[Federal Register Volume 76, Number 207 (Wednesday, October 26, 2011)]
[Proposed Rules]
[Pages 66506-66595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-26958]
[[Page 66505]]
Vol. 76
Wednesday,
No. 207
October 26, 2011
Part IV
Department of Transportation
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Federal Motor Carrier Safety Administration
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49 CFR Parts 360, 365, 366, et al.
Unified Registration System; Proposed Rule
Federal Register / Vol. 76 , No. 207 / Wednesday, October 26, 2011 /
Proposed Rules
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 360, 365, 366, 368, 385, 387, 390 and 392
[Docket No. FMCSA-97-2349]
RIN 2126-AA22
Unified Registration System
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Supplemental Notice of Proposed Rulemaking (SNPRM).
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SUMMARY: The FMCSA amends its proposal regarding establishment of the
Unified Registration System (URS) required by the ICC Termination Act
of 1995 (ICCTA) and originally announced in a May 19, 2005 notice of
proposed rulemaking (NPRM). URS is the replacement system for several
existing registration and information systems for motor carriers,
property brokers, and freight forwarders under FMCSA jurisdiction. This
SNPRM responds to comments to the 2005 URS NPRM, incorporates new
proposals implementing requirements imposed by final rules published
after the 2005 URS NPRM, and includes new proposals to implement
certain provisions of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The Agency
believes the proposed URS would improve the registration process for
motor carriers, property brokers, freight forwarders and other entities
that register with FMCSA.
DATES: You must submit comments on or before December 27, 2011.
ADDRESSES: You may submit comments identified by Federal Docket
Management System (FDMS) Docket ID Number FMCSA-97-2349 by any of the
following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the online instructions for submitting
comments.
Mail: Docket Management Facility: U.S. Department of
Transportation, 1200 New Jersey Avenue, SE., West Building Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET,
Monday through Friday, except Federal holidays.
Fax: 202-493-2251.
Instructions: For detailed instructions on submitting comments and
additional information on the rulemaking process, see the Public
Participation heading under the Supplementary Information caption of
this document. Note that all comments received will be posted without
change to http://www.regulations.gov, including any personal
information provided. Please see the Privacy Act heading below.
Privacy Act: Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review the US
Department of Transportation's DOT Privacy Act System of Records Notice
for the DOT Federal Docket Management System published in the Federal
Register on January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov or the street
address listed above. Follow the online instructions for accessing the
dockets.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Transportation
Specialist, Driver and Carrier Operations Division, (202) 366-2722, or
by e-mail at: [email protected]. Business hours are from 8 a.m.
to 4:30 p.m. ET, Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Public Participation
The Federal eRulemaking Portal (http://www.regulations.gov) is
available 24 hours each day, 365 days each year. You can get electronic
submission and retrieval help and guidelines under the ``How to Use
This Site'' menu option.
Comments received after the comment closing date will be included
in the docket and we will consider late comments to the extent
practicable. The FMCSA may, however, issue a final rule at any time
after the close of the comment period.
Preamble Table of Contents
The following is an outline of the preamble.
I. Legal Basis for the Rulemaking
II. Regulatory History
A. Advance Notice of Proposed Rulemaking
B. Notice of Proposed Rulemaking
III. Discussion of the Supplemental Notice of Proposed Rulemaking
A. New Regulatory Drafting Strategy
B. The Proposal
IV. Regulatory Evaluation of the URS SNPRM: Summary of Benefits and
Costs
V. Appendix to the Preamble--Proposed Form MCSA-1 and Instructions
VI. Rulemaking Analyses and Notices
I. Legal Basis for the Rulemaking
This rulemaking is in response to sec. 103 of the ICC Termination
Act of 1995 (ICCTA) [Pub. L. 104-88, 109 Stat. 888, December 29, 1995]
and title IV of the Safe, Accountable, Flexible, and Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU) [Pub. L.
109-59, 119 Stat. 1714, August 10, 2005]. This rulemaking action is
consistent with the requirements of 31 U.S.C. 9701 and 49 U.S.C.
31136(a).
In the ICCTA, Congress enacted 49 U.S.C. 13908 directing the
Secretary of Transportation (the Secretary), in cooperation with the
States, and after notice and opportunity for public comment, to issue
regulations to replace the existing information systems listed below
with a single, online, Federal system:
1. The current Department of Transportation (USDOT) identification
number system;
2. The single State registration system (SSRS) under [49 U.S.C.]
section 14504;
3. The registration system contained in 49 U.S.C. chapter 139; and
4. The financial responsibility information system under section
13906.
