[Federal Register Volume 68, Number 191 (Thursday, October 2, 2003)]
[Notices]
[Pages 56863-56865]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-24979]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2001-11060]


Availability of an Environmental Assessment for the Certification 
of Safety Auditors, Safety Investigators, and Safety Inspectors Interim 
Final Rule

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

ACTION: Notice of availability; request for comments.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) 
announces the availability of the Environmental Assessment for the 
Certification of Safety Auditors, Safety Investigators, and Safety 
Inspectors interim final rule (67 FR 12776, Mar. 19, 2002) (commonly 
referred to as the ``Certification'' rule). This announcement is 
pursuant to the National Environmental Policy Act of 1969 (NEPA), as 
amended; the Council on Environmental Quality Regulations implementing 
NEPA (40 CFR parts 1500-1508); and U.S. Department of Transportation 
(DOT) Order 5610.1C, Procedures for Considering Environmental Impacts, 
dated September 18, 1979, as amended July 13, 1982, and July 30, 1985. 
The Certification rule was one of three interim final rules set aside 
by the U.S. Court of Appeals for the Ninth Circuit on January 16, 2003. 
The court concluded that FMCSA failed to comply with statutory 
environmental impact analysis requirements in developing these rules. 
Accordingly, FMCSA has analyzed the potential environmental impacts 
from implementation of the Certification rule. The agency has concluded 
that implementing the rule's requirements would have no adverse 
environmental consequences and in fact would be likely to have a 
positive, if minimal, impact on the affected environment.

DATES: Submit comments on or before November 3, 2003.

ADDRESSES: You may submit comments identified by DOT DMS Docket Number 
FMCSA-2001-11060 by any of the following methods:
    [sbull] Web site: http://dms.dot.gov. Follow the instructions for 
submitting comments on the DOT electronic docket site.
    [sbull] Fax: 1-202-493-2251.
    [sbull] Mail: Docket Management Facility, U.S. Department of 
Transportation, 400 Seventh Street, SW, Nassif Building, Room PL-401, 
Washington, DC 20590-0001.
    [sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif 
Building, 400 Seventh Street, SW, Washington, DC, between 9 a.m. and 5 
p.m., Monday through Friday, except Federal holidays.
    [sbull] Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting 
comments.
    Instructions: All submissions must include the agency name and 
docket number for this notice. Note that all comments received will be 
posted without change to http://dms.dot.gov including any personal 
information provided. Please see the Privacy Act heading for further 
information.
    Docket: For access to the docket to read background documents or 
comments received, go to http://dms.dot.gov and/or Room PL-401 on the 
plaza level of the Nassif Building, 400 Seventh Street, SW, Washington, 
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal 
holidays.
    Privacy Act: Anyone may search the electronic form of all comments 
received into any of DOT's dockets by the name of the individual 
submitting the comment (or of the person signing the comment, if 
submitted on behalf of an association, business, labor union, or other 
entity). You may review DOT's complete Privacy Act Statement in the 
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also 
available at http://dms.dot.gov.

FOR FURTHER INFORMATION CONTACT: Mary Pat Woodman, Chief of the 
Enforcement and Compliance Division (MC-ECE), (202) 366-9699, FMCSA, 
400 Seventh Street, SW., Washington, DC 20590.

SUPPLEMENTARY INFORMATION:

Background

    Sec. 210 of the Motor Carrier Safety Improvement Act (MCSIA) of 
1999 (Pub. L. 106-159, 113 Stat. 1748) directs that all motor carriers 
(both foreign and domestic) granted new operating authority must 
undergo a safety audit within 18 months of commencing operations in 
interstate commerce in the United States [49 U.S.C. 31144(b)]. Sec. 211 
of the MCSIA requires that any safety audit conducted after December 
31, 2002, be performed by a certified motor carrier safety auditor [49 
U.S.C. 31148(b)]. The legislation also gives the Secretary of 
Transportation (Secretary) authority to decertify a safety auditor and 
extend the December 31, 2002, compliance deadline [49 U.S.C. 31148 (e) 
and (c)]. On July 17, 2003, the Secretary notified the Senate Committee

