[Federal Register Volume 67, Number 167 (Wednesday, August 28, 2002)]
[Rules and Regulations]
[Pages 55162-55165]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21917]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350 and 392

[Docket No. FMCSA-2002-13015]
RIN 2126-AA78


Registration Enforcement

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Interim final rule (IFR); request for comments.

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SUMMARY: The FMCSA amends its regulations to require that a motor 
carrier subject to the registration requirements under 49 U.S.C. 13902 
may not operate a commercial motor vehicle in interstate commerce 
unless it has registered with this agency. These motor carriers are 
further prohibited from operating beyond the scope of their 
registration. If an unregistered carrier's motor vehicle is discovered 
in operation or being operated beyond the scope of the carrier's 
registration, such motor vehicle will be placed out of service and the 
carrier may be subject to additional penalties. The States are 
currently required to enforce these registration requirements as a 
condition for receipt of Motor Carrier Safety Assistance Program funds. 
Amending the Federal Motor Carrier Safety Regulations (FMCSRs) to 
specifically include the out-of-service (OOS) provisions will help 
ensure that all carriers subject to 49 U.S.C. 13902 are apprised of and 
comply with applicable FMCSR's, operate only within the scope of 
registration, and operate safe vehicles within the United States. 
Benefits to the agency include the ability to more

[[Page 55163]]

accurately identify and monitor the safety fitness of motor carriers.

DATES: This interim final rule is effective September 27, 2002. FMCSA 
must receive comments by October 28, 2002.

ADDRESSES: You can mail, fax, hand deliver or electronically submit 
written comments to the Docket Management Facility, United States 
Department of Transportation, Dockets Management Facility, Room PL-401, 
400 Seventh Street, SW., Washington, DC 20590-0001 FAX (202) 493-2251, 
on-line at http://dms.dot.gov/submit. You must include the docket 
number that appears in the heading of this document in your comment. 
You can examine and copy all comments at the above address from 9 a.m. 
to 5 p.m., EST, Monday through Friday, except Federal holidays. You can 
also view all comments or download an electronic copy of this document 
from the DOT Docket Management System (DMS) at http://dms.dot.gov/search.htm and typing the last four digits of the docket number 
appearing at the heading of this document. The DMS is available 24 
hours each day, 365 days each year. You can get electronic submission 
and retrieval help and guidelines under the ``help'' section of the web 
site. If you want us to notify you that we received your comments, 
please include a self-addressed, stamped envelope or postcard or print 
the acknowledgement page that appears after submitting comments on-
line.
    Comments received after the comment closing date will be included 
in the docket and we will consider late comments to the extent 
practicable.

FOR FURTHER INFORMATION CONTACT: Mr. Larry Minor, (202) 366-4009, 
FMCSA, 400 Seventh Street, SW., Washington, DC 20590. Office hours are 
from 7:45 a.m. to 4:15 p.m., EST, Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Background

    Currently, a carrier desiring to operate in interstate commerce 
must submit to FMCSA a Motor Carrier Identification Report (Form MCS-
150). Additionally, for-hire applicants who are subject to 49 U.S.C. 
13902 must apply for appropriate operating authority and make the 
necessary administrative filings as required by the ICC Termination Act 
of 1995 (ICCTA) [Pub. L. 104-88, 109 Stat. 803 (1995)].
    Effective January 1, 2003, the agency will initiate its New Entrant 
Safety Assurance Process for all applicants to operate in interstate 
commerce. FMCSA announced this initiative in an interim final rule 
published in the May 13, 2002, Federal Reigster (67 FR 31978). Under 
the new entrant initiative, an applicant must additionally file a 
Safety Certification for Applications for U.S. DOT Number (Form MCS-
150A) with the MCS-150 and the application for operating authority (if 
applicable).The applicant will be provided educational and technical 
assistance material to assist in complying with the FMCSRs and 
applicable Hazardous Materials Regulations (HMRs), and must certify 
that he/she is knowledgeable about, and will comply with, these 
regulations. This will help ensure that the carrier is knowledgeable 
about applicable Federal motor carrier safety standards before being 
granted ``new entrant registration'' that will continue for a minimum 
of 18 months. During the 18-month period, FMCSA will evaluate the new 
entrant's safety management practices through a safety audit and 
monitor its on-road performance prior to granting the new entrant 
permanent registration.
    Once granted permanent registration, carriers continue to be 
subject to all Federal Motor Carrier Safety Regulations (FMCSRs) and 
operating requirements. Although the FMCSA makes every effort to help 
carriers comply with the FMCSRs and operating requirements, when 
necessary, the agency may apply a full range of enforcement actions to 
non-complying carriers. These include, but are not limited to, 
compliance reviews, civil penalties, and revocation of registration for 
serious safety violations.
    On December 9, 1999, the President signed into law the Motor 
Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat. 
1748) (MCSIA). Section 205 of MCSIA, which amended 49 U.S.C. 13902 by 
creating subsection (e), requires the agency to assess penalties for 
failure to comply with motor carrier registration requirements under 49 
U.S.C. 13902. Specifically, if a motor carrier fails to register its 
operations or operates beyond the scope of its registration, the 
carrier would be subject to certain enforcement penalties. If, upon 
inspection or investigation, it is determined that a motor vehicle 
providing transportation requiring registration is operating without 
the carrier having registered with the agency or if that vehicle is 
being operated beyond the scope of such registration, the vehicle will 
not be allowed to continue to operate and will be placed out-of-
service. The violating motor carrier may be subject to additional 
enforcement penalties. This interim final rule sets forth implementing 
regulations for section 205 of MCSIA.