Congress also directed the Secretary to consider whether to
integrate the requirements of 49 U.S.C. 13304 regarding service of
process in court proceedings into the new system. Congress specified
that the new URS should serve as a clearinghouse and depository of
information on, and identification of, all foreign and domestic motor
carriers, property brokers, freight forwarders, and others required to
register with the USDOT as well as information on safety fitness and
compliance with required levels of financial responsibility. The
language of 49 U.S.C. 13908(c) also authorized the Secretary to
``establish, under section 9701 of title 31 [of the U.S. Code], a fee
system for registration and filing evidence of financial responsibility
under the new system under subsection (a). Fees collected under the fee
system shall cover the costs of operating and upgrading the
registration system, including all personnel costs associated with the
system.''
The Unified Carrier Registration Act of 2005, subtitle C of title
IV of SAFETEA-LU, modified the requirements for a unified registration
system for motor carriers contained in ICCTA. In particular, SAFETEA-LU
changed the scope of the Secretary's responsibility for the development
of a registration system to replace the SSRS. It also modified the
requirement that
[[Page 66507]]
fees collected under the new system cover the costs of operating and
upgrading the registration system and placed limitations on certain
fees that the Agency could charge. Section 4304 of SAFETEA-LU
reiterated the congressional requirement for a single, Federal, online
system to replace the four individual systems identified under 49
U.S.C. 13908 and also mandated inclusion of the service of process
agent systems under 49 U.S.C. 503 and 13304. SAFETEA-LU refers to the
Federal online replacement system as the Unified Carrier Registration
System. The Agency considers the URS announced in the May 2005 NPRM to
be the Unified Carrier Registration System.\1\
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\1\ The Unified Carrier Registration (UCR) Agreement mandated
under section 4305 of SAFETEA-LU (which enacted 49 U.S.C. 14504a) is
the replacement for the Single State Registration System authorized
by former 49 U.S.C. 14504. Registration and payment of fees under
the UCR Agreement are not the responsibility of FMCSA. However, as
provided by 49 U.S.C. 13908(b), information about the compliance of
entities subject to the UCR Agreement will be available through the
URS when that system has been developed.
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Congress also repealed the statutory provisions of 49 U.S.C. 14504
governing SSRS. (SAFETEA-LU section 4305(a)).\2\ The legislative
history indicates that the purpose of the UCR Plan and Agreement is
both to ``replace the existing outdated system [SSRS]'' for
registration of interstate motor carrier entities with the States and
to ``ensure that States don't lose current revenues derived from SSRS''
(S. Rep. 109-120, at 2 (2005)).\3\
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\2\ This repeal became effective on January 1, 2007, in
accordance with section 4305(a).
\3\ The Senate bill's provisions were enacted ``with
modifications.'' H. Conf. Rep. No. 109-203, at 1020 (2005).
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The statute provided for a 15-member Board of Directors for the UCR
Plan and Agreement (Board) appointed by the Secretary of
Transportation. The statute specified that the Board should consist of
Federal, State and motor carrier industry representatives. The
establishment of the board was announced in the Federal Register on May
12, 2006 (71 FR 27777). The Board's duties include issuing rules and
regulations, recommending fee levels for the system, and designating a
revenue depository for the new system. On Friday, August 24, 2007, the
Agency published a final rule establishing initial fees for 2007 and a
fee bracket structure for the Unified Carrier Registration Agreement in
the Federal Register (72 FR 48585). The FMCSA subsequently adjusted the
UCR Agreement fees and fee bracket structure in a final rule dated
April 27, 2010 (74 FR 21993).
SAFETEA-LU also amended several definitions that affect the
coverage of the URS, amended certain financial responsibility
requirements, and eliminated the Agency's authority to collect certain
fees. Today's proposal incorporates new requirements imposed by
SAFETEA-LU.
Title 31 U.S.C. 9701 (the so-called ``User Fee Statute'')
establishes general authority for agencies to ``charge for a service or
thing of value provided by the Agency.'' Accordingly, FMCSA proposes to
charge fees under URS that will enable the Agency to recoup costs
associated with processing registration applications and administrative
filings. Title 49 U.S.C. 13908(d) requires establishment of
registration fees that, as nearly as possible, cover the costs of
processing the registration, provided the fees do not exceed $300.
