in the Alliance's recommendations 
that uniform program permits supplant federal registration and 
permits, and that Congress consider eliminating the federal 
registration program, we believe that these recommendations are 
premature. Significant differences exist between the two programs. 
For instance, the federal program covers offerors and carriers using 
water, air, rail or highway modes to transport certain special 
categories of hazardous materials. The uniform program covers motor 
carriers who transport all placarded hazardous materials, as well as 
bulk-packaged hazardous substances and marine pollutants, and 
hazardous wastes requiring a uniform manifest. The federal program 
exempts government agencies, while under the uniform program, they 
may be subject to registration. These and other discrepancies need 
to be addressed before considering coordination of the two programs 
or the elimination of the federal program.

    The Coalition presented its recommendation on how the FHWA could 
satisfy the statutory requirements of 49 U.S.C. 5109 concerning Federal 
motor carrier safety permits for certain hazardous materials 
transporters, and 49 U.S.C. 5119 concerning uniform forms and 
procedures for registration and permitting of hazardous materials 
transporters. The Coalition stated:

    Congress charged the Secretary of Transportation with developing 
a permitting program for transporters of certain hazardous materials 
(49 U.S.C. 5109). However, under the Alliance program those same 
transporters will already be subject to permitting requirements. 
Therefore, any Federal permit or registration should focus on and 
apply

[[Page 15371]]

only to motor carriers that operate in those states that do not wish 
to become a member of the Uniform Program. The Coalition suggests 
the following:
    (1) If the motor carrier operates only in Federal Program 
states, the motor carrier would be bound by the Federal permit 
requirements and would not be permitted to operate in Uniform 
Program States without first obtaining the proper credentials.
    (2) If a motor carrier operates only in Uniform Program states 
or, both Uniform Program and Federal Program states, the Uniform 
Program registration and permit would be all the motor carrier needs 
to operate in all jurisdictions.

    The Coalition indicated that it believes this type of system would 
provide for a higher level of regulatory compliance by motor carriers 
and at the same time would lessen the total regulatory burden on 
hazardous materials transporters.

