[Federal Register Volume 68, Number 246 (Tuesday, December 23, 2003)]
[Notices]
[Pages 74287-74289]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-31597]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

[Docket No. FMCSA-2003-15642 and FMCSA-2001-11060]


Safety Auditor Certification; Notice of Statutory Compliance Date

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

ACTION: Notice of statutory compliance date.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) gives 
notice that after December 31, 2003, all safety inspections, audits, 
and compliance reviews will be conducted by FMCSA or State employees 
certified under the Certification of Safety Auditors, Safety 
Investigators, and Safety Inspectors interim final rule (67 FR 12776, 
Mar. 19, 2002; 67 FR 41196, Jun. 17, 2002) (commonly referred to as the 
``Certification rule'') or qualified under the grandfather provisions 
of 49 U.S.C. 31148(b). 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, on the grounds that FMCSA failed to comply 
with statutory environmental impact analysis requirements in developing 
these regulations. On July 28, 2003, FMCSA notified the public (68 FR 
44378) that, as authorized by Sec. 211 of the Motor Carrier Safety 
Improvement Act of 1999 (MCSIA), the Secretary of Transportation 
(Secretary) had extended by 12 months the agency's December 31, 2002, 
statutory deadline for compliance with the safety certification 
requirements. The extension of the statutory compliance deadline 
provided FMCSA the necessary time to comply with the court's mandate by 
preparing an Environmental Assessment (EA) for the Certification rule. 
The EA concluded that implementation of the Certification rule would 
have no adverse environmental consequences and, in fact, would likely 
have a positive, if minimal, impact on the affected environment. On 
October 2, 2003, the agency issued a notice announcing the EA's 
availability in the docket and requesting public comment (68 FR 56863). 
The agency received no comments on the EA. Following the close of the 
public comment period, FMCSA prepared a Finding of No Significant 
Impact document for the Certification rule. The Finding of No 
Significant Impact is attached to the EA in the docket. Compliance with 
the statutory certification requirement by FMCSA and its State partners 
will assure the agency's continued fulfillment of its statutory 
responsibilities to reduce crashes, injuries, and fatalities involving 
large trucks and buses.

DATES: Compliance with 49 U.S.C. 31148(b) begins January 1, 2004.

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(c)(1)]. Sec. 
211 of the MCSIA requires that any safety audit conducted after 
December 31, 2002, be performed by: (1) A motor carrier safety auditor 
certified under rules established for that purpose, or (2) a Federal or 
State employee qualified to perform such an audit or review at the time 
MCSIA was enacted [49 U.S.C. 31148(b)]. The legislation gives the 
Secretary oversight responsibility for these motor carrier safety 
auditors and investigators, including the authority to decertify them 
[49 U.S.C. 31148(e)]. In addition, section 31148(c) authorizes the 
Secretary to extend (by no more than 12 months) the December 31, 2002, 
deadline for compliance with the safety certification requirements of 
MCSIA if it is determined that the rulemaking required by the statute 
cannot be timely implemented.
    As required by Sec. 211, FMCSA published an interim final rule 
entitled ``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; 67 FR 41196, Jun. 17, 2002). The rule amends 49 
CFR parts 350 and 385 to provide for three types of certification, as 
follows: (1) Certification to conduct safety audits, (2) certification 
to conduct compliance reviews, and (3) certification to conduct 
roadside vehicle and driver inspections. The Certification rule took 
effect on July 17, 2002 (67 FR 41196).
    The rule requires certification not only for Federal employees 
performing safety audits, inspections, and compliance reviews but also 
for State and local employees conducting these activities under the 
Motor Carrier Safety Assistance Program (MCSAP). States must certify 
that safety employees meet minimal Federal standards as a condition of 
their continued participation in the MCSAP. Federal and MCSAP employees 
qualified to perform compliance reviews on December 9, 1999, are 
grandfathered by 49 U.S.C. 31148(b)(2) and are not required to be 
certified under the rule. The Certification rule extended this 
grandfather period to include personnel who were fully trained and 
performing

[[Page 74288]]