Section 206 of the Motor Carrier Safety Act of 1984 [Pub. L. 98-
554, title II, 98 Stat. 2832, October 30, 1985, 49 U.S.C. App. 2505,
recodified at 49 U.S.C. 31136] requires the Secretary to prescribe
regulations on commercial motor vehicle safety. The regulations shall
prescribe minimum safety standards for commercial motor vehicles
(CMVs). At a minimum, the regulations shall ensure that: (1) CMVs are
maintained, equipped, loaded, and operated safely; (2) the
responsibilities imposed on operators of CMVs do not impair their
ability to operate the vehicles safely; (3) the physical conditions of
operators of CMVs is adequate to enable them to operate the vehicles
safely; and (4) the operation of CMVs does not have a deleterious
effect on the physical condition of the operators (49 U.S.C. 31136(a)).
This SNPRM is intended to streamline the existing registration
process and ensure that FMCSA can more efficiently track motor
carriers, freight forwarders, brokers, intermodal equipment providers
and cargo tank facilities. It implements the mandate under sec.
31136(a)(1) that FMCSA's regulations ensure that CMVs are maintained
and operated safely. This proposal imposes no operational
responsibilities on drivers. Therefore, this proposed regulation would
not impair a driver's ability to operate vehicles safely (sec.
31136(a)(2)), would not impact the physical condition of drivers (sec.
31136(a)(3)), and would not have a deleterious effect on the physical
condition of drivers (sec. 31136(a)(4)).
II. Regulatory History
A. Advance Notice of Proposed Rulemaking
In response to the ICCTA mandate to develop a unified registration
system, the Federal Highway Administration (FMCSA's predecessor agency)
issued an advance notice of proposed rulemaking (ANPRM) announcing
plans to develop a single, online, Federal information system (61 FR
43816, August 26, 1996). The ANPRM solicited specific detailed
information from the public about each of the systems to be replaced by
the URS, the conceptual design of the URS, uses and users of the
information to be collected, and potential costs.
B. Notice of Proposed Rulemaking
On May 19, 2005, FMCSA published an NPRM describing a proposal to
merge all of the prescribed information systems except SSRS into a
unified, online, Federal system (70 FR 28990) as set forth below.
1. Entities To Be Included in the Unified Registration System
The Agency proposed to include the following entities in the
Unified Registration system: (1) All for-hire motor carriers (including
those exempt from the 49 U.S.C. chapter 139 registration requirements),
(2) private motor carriers, (3) property brokers, and (4) freight
forwarders.
In the NPRM, the Agency proposed to exclude the following entities
from the Unified Registration System: (1) Mexico-domiciled motor
carriers applying to engage in long-haul operations, (2) applicants for
hazardous materials safety permits to haul certain hazardous materials
under 49 CFR part 385, subpart E, and (3) cargo tank facilities
required to register with FMCSA pursuant to 49 CFR 107.502 and 49
U.S.C. 5108. The Agency requested comment on whether the unique
conditions of these entities warranted retaining separate registration
procedures and application forms or whether they also should be
included in the Unified Registration System. The Agency also solicited
information on how to most effectively integrate the systems under
consideration for merger with URS.
2. Proposed User Fees
The Agency proposed user fees as set forth in the Table to Sec.
360.401 below:
[[Page 66508]]
Table to Sec. 360.401--Unified Registration Schedule of Fees
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Registration You must pay FMCSA
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If you:
(a) Are subject to the registration $200.
requirements under Sec. 360.3 and
are requesting a new application to
operate in interstate commerce.
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Other Services
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If you file a:
(b) Biennial update of registration... No cost.
(c) Request for change of name, No cost.
address, or form of business.
(d) Request for cancellation of No cost.
registration.
(e) Request for registration $100.
reinstatement.
(f) Designation of process agent...... $10.
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Additionally, the Agency proposed fees for record searching,
reviewing, copying, certifying, and related services under Sec.
360.419(a) through (d) as follows:
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Description Fee
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(a) Certificate of the Director, Office of $12.
Information Management, as to the
authenticity of documents.
(b) Service involved in locating records to $21 per hour.
be certified and determining their
authenticity, including incidental
clerical and administrative work.
(c) Photocopies of public documents........ $.80 per letter- or legal-
size page; $5 minimum.
(d) Search and copying services requiring
automated data processing services (ADP),
as follows:
(1) Professional staff time to fulfill $50 per hour.
an ADP request.
(2) Computer searches.................. Current rate for computer
service as determined by
the Office of Information
Management (MC-RIS).
(3) Printing........................... Paper--$.10 per page with a
$1 minimum; Electronic
media--Agency's cost.