FHWA Response to Commenters

    The FHWA believes the commenters have identified significant 
reasons why the Federal and State initiatives and programs described in 
the July 9, 1996, notice are not, as currently operated, acceptable to 
the States as tools to help monitor hazardous materials, waste, and 
substances shippers and transporters. Each of the initiatives was 
started for a variety of reasons which do not appear to coincide with 
the reasons the States have developed their registration and permitting 
programs. As such, the programs do not, in the opinion of the State 
agencies, provide enough detailed information on all hazardous 
materials transporters.
    For example, the current Federal Hazardous Materials Transportation 
Registration and Fee Assessment Program covers entities who offer or 
transport (in commerce) any of the following materials:
    1. Any highway route-controlled quantity of a Class 7 (radioactive) 
material;
    2. More than 25 kilograms (55 pounds) of a Division 1.1, 1.2, 1.3 
(explosive) material in a motor vehicle, rail car, or freight 
container;
    3. More than one liter (1.06 quarts) per package of a material 
extremely toxic by inhalation (a material poisonous by inhalation that 
meets the criteria for ``hazard zone A'');
    4. A hazardous material in a bulk packaging having a capacity equal 
to or greater than 13,248 liters (3,500 gallons) for liquids or gases 
or more than 13.24 cubic meters (468 cubic feet) for solids; or
    5. A shipment, in other than a bulk packaging, of 2,268 kilograms 
(5,000 pounds) gross weight or more of a class of hazardous materials 
for which placarding of a vehicle, rail car, or freight container is 
required for that class.
    The Federal program was established in response to 49 U.S.C. 
5108(a)(1) and covers a subset of all hazardous materials shipments. 
Section 5108(a)(2) gives the Secretary the authority to expand the 
registration program to cover persons transporting or causing to be 
transported hazardous materials not included in the list above.
    With regards to the comments on the FHWA's SafeStat program, the 
FHWA notes that SafeStat is a performance-based approach to rank motor 
carriers for on-site compliance reviews (CRs). The program is intended 
to more effectively focus the FHWA and State resources on motor 
carriers who have demonstrated poor safety performance through roadside 
inspections, prior enforcement actions and, most importantly, 
accidents. SafeStat uses four broad Safety Evaluation Areas (SEAs): The 
Accident SEA, the Driver SEA, the Vehicle SEA, and the Safety 
Management SEA. For each SEA, values are determined for all carriers 
that have sufficient safety data related to that SEA. If sufficient 
safety data is not available, a value is not calculated. No assumptions 
are made based upon a lack of data. Each carrier's SEA value 
approximates the motor carrier's percentile rank, relative to all other 
motor carriers having sufficient data to be assessed within that same 
SEA. By using the percentile rank for each SEA, SafeStat avoids using 
arbitrary predetermined levels of scoring and provides an easily 
understood value for each SEA. The SEA values range between 0 and 100. 
The higher a carrier's SEA value, the worse its safety status. 
Therefore, an Accident SEA score of 80 indicates that approximately 80 
percent of the motor carrier population had a better level of safety 
performance than the subject carrier with respect to accidents and 20 
percent had worse. Similarly, a Vehicle SEA score of 75 indicates that 
approximately 75 percent of the motor carrier population had a better 
level of safety performance than the subject motor carrier with respect 
to their maintenance practices and the operating condition of their 
vehicles.
    SafeStat allows the relative weight for each SEA to be adjusted for 
purposes of calculating an overall score. Since accident history is the 
most important measure of safety, SafeStat places double emphasis upon 
the Accident SEA in calculating an overall SafeStat score. Motor 
carriers that are identified as being within the worst 25 percent of 
the ranked population within an individual SEA are deemed an 
unacceptable performer for that SEA.
    The FHWA acknowledges SafeStat does not include an SEA for 
hazardous materials. The agency understands the concerns that States 
and the general public have about hazardous materials. The SafeStat 
program, as currently structured, provides a performance-based approach 
for prioritizing motor carriers for on-site compliance reviews. The 
prioritization algorithm does not make a distinction for commodities 
transported. The mere fact that a motor carrier transports hazardous 
materials does not mean the carrier should be a higher priority than a 
carrier that transports nonhazardous materials but performs poorly in 
the SEAs. The FHWA believes the SafeStat program can be used as part of 
a hazardous materials permitting framework. Hazardous materials 
carriers that perform poorly in the current SEAs would be considered 
ineligible for a permit and carriers for which there is insufficient 
data would be granted the permit based upon information obtained from 
company officials and, if necessary, an on-site compliance review.
    The FHWA notes that none of the commenters provided information on 
current State activities to monitor the safety performance of the 
carriers who are required to register or obtain permits. The States 
commenting to this docket have emphasized the importance of identifying 
the hazardous materials shippers and transporters, but have not 
indicated whether the information is being used to prioritize 
enforcement actions or compliance reviews.
    The FHWA disagrees with the Michigan State Police's statement that 
registration and permitting programs do not improve safety. The FHWA 
believes that a carefully structured registration and/or permitting 
program that focuses on the risks associated with the specific 
commodities transported, and linked to enforcement activities initiated 
in response to poor safety performance could have safety benefits. To 
date, the States have not submitted comments to the FHWA indicating 
that their programs are based upon any form of risk assessment or 
linked to specific enforcement activities aimed at hazardous materials 
carriers with poor overall safety records.
    With regard to the Michigan State Police's comments about MCMIS, 
the FHWA intends to issue a notice of proposed rulemaking to require 
motor carriers to periodically update the information submitted to the 
agency on the Motor Carrier Identification Report (Form MCS-150). 
Section 385.21 of the

[[Page 15372]]