State Enforcement of Registration Requirements

    Although FMCSA officials routinely conduct vehicle inspections at a 
carrier's place of business, agency employees are not authorized to 
stop commercial motor vehicles along the nation's highways to subject 
them to inspection. Instead, Federal officials partner with State 
personnel who are responsible for enforcing highway safety to compel 
selected commercial motor vehicles and their operators to undergo 
roadside inspections. Enforcement of the provisions in this interim 
final rule depends largely upon the ability to detect violators ``in 
the act'' along our nation's highways, and we will continue to rely 
largely upon assistance from State enforcement personnel.
    The FMCSA administers a grant-in-aid program, the Motor Carrier 
Safety Assistance Program (MCSAP), as an incentive for State 
enforcement of motor carrier safety regulations. The MCSAP was first 
authorized in the Surface Transportation Assistance Act of 1982 
(STAA)(Pub. L. 97-424, 96 Stat. 2079, 2154), reauthorized in the 
Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat. 
3207, 3207-186), in the Intermodal Surface Transportation Efficiency 
Act of 1991 (ISTEA) (49 U.S.C. 31101-31104, as amended), and again in 
the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L. 
105-178, 112 Stat. 107). The original authorization contained certain 
eligibility requirements for financial assistance, including agreement 
to adopt and enforce safety regulations compatible with the FMCSRs and 
HMRs. The regulatory compatibility requirement remains today and 
ensures a permanent and consistent enforcement and safety presence 
throughout the nation. This interim final rule will make enforcement of 
the registration requirements a condition for continued eligibility for 
MCSAP funds.
    Section 207 of the MCSIA amended 49 U.S.C. 31102(b)(1) by inserting 
new subparagraph (R), adding as a requirement of MCSAP participation, 
the ``cooperation'' of the States in the enforcement of registration 
requirements under 49 U.S.C. 13902 and the financial responsibility 
requirements of the Department. Subsequently, on March 21, 2000, the 
FMCSA revised the regulations for MCSAP participation (65 FR 15102). 
Those regulations required the States to enforce the registration and 
financial responsibility requirements.
    All States are required, as a condition of receiving MCSAP funding 
(49 CFR 350.201), to adopt the FMCSRs

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contained in 49 CFR parts 390-397, as applicable. Adoption of the 
changes to 49 CFR 350.201(t), added the registration and insurance 
requirements found in 49 CFR parts 365 and 387. In a June 2001 policy 
statement, FMCSA guidance to the States interpreted the term 
``cooperation,'' as used in section 207 of MCSIA, to merely require 
State enforcement to the extent each State's legislature authorized 
enforcement of the Federal registration and insurance requirements. The 
States could confirm their cooperation by certifying (in their MCSAP 
commercial vehicle safety plan) the following: ``(t)he State of XXX 
will cooperate with the FMCSA, to the extent permissible by State law, 
in the enforcement of Federal requirements pertaining to registration 
and financial responsibility.'' In order to restrict commercial highway 
transportation to those entities having the appropriate operating 
authority and possessing adequate insurance, we are now broadening our 
interpretation of the term ``cooperation'' found in section 207 of the 
MCSIA to specifically include placing out of service any vehicles 
discovered operating without 13902 registration or operating beyond the 
scope of their registration. As to the financial responsibility 
requirements in 49 CFR 350.201(t), the States must now take enforcement 
by assessing appropriate State penalties. We believe this expansion of 
our June 2001 policy statement is necessary in light of the heightened 
security environment in which we all live. Our previous policy 
statement could allow unregistered or improperly registered vehicles to 
travel our nation's highways unchecked. Given FMCSA's mission of 
ensuring safe transportation, it is incumbent upon the agency to close 
this potential loophole.
    The FMCSA has also included 49 CFR part 365 (Rules Governing 
Applications for Operating Authority) to 49 CFR 350.201(t) as a 
condition of MCSAP funding. States are expected to notify the FMCSA 
when they have information on the fitness of an applicant for 
authority.