[[Page 56864]]

on Commerce, Science, and Transportation and the House of 
Representatives Committee on Transportation and Infrastructure that he 
had extended the compliance deadline to December 31, 2003. FMCSA 
notified the public of this extension (68 FR 44378, Jul. 28, 2003).
    As required by Sec. 211, the agency published an interim final 
rule, Certification of Safety Auditors, Safety Investigators, and 
Safety Inspectors, establishing procedures to certify and maintain 
certification for safety auditors, inspectors, and investigators (67 FR 
12776, Mar. 19, 2002). This rule amends 49 CFR parts 350 and 385 to 
provide for three types of certification: (1) Certification to conduct 
safety audits, (2) certification to conduct compliance reviews, and (3) 
certification to conduct roadside vehicle and driver inspections. FMCSA 
determined the Certification rule was not subject to environmental 
analysis due to a categorical exclusion from statutory requirements. 
The rule took effect on July 17, 2002.
    The 2002 DOT Appropriations Act (Pub. L. 107-87) stipulated that 
FMCSA could not begin processing applications to allow Mexico-domiciled 
motor carriers to operate in the United States beyond the border 
commercial zones in accordance with the North American Free Trade 
Agreement (NAFTA) until FMCSA published, among other things, a number 
of regulations including the Certification rule (a condition again 
imposed in the 2003 Appropriations Act). Another precondition for 
processing such applications was publication of a rule implementing 
Sec. 210 of the MCSIA. An interim final rule, New Entrant Safety 
Assurance Process (New Entrant rule) establishing procedures to 
heighten the agency's safety scrutiny of new entrant motor carriers, 
including standards and procedures regarding the safety audits mandated 
by Sec. 210, was published on May 13, 2002 (67 FR 31978, May 13, 2002) 
and became effective on January 1, 2003.
    On January 16, 2003, the U.S. Court of Appeals for the Ninth 
Circuit set aside the Certification rule and two other FMCSA rules that 
established application and safety monitoring procedures for Mexico-
domiciled motor carriers seeking authority to operate in the United 
States. The court concluded that FMCSA failed to comply with statutory 
environmental impact analysis requirements in developing these 
regulations. Public Citizen v. DOT, 316 F.3d 1002 (9th Cir. 2003). 
Specifically with respect to the Certification rule, the court 
determined that because the rule did not fall within any of the 
existing DOT categorical exclusions, FMCSA acted arbitrarily and 
capriciously by failing to at least conduct an Environmental Assessment 
(EA) of the rule. DOT's petition for rehearing was denied on April 10, 
2003. Consequently, the court's mandate setting aside the three rules 
took effect on April 18, 2003. On September 8, 2003, the United States 
sought Supreme Court review of the Ninth Circuit decision as to the 
application and safety monitoring rules, but not the Certification 
rule.
    On August 26, 2003, FMCSA issued a notice to advise the public that 
a Programmatic Environmental Impact Statement (PEIS) will be prepared 
pursuant to NEPA and a General Conformity Evaluation will be made 
pursuant to the Clean Air Act before promulgating the regulations 
establishing the application and safety monitoring procedures for 
Mexico-domiciled carriers (68 FR 51322). The Notice stated that FMCSA 
was preparing an EA for the Certification rule and that a supplemental 
Notice of Intent would be issued if, based on the EA, FMCSA determined 
that preparation of a PEIS is required.