Federal Motor Carrier Safety Regulations requires motor carriers 
conducting operations in interstate commerce to file a Form MCS-150 to 
the agency within 90 days after beginning operations. Currently, 
carriers are not required to update the information submitted. The FHWA 
is aware of problems with the current system and believes the 
forthcoming rulemaking will provide the States and the motor carrier 
industry with an opportunity to work with the agency to improve the 
accuracy of the information in the MCMIS.
    The FHWA believes the comments about the capabilities of the States 
versus those of the Federal government are a strong indication of the 
need for uniformity and reciprocity. The FHWA agrees with the Ohio PUC 
that efficiencies can be achieved through a network of databases using 
a system of computer pointers and triggers. However, the States have 
apparently refused to embrace this concept. The FHWA must reiterate 
that there is no prohibition on uniformity and reciprocity. The States 
need only agree to work together to make uniformity and reciprocity a 
reality. The Alliance has provided its recommendations on uniform forms 
and procedures and the States have not shown a willingness to adopt the 
Alliance's recommendations. Therefore, it is not a question of the FHWA 
taking advantage of lessons learned from previous Federal-State 
initiatives, but a question of why the States have not elected to work 
together for the common goal of ensuring an efficient and effective 
program to improve the safety of hazardous materials transportation.
    The FHWA must emphasize that the Congress directed the Secretary to 
establish the Federal registration program implemented by the RSPA, and 
the Federal permitting program proposed by the FHWA on June 17, 1993 
(58 FR 33418). These programs are congressional mandates and should not 
be considered as a form of competition between the Federal and State 
governments. The States have an important role in highway safety and a 
right to go beyond the scope of Federal programs if, based upon data, 
it is clear there are safety issues that need to be resolved. To date, 
none of the commenters have identified specific safety issues, nor have 
they provided a clear explanation as to why the States cannot achieve a 
consensus on the forms and procedures used for the registration and 
permitting of hazardous materials transporters.
    In response to the Coalition's recommendation for implementation of 
the Federal permitting requirement, the FHWA believes the approach may 
have merit if most of the States adopt the Alliance's Uniform Program. 
The FHWA believes this approach could help to minimize the paperwork 
burden on the motor carrier industry and the FHWA, while providing an 
effective means to monitor the safety performance of the hazardous 
materials carriers that would be covered by the proposed Federal 
permitting requirements. The agency will consider the Coalition's 
comments along with those of persons commenting in response to the June 
17, 1993, NPRM.

Request for Additional Comments

Questions for State Agencies

    Generally, the establishment of a permitting requirement means 
motor carriers that fail to meet the minimum requirements for obtaining 
the permit would not be allowed to transport certain classes of 
hazardous materials, substances or wastes. Establishing a permitting 
requirement also means that motor carriers which are granted a permit, 
would lose their privileges to transport certain classes of hazardous 
materials if the terms and conditions of the permit are violated. If 
there are quantifiable safety benefits to a permitting program, they 
would come in the form of preventing hazardous materials incidents 
caused by unqualified motor carriers transporting the materials for 
which a permit would be required. Given these assumptions, the FHWA 
requests that State agencies responsible for the permitting of 
hazardous materials transporters answer the following questions:
    1. What types of hazardous materials, wastes, or substances may 
only be transported in or through your State by motor carriers that 
have a permit?
    2. Why did your State initiate its permitting program and in what 
year did the program take effect? For example, was there a specific 
hazardous materials incident(s) that prompted the development of the 
program?
    3. How many motor carriers applied for permits in each of the last 
5 calendar/fiscal years (please indicate the period covered in your 
State's fiscal year)? Of the motor carriers that applied for permits 
during each of the last 5 calendar/fiscal years, how many were denied a 
permit and what were the typical reasons for denial of the permit?
    4. During each of the last 5 calendar/fiscal years, how many 
carriers had their permits revoked or suspended and what were the 
typical reasons for the revocation or suspension? How many of the motor 
carriers had their privileges to transport hazardous materials, 
substances, and wastes reinstated?
    5. Are motor carriers required to renew the permit? If yes, what is 
the procedure for renewing the permit and how often is the carrier 
required to renew the permit?
    6. Looking specifically at the number of highway transportation-
related hazardous materials incidents (involving a hazardous material, 
substance, or waste for which the transporter is required to obtain a 
permit), how many incidents, fatalities, and injuries occurred in each 
of the last 5 calendar/fiscal years? Also, what was the dollar amount 
of property damage and environmental restoration associated with the 
incidents in each of the last 5 calendar/fiscal years.
    The following questions are intended to gather information 
concerning the costs associated with establishing and operating the 
various State permitting programs and the States' estimates of the 
economic and information collection burden on motor carriers subject to 
the States' permitting requirements:
    7. How much money was needed to establish your State's permitting 
program? Please include all costs associated with hiring and training 
staff, setting up a computer system, etc.
    8. How much money did your State spend in each of the last 5 
calendar/fiscal years to maintain its permitting program?
    9. How much money was collected during each of the last 5 calendar/
fiscal years in the form of application and processing fees that motor 
carriers were required to pay in order to receive a permit?
    10. What was the application fee and, if applicable, the processing 
fee that was charged for each of the last 5 calendar/fiscal years?
    11. How much time does your State estimate that the average motor 
carrier spends completing an application for the State's permit?
    12. How much time does your State estimate that the average motor 
carrier spends renewing the State permit?
    13. What types of records or other documents related to the permit 
or registration requirements are motor carriers required to maintain?
    The next series of questions concern reciprocity between State 
programs. The FHWA is requesting information from States about 
potential institutional barriers to establishing Federal requirements 
for uniform forms and procedures for hazardous materials, substances, 
and wastes transportation.
    14. Does your State's permitting or registration program include a