Regulatory Change

    We believe that the registration requirements in this IFR are 
important to ensure that carriers are apprised of and compliant with 
applicable motor carrier safety standards.
    We are adding new Sec. 392.9a to require that a motor vehicle 
providing transportation requiring registration under 49 U.S.C. 13902 
may not be operated unless the carrier has complied with registration 
requirements. Nor may a driver operate a motor vehicle providing 
transportation that requires section 13902 registration beyond the 
scope of that registration. For example, a motor carrier must register 
with the FMCSA to transport property in interstate commerce for hire. 
If Carrier A fails to register pursuant to section 13902, but is later 
discovered hauling appliances in a commercial motor vehicle for a 
department store from one State to another, under Sec. 392.9a(b) 
Carrier A's CMV would be placed out of service and Carrier A may be 
subject to additional penalties. In another scenario, Carrier B 
registers to transport property for hire, but is later discovered 
operating a commuter bus service for a municipality using 49-passenger 
buses, the bus would be subject to an out-of-service order and the 
carrier may be subject to penalties.
    In the second scenario in the preceding paragraph, Carrier B 
applied for and obtained authority to transport property for-hire. 
Carrier B met the registration requirements and his/her drivers are 
qualified to operate a truck, but Carrier B's drivers may know nothing 
at all about passenger transportation safety and are not qualified to 
transport passengers. Because Carrier B is registered with FMCSA, the 
chances of detecting Carrier B's illegal operations are much greater.
    But in scenario one where Carrier A decides to go into business 
hauling furniture for a department store but fails to register with 
FMCSA, the agency would not even be aware of its existence unless one 
of the carrier's vehicles were stopped for roadside inspection. Because 
the carrier is not registered with the agency at all, that carrier 
would not be targeted for a compliance review. Roadside inspections 
would be the only means of detecting errant Carrier A.
    Any vehicles found to be operating in violation of Sec. 392.9a 
would be placed out-of-service, immediately prohibiting the driver from 
further operation. Furthermore, the motor carrier may be subject to 
further penalties under 49 U.S.C. 14901. The motor carrier would be 
entitled to a hearing to review the out-of-service order pursuant to 5 
U.S.C. 554 within 10 days of the issuance of the order.
    This rulemaking will become effective thirty days after publication 
because of the need to close a potential loophole that may be used to 
circumvent FMCSA's safety regulations. Given the heightened security 
environment, the time needed to complete notice and comment procedures 
prior to issuing an enforceable standard lengthens the time that 
individuals could exploit this loophole. FMCSA has asked for comment 
with publication of the rule, and will consider all comments received 
shortly thereafter. If changes to the rule are necessary to address 
this issue more effectively, or in a less burdensome but equally 
effective manner, FMCSA will not hesitate to make such changes. The 
Administrator for FMCSA believes that the circumstances described 
herein warrant quick action, and finds that notice and public comment 
under 5 U.S.C. 553(b) are impracticable and contrary to the public 
interest.

Rulemaking Analyses and Notices

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

    The FMCSA has determined that this action is a significant 
regulatory action within the meaning of Executive Order 12866. 
Accordingly, the Office of Management and Budget reviewed this 
regulatory action. In addition, this action is significant within the 
meaning of Department of Transportation regulatory policies and 
procedures (44 FR 11034, February 26, 1979). It is anticipated that the 
economic impact of the revisions in this rulemaking will be minimal.

Economic Analysis

    This rulemaking has been reviewed by the Office of Management and 
Budget. It is significant within the meaning of the Executive Order and 
DOT's policies and procedures. Because of the potential security threat 
and the need to act quickly, no regulatory analysis or evaluation 
accompanies this rule. This rule may, however, impose some costs. FMCSA 
will assess the costs and benefits of the rule as soon as possible and 
will include the analysis in the docket of this matter.

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 601-
612), as amended by the Small Business Regulatory Enforcement and 
Fairness Act (Pub. L. 104-121), requires Federal agencies to analyze 
the impact of rulemakings on small entities, unless the Agency 
certifies that the rule will not have a significant economic impact on 
a substantial number of small entities.
    Therefore, FMCSA certifies that this rule will not have a 
significant impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 
1532) requires each agency to assess the effects of its regulatory 
actions on State, local, and tribal governments and the

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private sector. Any agency promulgating a final rule likely to result 
in a Federal mandate requiring expenditures by a State, local, or 
tribal government or by the private sector of $100 million or more in 
any one year must prepare a written statement incorporating various 
assessments, estimates, and descriptions that are delineated in the 
Act. FMCSA has determined that the changes proposed in this rulemaking 
would not have an impact of $100 million or more in any one year.