Summary of Environmental Assessment

    FMCSA limited its analysis to those environmental resources--land 
use, traffic and congestion, air quality, noise, and public safety and 
health--that could be affected by implementation of the safety auditor 
certification procedures. The certification process preserves and 
formalizes training requirements and practices that have been in effect 
within the DOT system for more than 20 years. Implementing the proposed 
procedures would not require FMCSA to engage in any new activities. 
Although the New Entrant rule created a new kind of review--the 
``safety audit'' of new entrant carriers--the training required for 
safety auditor certification is merely a simplified, less comprehensive 
version of that required to conduct compliance reviews and roadside 
vehicle and driver inspections.
    For each type of certification, initial and refresher training 
would take place at existing classroom facilities. Audits, inspections 
and compliance reviews necessary to obtain and maintain certification 
would be conducted at carrier facilities, weigh stations and other 
inspection facilities, or by use of existing mobile equipment. No 
additional facilities or roadways would need to be built. Further, as 
the certification program would not, in and of itself, increase the 
number of inspections performed, commercial vehicular traffic 
congestion and associated air emissions would not increase. Because the 
Certification rule would not affect construction activity or commercial 
vehicular traffic, it would not have an adverse impact on air quality 
and noise levels or increase existing land use.
    Generally, an action that involves operational changes or 
construction of facilities would have potential impacts on a range of 
environmental characteristics, including visual, cultural, and 
aesthetic resources, geology and soils, water resources and hydrology, 
biological and ecological resources, energy consumption, 
socioeconomics, and environmental justice. However, because the 
employee certification process would not increase commercial vehicular 
traffic, alter established safety oversight activities, or require 
construction of new facilities, it would have no measurable impact in 
these conventional analysis areas.
    As required by DOT Order 5610.1C and the Council on Environmental 
Quality's regulations implementing NEPA, FMCSA also analyzed the 
potential environmental impact of failure to implement the proposed 
certification procedures (the No Action Alternative). Under this 
scenario, the agency would withdraw the Certification rule and make no 
changes to the safety fitness regulations at 49 CFR part 385. In 
addition, we considered two alternative actions: (1) restricting the 
grandfather period for the certification program to those safety 
employees who were fully trained before December 9, 1999, and (2) 
codifying the training requirements. We judged all three alternatives 
to be inadequate.
    Under the No Action Alternative, the inability to hire certified 
safety employees could diminish the government's ability to identify 
unsafe motor carriers, vehicles, and drivers. This would adversely 
impact public safety and be likely to hinder FMCSA's achievement of 
continued reductions in commercial vehicle-related accidents and 
fatalities. Limiting the grandfather period would impose significant 
costs and burdens on FMCSA as well as on State and local governments, 
while producing little if any safety benefit. Codification of the 
training requirements would make the certification program less 
flexible by hampering the agency's ability to quickly modify course 
content in response to regulatory or circumstantial changes.
    The certification alternative is intended to promote more accurate 
compliance reviews, safety audits, and inspections by ensuring that 
these

[[Page 56865]]

activities are conducted by highly trained personnel certified by FMCSA 
or by State or local governments. To the extent that implementation of 
the certification process increases the government's ability to 
identify potentially unsafe carriers and vehicles and remove them from 
the Nation's roads, it would have positive, if minimal, effects on air 
quality, noise levels, and public safety. Accordingly, FMCSA 
anticipates that implementation of the Certification rule would produce 
a net positive impact on the quality of the human environment. The 
agency's full Environmental Assessment is available in this docket.
    As noted in the Background section of this document, the 2002 and 
2003 DOT Appropriations Acts made issuance of the Certification rule a 
precondition to FMCSA's expenditure of funds on the processing of 
Mexico-domiciled motor carrier applications for authority to operate 
beyond the border commercial zones. Nevertheless, the EA does not 
attempt to analyze the prospective environmental impacts of Mexico-
domiciled carriers operating in the United States. This is because the 
environmental analysis of such operations, in the form of a PEIS and 
General Conformity Evaluation required by the Ninth Circuit decision, 
is already being undertaken with respect to two other rules discussed 
above (establishing application and safety monitoring procedures for 
Mexico-domiciled carriers) that are preconditions to the processing of 
applications of Mexican carriers for beyond-the-border-commercial-zones 
operating authority. Unless the Ninth Circuit decision is reversed or 
the relevant terms of the DOT Appropriations Acts are not extended, 
FMCSA cannot process applications of Mexico-domiciled motor carriers 
seeking authority to operate beyond the border commercial zones until 
the PEIS and General Conformity Evaluation have been completed and 
considered by FMCSA. Thus, no operations of Mexican-domiciled carriers 
could take place beyond the border commercial zones as a result of 
issuance of the Certification rule.
    Additionally, given the nature of the Certification rule, the rule 
standing alone would have no impact on Mexican truck and bus operations 
beyond the border commercial zones. For example, implementation of the 
rule would not affect either the number of Mexico-domiciled vehicles 
entering the United States or the number and duration of safety 
inspections of these vehicles. Indeed, unlike the application and 
safety monitoring rules, which apply solely to Mexico-domiciled motor 
carriers, the only connection between the Certification rule and the 
operation of Mexican carriers beyond the border commercial zones is the 
contingency Congress created when it made issuance of the rule one of 
the preconditions to the processing of these carriers' applications for 
operating authority. For these reasons, FMCSA believes that the scope 
of the Environmental Assessment for the Certification rule is 
appropriate.

    Issued on: September 26, 2003.
John H. Hill,
Assistant Administrator/Chief Safety Officer.
[FR Doc. 03-24979 Filed 10-1-03; 8:45 am]
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