[[Page 15373]]

reciprocity agreement with any other State's permitting or registration 
program? Please identify the State(s).
    15. If your State does not have a reciprocity agreement with 
another State(s), what specific requirements does your State impose on 
motor carriers that the other States do not cover?
    16. If the FHWA implemented a Uniform Program, using a base-State 
approach that required your State to accept permits issued by other 
States and to modify your State's forms and procedures, how much money 
in fees would your State lose? How much money would your State have to 
spend to modify its current permitting and/or registration system?

Motor Carrier Questions

    The next series of questions are intended to gather information 
from motor carriers about the economic and administrative burden 
associated with complying with State permitting and registration 
requirements.
    17. How many different State permitting and/or registration 
programs was your company subject to during each of the last 5 calendar 
years?
    18. What was the total for all State permit application and/or 
registration fees and, if applicable, processing fees that your company 
paid for each of the last 5 calendar years?
    19. What was the total for all State permit renewal fees that your 
company paid during each of the last 5 calendar years?
    20. On average, how much time does your company spend completing an 
application for a State permit or completing a State registration form?
    21. On average, how much time does your company estimate that it 
spends renewing each State permit?
    22. Are there any instances in which your company was granted a 
permit to transport specific commodities in a State(s), but denied a 
permit to operate in another State? Please identify the commodities and 
the States involved.

Comments Concerning Other Relevant Issues

    In addition to the questions listed, commenters are encouraged to 
discuss other issues that they believe are relevant to the discussion 
of uniform forms and procedures for hazardous materials, substances, 
and wastes. The FHWA requests that commenters examine current Federal 
and State initiatives concerning permitting and registration of motor 
carriers.

Current Federal And State Initiatives Concerning Registration and 
Permitting of Motor Carriers and Shippers

    There are several major activities underway which could be used as 
part of the hazardous materials transportation registration and 
permitting processes. These activities include: (1) The FHWA's motor 
carrier safety permits and inspection rulemaking; (2) the Research and 
Special Program Administration's (RSPA) Hazardous Materials 
Registration and Fee Assessment Program; (3) the Performance 
Registration Information System Management (PRISM) program (formerly 
referred to as the Commercial Vehicle Information System or CVIS); and 
(4) the elimination of the Interstate Commerce Commission (ICC) and the 
transfer of the ICC's registration (operating authority) and insurance 
programs to the FHWA. These initiatives, as well as the FHWA's motor 
carrier registration requirement--the motor carrier identification 
report (Form MCS-150) required by 49 CFR 385.21 and used by the FHWA to 
assign USDOT numbers--and the registration and insurance filings of 
for-hire motor carriers required by many States (Single State 
Registration System) provide a means for identifying transporters of 
hazardous materials and, for some of the programs, making certain that 
the carriers have appropriate levels of financial responsibility. 
However, each of these programs are commonly administered independently 
by separate agencies within a State.
    These initiatives may have a significant bearing on the public 
comments offered in response to this notice and on the ultimate 
direction of any resulting rulemaking actions affecting Federal and 
State registration and permitting of transporters and shippers of 
hazardous materials. Each of the initiatives is discussed in the 
appendix to this notice. The FHWA requests that commenters consider the 
Alliance's report and recommendations, and the specific types of 
information that carriers and shippers would be required to provide if 
the Alliance's recommendations were adopted by the FHWA. Commenters are 
encouraged to provide suggestions on whether the Alliance's recommended 
program should be implemented and whether the programs described in the 
appendix to this notice could be used to support the implementation of 
any portion of the Alliance's program.