compliance reviews or roadside inspections before June 17, 2002. Both 
grandfathered employees and those certified under the rule will be 
required to maintain their certification by completing a minimum number 
of safety review activities each year.
    The 2002 Department of Transportation (DOT) Appropriations Act 
(Pub. L. 107-87, 115 Stat. 833, December 18, 2001) had stipulated that 
FMCSA could not expend funds on processing applications of Mexico-
domiciled motor carriers for authority to operate in the United States 
beyond the border commercial zones, as recommended by an international 
arbitration panel convened pursuant to the North American Free Trade 
Agreement, until FMCSA published, among other things, a number of 
regulations including the Certification rule. (This condition was again 
imposed in the 2003 DOT Appropriations Act [Pub. L. 108-7, 117 Stat. 
11, February 20, 2003]). Another precondition for processing such 
applications was publication of a rule implementing Sec. 210 of the 
MCSIA. An interim final rule entitled ``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) 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 
establishing application and safety monitoring procedures for Mexico-
domiciled motor carriers seeking authority to operate beyond the border 
commercial zones. The court concluded that FMCSA failed to comply with 
statutory environmental impact analysis requirements in developing 
these regulations. See 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 conduct an EA for 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 July 17, 2003, the Secretary notified the Senate Committee on 
Commerce, Science, and Transportation and the House of Representatives 
Committee on Transportation and Infrastructure that, in accordance with 
his authority under 49 U.S.C. 31148(c), he had extended the deadline 
for compliance with the statutory certification requirements to 
December 31, 2003, while FMCSA acted to comply with the court's 
mandate. FMCSA notified the public of this extension (68 FR 44378, Jul. 
28, 2003).
    On August 26, 2003, FMCSA issued a notice to advise the public that 
a Programmatic Environmental Impact Statement (PEIS) would be prepared 
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42 
U.S.C. 4321, et seq.), as amended, and a General Conformity Evaluation 
would be made pursuant to the Clean Air Act [42 U.S.C. 7506(c)(1)], 
before promulgation of the rules on application and safety monitoring 
procedures for Mexico-domiciled carriers seeking U.S. operating 
authority (68 FR 51322, Aug. 26, 2003). The notice also announced 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, the 
agency determined that preparation of an Environmental Impact Statement 
(EIS) is required.
    On September 8, 2003, the United States sought Supreme Court review 
of the Ninth Circuit decision that invalidated the rules concerning 
Mexico-domiciled carriers, but did not seek review on the exclusion 
issues that pertained solely to the Certification rule. The following 
month, FMCSA issued a notice announcing the availability of an EA for 
the Certification rule and requesting public comment (68 FR 56863, Oct. 
2, 2003). On December 15, 2003, the Supreme Court granted the 
Government's petition for review.

Environmental Assessment and Finding of No Significant Impact

    The EA noted that the Certification rule is intended to promote 
more accurate safety audits, inspections, and compliance reviews by 
ensuring that these activities are conducted by highly trained 
personnel certified by FMCSA or by State or local governments. The 
procedures established under the rule preserve and formalize training 
requirements and practices that have been in effect within the DOT 
system for more than 20 years. Implementation of these procedures will 
not require FMCSA to engage in any new activities or to construct new 
inspection facilities, classroom facilities, or roadways; nor will the 
certification program, in and of itself, increase the number of safety 
inspections performed. 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.
    Therefore, the Certification rule will neither increase commercial 
vehicular traffic congestion, noise levels, and land use nor adversely 
impact air quality. Likewise, the certification process will have no 
measurable impact in conventional analysis areas such as visual, 
cultural, and aesthetic resources, geology and soils, water resources 
and hydrology, biological and ecological resources, energy consumption, 
socioeconomics, and environmental justice.
    As required by DOT Order 5610.1C, Procedures for Considering 
Environmental Impacts, September 18, 1979, as amended on July 13, 1982, 
and July 30, 1985, and the Council on Environmental Quality's 
regulations implementing NEPA, the EA 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, FMCSA considered 
two alternative actions. As detailed in the EA, we judged all three 
alternatives to be inadequate.
    The EA concluded that insofar as the certification program 
increases the government's ability to identify potentially unsafe 
carriers and vehicles and remove them from the Nation's roads, it will 
have positive, if minimal, effects on air quality, noise levels, and 
public safety. Accordingly, FMCSA anticipates that the Certification 
rule will produce a net positive impact on the affected environment, 
and has determined that an EIS for the rule is not required. The agency 
received no public comments on the EA.
    As noted in the Background section of this document, the FY 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 
in the United States 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 PEIS and General Conformity Evaluation required by 
the Ninth Circuit Court decision are already being undertaken with 
respect to the two other rules discussed in the Background section that 
are preconditions to the processing of

[[Page 74289]]

applications of Mexican carriers for operating authority beyond the 
border commercial zones. Unless the Ninth Circuit Court 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 a PEIS and General Conformity Evaluation have been 
completed and considered by FMCSA. Implementing the Certification rule 
will not affect that prohibition.
    Further, the Certification rule standing alone will have no impact 
on prospective Mexican truck and bus operations beyond the border 
commercial zones. For example, it will 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.
    As noted above, FMCSA received no public comments in response to 
the EA. Following the close of the public comment period, the agency 
prepared a Finding of No Significant Impact document for the 
Certification rule. FMCSA's full Environmental Assessment and Finding 
of No Significant Impact are available in the docket.
    In accordance with the agency's statutory obligation under 49 
U.S.C. 31148(b), FMCSA and its State partners will comply with the 
statutory certification requirement effective January 1, 2004.

    Issued on: December 18, 2003.
Annette M. Sandberg,
Administrator.
[FR Doc. 03-31597 Filed 12-22-03; 8:45 am]
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