Executive Order 13045 (Protection of Children)

    Executive Order 13045, ``Protection of Children from Environmental 
Health Risks and Safety Risks'' (April 23, 1997, 62 FR 19885), requires 
that agencies issuing ``economically significant'' rules that also 
concern an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children must include 
an evaluation of the environmental health and safety effects of the 
regulation on children. Section 5 of Executive Order 13045 directs an 
agency to submit for a ``covered regulatory action'' an evaluation of 
its environmental health or safety effects on children. The agency has 
determined that this rule is not a ``covered regulatory action'' as 
defined under Executive Order 13045.
    This rule is not economically significant under Executive Order 
12866 because the FMCSA has determined that the changes in this 
rulemaking would not have an impact of $100 million or more in any one 
year. This rule also does not concern an environmental health risk or 
safety risk that would disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule would not effect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism Assessment)

    This action has been analyzed in accordance with the principles and 
criteria contained in Executive Order 13132, dated August 4, 1999 (64 
FR 43255, August 10, 1999). FMCSA has determined that this action would 
not have significant Federalism implications or limit the policymaking 
discretion of the States.

Executive Order 12372 (Intergovernmental Review)

    Catalog of Federal Domestic Assistance Program Number 20.217, Motor 
Carrier Safety. The regulations implementing Executive Order 12372 
regarding intergovernmental consultation on Federal programs and 
activities do not apply to this program.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3501-
3520], Federal agencies must determine whether requirements contained 
in rulemakings are subject to information collection provisions of the 
PRA and, if they are, obtain approval from the Office of Management and 
Budget for each collection of information they conduct, sponsor or 
require through regulations. FMCSA has determined that this regulation 
does not constitute an information collection within the scope or 
meaning of the PRA.

National Environmental Policy Act

    The Federal Motor Carrier Safety Administration (FMCSA) is a new 
administration within the Department of Transportation (DOT). The FMCSA 
analyzed this rule under the National Environmental Policy Act of 1969 
(42 U.S.C. 4321 et seq.) (NEPA), the Council on Environmental Quality 
Regulations Implementing NEPA (40 CFR 1500-1508), and DOT Order 
5610.1C, Procedures for Considering Environmental Impacts. This rule 
would be categorically excluded from further analysis and documentation 
in an environmental assessment or environmental impact statement under 
paragraph 4.c.(3) of DOT's Order as a project amendment that does not 
significantly alter the environmental impact of the action. This rule 
would merely amend the Federal registration program to allow States and 
State law enforcement personnel to enforce the Federal registration 
requirements (49 U.S.C. 13902) by placing motor carriers out-of-service 
along our nation's highways for operating beyond the scope of their 
registration authority.

List of Subjects

49 CFR Part 350

    Grant programs--transportation, Highway safety, Motor carriers.

49 CFR Part 392

    Highway safety, motor carriers.

    For the reasons stated in the preamble, the FMCSA amends title 49, 
Code of Federal Regulations, Chapter III, as follows:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM 
[AMENDED]

    1. Revise the authority citation for part 350 to read as follows:

    Authority: 49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.


    2. Amend Sec. 350.201 to revise paragraph (t) to read as follows:


Sec. 350.201  What conditions must a State meet to qualify for Basic 
Program Funds?

    * * *
    (t)(1) Enforce registration requirements under 49 U.S.C. 13902, and 
49 CFR parts 356 and 365, and 49 CFR 392.9a by placing out-of-service 
the vehicle discovered to be operating without registration or beyond 
the scope of its registration.
    (2) Enforce financial responsibility requirements under 49 U.S.C. 
13906, 31138, 31139, and 49 CFR part 387.
* * * * *

PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES [AMENDED]

    3. Revise the authority citation for part 392 to read as follows:

    Authority: 49 U.S.C. 13902, 31136, 31502; and 49 CFR 1.73.


    4. Add a new Sec. 392.9a to read as follows:


Sec. 392.9a  Operating authority.

    (a) Registration required. A motor vehicle providing transportation 
requiring registration under 49 U.S.C. 13902 may not be operated 
without the required registration or operated beyond the scope of its 
registration.
    (b) Penalties. Every motor vehicle providing transportation 
requiring registration under 49 U.S.C. 13902 shall be ordered out-of-
service if determined to be operating without registration or beyond 
the scope of its registration. In addition, the motor carrier may be 
subject to penalties in accordance with 49 U.S.C. 14901.
    (c) Administrative Review. Upon the issuance of the out-of-service 
order under paragraph (b) of this section, the driver shall comply 
immediately with such order. Opportunity for review shall be provided 
in accordance with section 554 of title 5, United States Code not later 
than 10 days after issuance of such order.

    Issued on: August 22, 2002.
Joseph M. Clapp,
Administrator.
[FR Doc. 02-21917 Filed 8-27-02; 8:45 am]
BILLING CODE 4910-EX-P