Administrative Notice

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket at the above address. Comments received 
after the comment closing date will be filed in the docket and will be 
considered to the extent practical. In addition to late comments, the 
FHWA will also continue to file relevant information in the docket as 
it becomes available after the closing date. Interested persons should 
continue to examine the docket for new material.

    Authority: 49 U.S.C. 5119; 49 CFR 1.48.

    Issued on: March 20, 1998.
Gloria J. Jeff,
Deputy Administrator, Federal Highway Administration.

Appendix--Current Federal and State Initiatives Concerning Registration 
and Permitting of Motor Carriers and Shippers

I. FHWA Rulemaking on Motor Carrier Safety Permits and the 
Inspection of Vehicles Transporting Highway-Route-Controlled 
Quantities of Radioactive Materials [49 U.S.C. 5109(a) and 5105(e)]

    Section 5109(a), Motor Carrier Safety Permits, (originally 
enacted as one of the provisions of section 8 of the HMTUSA) 
provides that a motor carrier shall only transport, or cause the 
transportation of, hazardous materials in commerce if the carrier 
holds a safety permit issued by the Secretary and keeps a copy of 
the permit, or other proof of its existence, in the vehicle. The 
Secretary is required to prescribe by regulation the hazardous 
materials and amounts to which the permit requirement applies. 
However, the list of hazardous materials must include, at a minimum, 
and in amounts established by the Secretary, the following:
    (1) Division 1.1, 1.2, and 1.3 (class A or B explosives);
    (2) liquefied natural gas;
    (3) hazardous material the Secretary designates as extremely 
toxic by inhalation; and
    (4) a highway-route-controlled quantity of radioactive material, 
as defined by the Secretary.
    Section 5105(e), Inspections of Motor Vehicles Transporting 
Certain Material, (originally enacted as section 15 of the HMTUSA) 
directs the Secretary to issue regulations requiring that each motor 
vehicle transporting a highway-route-controlled quantity of Class 7 
(radioactive) material in commerce be inspected and certified as 
complying with the Federal hazardous materials and motor carrier 
safety laws and regulations. The Secretary may require the 
inspections to be conducted by Federal inspectors or in accordance 
with appropriate State procedures. The Secretary may allow self-
certification by motor carriers using employees that meet minimum 
qualifications set by the Secretary.

[[Page 15374]]

