[Federal Register Volume 68, Number 144 (Monday, July 28, 2003)]
[Notices]
[Pages 44378-44379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-19150]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2003-15642]


Safety Auditor Certification; Extension of Statutory Compliance 
Date

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

ACTION: Notice of extension of statutory compliance date.

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SUMMARY: The FMCSA is required by law to ensure that all safety audits 
or compliance reviews of motor carriers conducted after December 31, 
2002 be conducted by duly certified personnel. The Secretary of 
Transportation is authorized to extend this deadline until December 31, 
2003 by notifying Congress that implementation of this requirement 
cannot be achieved by the initial deadline, and stating the reasons. By 
this document the FMCSA is notifying the public that on July 17, 2003 
the Secretary of Transportation gave notice to Congress that he is 
extending the deadline to December 31, 2003. The extension is necessary 
because of a recent Federal court decision that set aside the FMCSA 
rule establishing procedures for certifying personnel to conduct safety 
reviews.

DATES: The Secretary of Transportation has extended the statutory 
deadline for 49 U.S.C. 31148(b) until December 31, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Robert Schultz, Jr., Office of Bus 
& Truck Standards and Operations, (202) 366-4001, Federal Motor Carrier 
Safety Administration, 400 Seventh Street, SW., Room 8301, Washington, 
DC 20590-0001. Office hours are from 7:45 a.m. to 4:15 p.m. EST, Monday 
through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

    On December 9, 1999, the President signed the Motor Carrier Safety 
Improvement Act of 1999 (MCSIA)(Pub. L. 106-159). Section 210 of MCSIA 
requires that all new entrant motor carriers, both foreign and 
domestic, receive safety audits within 18 months of commencing 
operations in interstate or foreign commerce. Section 211 of MCSIA 
requires the Secretary of Transportation to complete a rulemaking to 
improve training and provide for the certification of motor carrier 
safety auditors to conduct safety inspection audits and reviews. The 
legislation also gives the Secretary oversight responsibility for these 
motor carrier auditors and investigators, including the authority to 
decertify them.
    As enacted by section 211(a), 49 U.S.C. 31148(b) and (c) read as 
follows:

    (b) CERTIFIED INSPECTION AUDIT REQUIREMENT.--Not later than one 
year after completion of the Rulemaking required by subsection (a), 
any safety inspection audit or review required by, or based on the 
authority of, this chapter or chapter 5, 313, or 315 of this title 
and performed after December 31, 2002, shall be conducted by--
    (1) a motor carrier safety auditor certified under subsection 
(a); or
    (2) a Federal or State employee who, on the date of the 
enactment of this section, was qualified to perform such an audit or 
review.
    (c) EXTENSION.--If the Secretary determines that subsection (b) 
cannot be implemented within the 1-year period established by that 
subsection and notifies the Committee on Commerce, Science, and 
Transportation of the Senate and the Committee on Transportation and 
Infrastructure of the House of Representatives of the determination 
and the reasons therefor, the Secretary may extend the deadline for 
compliance with subsection (b) by not more than 12 months.

    On March 19, 2002, the FMCSA published an Interim Final Rule 
implementing section 211 (the auditor certification rule) by 
establishing three types of certification: (1) Certification to conduct 
safety audits, (2) certification to conduct compliance reviews, and (3) 
certification to conduct roadside inspections (67 FR 12776). This rule 
was primarily designed to respond to the increase in audits 
necessitated by the new entrant requirements of Section 210 of MCSIA. 
However, publication of the rule was one of several conditions imposed 
in the 2002 DOT Appropriations Act (Pub. L. 107-87), which had to be 
met before FMCSA could begin processing applications to allow Mexico-
domiciled motor carriers to operate in the United States beyond the 
commercial zones along the United States-Mexico border in accordance 
with the North American Free Trade Agreement (NAFTA). Another condition 
imposed by the Appropriations Act was FMCSA publication of a rule 
implementing section 210 of MCSIA. An Interim Final Rule establishing 
procedures for increasing FMCSA's safety scrutiny of new entrant motor 
carriers, including standards and procedures regarding the safety 
audits mandated by section 210, was published on May 13, 2002 (67 FR 
31978) and became effective on January 1, 2003.
    FMCSA hired and trained over 200 people to perform compliance 
reviews, safety audits, and vehicle inspections. However, most audits 
of new entrant motor carriers are to be undertaken by State employees 
under the Motor Carrier Safety Assistance Program (MCSAP).
    On January 16, 2003, the U.S. Court of Appeals for the Ninth 
Circuit set aside the auditor certification rule and two other FMCSA 
rules which established application and safety monitoring procedures 
for Mexico-domiciled motor carriers seeking authority to operate in the 
United States. The Court's ruling was based on its conclusion that 
FMCSA failed to comply with statutory environmental impact analysis 
requirements in developing these regulations. Public Citizen v. Dept. 
of Transportation, 316 F.3d 1002. The Department of Transportation 
filed a petition for rehearing with the Ninth Circuit, but this 
petition was denied on April 10, 2003. Consequently, the Court's 
mandate setting aside the three rules took effect on April 18, 2003.
    As noted above, section 210 of the MCSIA requires that all new 
entrant motor carriers, both foreign and domestic, receive safety 
audits within 18 months of commencing operations in interstate or 
foreign commerce. As a result of the Ninth Circuit decision in Public 
Citizen, FMCSA and its State partners will not be able to hire and 
train additional personnel to conduct motor carrier safety audits, 
reviews or inspections, thereby impairing their ability to comply with 
the statutory mandate regarding new entrant motor carriers. The 
consequent reduction of

[[Page 44379]]

Federal and State oversight activities will likely have an adverse 
impact on public safety.
    For the reasons stated above, the Secretary of Transportation has 
determined that it is necessary to extend the compliance date 
established by 49 U.S.C. 31148(b) to December 31, 2003, so that FMCSA 
and its State partners can continue to carry out their statutory 
responsibilities while the Department of Transportation acts to comply 
with applicable environmental laws before implementing procedures for 
certification of safety auditors. This extension is retroactive to 
January 1, 2003.
    On July 17, 2003, the Secretary of Transportation sent letters to 
the Senate Committee on Commerce, Science, and Transportation and the 
House of Representatives' Committee on Transportation and 
Infrastructure notifying them that he had extended the deadline for 
complying with the requirements of 49 U.S.C. 31148(b) to December 31, 
2003.

    Issued on: July 22, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-19150 Filed 7-25-03; 8:45 am]
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