    On June 17, 1993, the FHWA published a notice of proposed 
rulemaking (NPRM) to implement the requirements of 49 U.S.C. 5109 
and 5105 (58 FR 33418). The FHWA proposed to amend part 397 of the 
Federal Motor Carrier Safety Regulations (FMCSRs) by adding a new 
subpart B, Motor Carrier Safety Permits. The notice proposed to 
initially limit the safety permit program to the transportation of 
the four classes of hazardous materials set forth in the statute, 
with phase-in periods for Division 1.1, 1.2, and 1.3 materials 
(Class A and B explosives) 3 and limiting the materials 
considered extremely toxic by inhalation to those that meet the 
criteria of Division 2.3, Hazard Zone A, or Division 6.1, Packing 
Group I, Hazard Zone A (see 49 CFR 173.115 and 173.132) and are 
transported in quantities of more than 1 liter (1.06 quarts). The 
proposed permit procedures made extensive use of existing FHWA 
programs, forms and procedures, and as a result, the agency proposed 
not to assess permit fees. To obtain a permit, a motor carrier would 
be required to submit a revised MCS-150 (Motor Carrier 
Identification Report) to the Regional Director, Office of Motor 
Carriers, for the region in which the motor carrier has its 
principal place of business. Determinations on safety permit 
applications would be based upon a safety fitness finding made 
pursuant to 49 CFR part 385. A ``satisfactory'' safety rating would 
be a prerequisite to the granting of a safety permit. A less than 
``satisfactory'' safety rating would result in a denial of the 
permit application. The FHWA would have the discretion to issue a 
temporary safety permit (120 days) to an unrated motor carrier 
pending a safety fitness determination. Safety permits would be 
valid for three years and would be renewable. Reviews of the FHWA's 
determinations on permit issuance would be handled pursuant to the 
existing procedures applicable to safety rating reviews (49 CFR 
385.15 and 385.17). The current safety rating notification letter 
would be modified to serve as the safety permit. The letter would 
bear a safety permit number, which would be the motor carrier's 
identification or census number assigned by the FHWA when the motor 
carrier submits the MCS-150 required by Sec. 385.21. Motor carriers 
would be required to display this permit number on the shipping 
papers and on the commercial motor vehicles used.
---------------------------------------------------------------------------

    \3\ The proposed phase-in period was to be implemented as 
follows:

                                                                        
                                          Covered quantities of class A 
            Effective date                     and/or B explosives      
                                                                        
Nov. 16, 1993.........................  454 kilograms (1,000 pounds) or 
                                         more.                          
Nov. 16, 1994.........................  227 kilograms (500 pounds) or   
                                         more.                          
Nov. 16, 1995.........................  25 kilograms (55 pounds) or more
                                                                        

    With regard to the inspection requirements of 49 U.S.C. 5105, 
the FHWA proposed that motor carriers transporting highway-route-
controlled quantities of Class 7 (radioactive) materials be required 
to inspect each commercial motor vehicle used before each trip and 
that a written certification by a qualified inspector be maintained. 
It was proposed that these vehicles be inspected through the use of 
the general inspection requirements contained in 49 CFR part 396, 
``Inspection, Repair, and Maintenance,'' and the more detailed 
inspection standards found in appendix G to 49 CFR subchapter B, 
``Minimum Periodic Inspection Standards.'' The inspector 
qualification requirements for the periodic inspection (specified in 
49 CFR 396.19) would be used to ensure that inspectors are qualified 
to perform the vehicle inspections.
    The FHWA carefully reviewed the various registration and 
permitting requirements of the Federal law and decided not to 
proceed with further rulemaking action to implement the requirements 
of 49 U.S.C. 5109 and 5105 until it had considered the final report 
and recommendations of the Alliance for implementing section 5119. 
This was considered the most effective way to satisfy all of these 
related statutory requirements, as the Alliance's recommendations 
would have a significant bearing on the implementation of the 
Federal safety permit and inspection requirements.

II. Federal Hazardous Materials Registration and Fee Assessment Program 
and the Hazardous Materials Emergency Preparedness Grant Program

    Section 5108(a)(1) (originally enacted as one of the provisions 
of section 8 of the HMTUSA) requires that each person transporting 
or causing to be transported in commerce the following hazardous 
materials must file a ``registration statement'' with the Secretary:
    (1) Highway-route-controlled quantities of Class 7 (radioactive) 
materials;
    (2) More than 25 kilograms of Division 1.1, 1.2, and 1.3 
(explosives) materials;
    (3) More than 1 liter in each package of a hazardous material 
which has been designated by the Secretary as extremely toxic by 
inhalation;
    (4) Hazardous material in a bulk package, container, or tank as 
defined by the Secretary if the package, container, or tank has a 
capacity of 13,249 or more liters (3,500 or more gallons) or has a 
volume greater than 13.25 cubic meters (468 cubic feet);
    (5) A shipment of at least 2,268 kg (5,000 pounds) (except in a 
bulk packaging) of a class of hazardous material requiring a 
placard.
    In addition, section 5108(a)(2) provides the Secretary with 
discretionary authority to require any of the following persons to 
file a registration statement:
    (1) A person transporting or causing to be transported hazardous 
materials in commerce and not covered by section 5108(a)(1);
    (2) A person manufacturing, fabricating, marking, maintaining, 
reconditioning, repairing, or testing a package or container the 
person represents, marks or certifies, or sells for use in 
transporting in commerce hazardous material the Secretary 
designates.
    Paragraph (g) of section 5108 authorizes the Secretary to 
establish, impose, and collect a fee for the processing of the 
registration statement, as well as an annual fee.
    Implementation of these requirements was delegated by the 
Secretary to the RSPA. Federal registration of hazardous materials 
offerors and transporters began in 1992 (57 FR 30620, July 9, 1992). 
Federal registration is required of persons engaged in certain 
activities that involve the offering or transporting of hazardous 
materials in interstate, intrastate, or foreign commerce by highway, 
rail, air, or water. Less than half of the current registrants have 
identified themselves as highway carriers. The Federal registration 
program has no preemptive effect upon State and local hazardous 
materials registration programs.
    The annual fee (currently $300) is used to fund grants to State 
and Indian tribal governments for hazardous materials planning and 
training purposes. The funds are allocated through the RSPA's 
Federal Hazardous Materials Emergency Preparedness (HMEP) Grant 
Program with the first grants awarded to qualifying State and Indian 
tribal governments in 1993. By law, 75 percent of the Federal grant 
monies awarded to the States is further distributed to local 
emergency response and planning agencies. The FY 1995 funds helped 
to provide: (1) Training for 121,000 emergency response personnel; 
(2) approximately 500 commodity flow studies and hazard analyses; 
(3) 4,500 emergency response plans updated or written for the first 
time; (4) assistance to 2,150 local emergency planning committees; 
and (5) 770 emergency exercises.
    In cooperation with the Alliance's pilot program, the concept of 
``one-stop shopping'' for Federal and State registration of motor 
carriers was tested by the Public Utilities Commission of Ohio 
(PUCO) and the RSPA. Motor carriers required to register with the 
State of Ohio were provided with the option of also submitting the 
Federal registration statement and fee to the PUCO for transmittal 
to the RSPA. For the 1994-95 registration year (from July 1, 1994 to 
June 30, 1995), approximately 200 persons registered in the Federal 
program through the PUCO. During the 1995-96 registration year, the 
number of persons choosing this option decreased sharply to 76 
persons. Only 16 of the participants in the 1994-95 registration 
year elected to use this process for the 1995-96 registration year. 
The test was completed at the end of the 1995-96 registration year 
and the results are being evaluated.

III. Performance Registration Information System Management (PRISM)

    Performance Registration Information System Management is based 
upon the Commercial Vehicle Information System (CVIS) feasibility 
study mandated by 49 U.S.C. 31106--section 31106 was originally 
enacted by section 4003 of the Intermodal Surface Transportation 
Efficiency Act of 1991 (ISTEA) (Pub. L. 102-240, 105 Stat. 1914, 
2144; December 8, 1991). Specifically, PRISM ties commercial motor 
vehicle registration privileges to a motor carrier's safety 
performance. For the first time, chronically unsafe motor carriers 
risk losing their vehicle registration privileges if they prove 
unable or unwilling to improve their operational safety levels after 
a designated period. The project is a cooperative effort involving 
the FHWA and five pilot States: Iowa (the lead State), Oregon, 
Colorado, Minnesota, and Indiana.
    Motor carriers are identified for inclusion in the PRISM 
improvement process

[[Page 15375]]

(MCSIP--Motor Carrier Safety Improvement Process) through the 
application of a carrier identification and prioritization algorithm 
referred to as the Safestat Identification Algorithm (Safestat). 
Safestat identifies ``At Risk'' motor carriers by producing a safety 
score for every interstate motor carrier. Motor carriers are ranked 
on a worst-first basis. Motor carriers with the lowest scores are 
considered to be ``At Risk'' and are scheduled for a compliance 
review (on-site visit), while motor carriers with less severe safety 
scores receive ``warning letters.'' Once a motor carrier has been 
identified for entry into the MCSIP, its safety performance is 
monitored using a second algorithm called the Safestat Monitoring 
Algorithm. The MCSIP process has been designed to provide numerous 
opportunities for motor carriers to improve their safety 
performance. Failure to improve safety performance, however, will 
result in progressively more severe penalties leading eventually to 
suspension or revocation of vehicle registration privileges.
    The PRISM could be used to identify hazardous materials (HM) 
carriers that are ``At Risk'' by modifying the Safestat 
Identification Algorithm to include additional information about HM 
motor carriers. In fact, it has been suggested that a separate 
safety evaluation area relating to HM be included in the SafeStat 
Identification Algorithm. Under this proposal, HM carriers that have 
been identified for entry into the MCSIP process and continue to 
score poorly may have their HM permits denied or suspended.

IV. Interstate Commerce Commission's (ICC) Carrier Registration and 
Insurance Requirements

    On December 29, 1995, the President signed the ICC Termination 
Act of 1995 (ICCTA) (Pub. L. 104-88, 109 Stat. 803), which 
eliminates the ICC and transfers certain motor carrier regulatory 
functions from the ICC to the FHWA. The principal functions 
transferred were the licensing and registration activities, 
insurance tracking, Mexican motor carrier oversight, and 
responsibilities for brokers, freight forwarders, and household 
goods carriers. All past operating authority licenses and financial 
responsibility filings remain valid, and all new applications and 
financial responsibility filings are processed by the FHWA. The 
ICCTA provides that registration generally remains in effect for up 
to five years unless it is suspended, amended, or revoked. Reasons 
for suspension or revocation may include unsafe operations, lack of 
the required financial responsibility coverage, or failure to comply 
with regulatory requirements.
    The FHWA's motor carrier programs are intended to ensure that 
motor carriers are properly identified, have adequate levels of 
financial responsibility, and operate in a safe manner. Under the 
present programs, for-hire motor carriers are registered and must 
show proof of financial responsibility and familiarity with the 
FHWA's safety regulations. The financial responsibility coverage of 
for-hire motor carriers is continuously monitored. Policy pre-
expiration notices obtained from the insurance companies, as well as 
internal audits, are used to determine compliance. Prior to an 
insurance policy lapsing, the carrier is contacted. An enforcement 
action, including litigation, can be used to stop the carrier from 
operating without financial responsibility. A motor carrier's 
operating authority can be revoked if financial responsibility is 
not obtained. A similar procedure applies to motor carriers that 
have been authorized to self-insure their operations.
    The Single State Registration System (SSRS) program was created 
to succeed the ``bingo card'' program administered by the ICC. The 
SSRS program is a base-State system whereby a motor carrier 
registers its interstate operating authority with, and provides 
proof of financial responsibility coverage to one State (a base-
State) instead of multiple States. The base-State then distributes 
the collected fees to other participating States in which the motor 
carrier's vehicles operate. State participation in the System was 
limited to those States participating in the bingo card program 
prior to January 1991. Fee amounts were limited to those imposed 
prior to November 1991, not to exceed $10 per vehicle.
    Under the ICCTA, the SSRS will continue to operate. However, the 
Department of Transportation (the Department) is required to 
consolidate the current USDOT identification number system, the 
SSRS, the former ICC registration system (including financial 
responsibility registration) into a single, on-line Federal system. 
The new system will contain information on, and identification of, 
all foreign and domestic motor carriers, brokers, and freight 
forwarders (as well as others required to register with the 
Department) as well as information on safety fitness and compliance 
with the required levels of financial responsibility coverage. The 
Secretary may establish fees to fully operate the system, including 
any personnel to support the overall registration and financial 
responsibility filing system.
    On August 26, 1996, the FHWA published an advance notice of 
proposed rulemaking (ANPRM) requesting comments on the development 
of the motor carrier replacement information and registration system 
(61 FR 43816). The agency is preparing a notice of proposed 
rulemaking for issuance in 1998.

[FR Doc. 98-8367 Filed 3-30-98; 8:45 am]
BILLING CODE 4910-22-P