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3. Financial Responsibility
Bodily Injury and Property Damage Insurance (BI & PD) Filing
Requirement
Existing regulations prescribe minimum levels of financial
responsibility for certain motor carrier classifications. However, only
for-hire motor carriers, brokers and certain freight forwarders \4\
that are subject to the chapter 139 registration requirements must file
evidence of financial responsibility with FMCSA as a precondition to
receiving and holding chapter 139 operating authority. Evidence of
financial responsibility may be in the form of certificates of
insurance, surety bonds, proof of qualifications as a self-insurer,
endorsements, or trust agreements, as appropriate.
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\4\ Household goods freight forwarders performing transfer,
collection and delivery service.
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The Agency proposed to retain the financial responsibility filing
requirement for these entities and to extend them to for-hire motor
carriers exempt from the chapter 139 registration requirements
(hereafter referred to as ``exempt for-hire motor carriers'') and to
private interstate motor carriers transporting hazardous materials. All
such carriers already are required by statute (49 U.S.C. 31138 and
31139) and regulations (49 CFR part 387) to obtain and maintain BI & PD
insurance. The NPRM merely proposed to require the filing of evidence
of financial responsibility with FMCSA. The Agency believes the
proposed filing requirement would provide the public with assurances
that all for-hire motor carriers and private carriers transporting
hazardous materials in interstate commerce have the financial means to
compensate members of the public for injuries or damages caused by
negligence. These filings also would increase public accessibility to
insurance information and would enable FMCSA to more effectively track
insurance cancellations.
The filing requirement would not be extended to motor carriers
transporting hazardous materials in intrastate commerce; these carriers
would continue to maintain evidence of financial responsibility at
their principal place of business.
Web-Based Filings by Insurers, Surety Companies, and Financial
Institutions
The Agency proposed to require financial responsibility service
providers such as insurers to file evidence of financial responsibility
using a Web-based (HTML) format. These filings would include evidence
of certificates of insurance, proof of qualification to self-insure,
endorsements, surety bonds, trust-fund agreements, household goods
(HHG) cargo insurance, and notices of cancellations. The FMCSA believes
Web-based filings will promote efficiencies for FMCSA, insurers,
sureties, financial institutions, and the public. The NPRM solicited
comment on whether the proposed mandatory Web-based filing would be a
significant burden on small insurers, surety companies, and financial
institutions. Also, the Agency invited comments, ideas and suggestions
regarding a potential phase-in approach as opposed to immediate
mandatory on-line filing.
Cargo Insurance. The NPRM included a proposal to eliminate the
cargo insurance requirement for all entities except HHG motor carriers
and HHG
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freight forwarders. Current 49 CFR 387.303(c) and 387.405(a) require
non-exempt for-hire motor common carriers of property and freight
forwarders, respectively, to maintain cargo insurance in the amount of
$5,000 per vehicle, and $10,000 per occurrence, and to file evidence of
coverage with FMCSA. Contract carriers are not subject to a requirement
to maintain or file evidence of cargo insurance. However, SAFETEA-LU
prohibited FMCSA from registering motor carriers as ``common'' or
``contract'' carriers, effective January 1, 2007. The Agency proposed
to eliminate the cargo insurance requirement for all entities except
HHG carriers and HHG freight forwarders based on the assumption that
most for-hire motor carriers and freight forwarders carry cargo
insurance well above FMCSA limits because their shipper clients
generally require it as a condition of doing business. However the
Agency deemed it in the public interest to retain the cargo insurance
requirement for household goods motor carriers and household goods
freight forwarders.
Self-Insurance Program. The Agency proposed several changes to the
self-insurance program, including changes to the fees charged to
applicants seeking approval to self-insure and changes to the fees
associated with annual and quarterly reporting by entities approved to
self-insure. The Agency announced that it would continue its practice
of processing and approving each motor carrier self-insurance
application on a case-by-case basis.
Insurance Filing Fees. The Agency proposed insurance filing fees as
set forth in the Table to Sec. 360.415(b):
Table to Sec. 360.415(b)--Insurance Filing Fees
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(1) Financial responsibility service provider filing $10
evidence of minimum level of insurance, surety bond,
or trust fund agreement..............................
(2) Qualification as a self-insurer for bodily injury, 4,200
property damage, or environmental restoration........
(3) Qualification as a self-insurer for cargo 420
insurance............................................
(4) Quarterly self-insurance monitoring filing........ 500
(5) Annual self-insurance monitoring filing........... (\1\)
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\1\ No cost.
4. Process Agent Designations
Current regulations under 49 CFR part 366 require only motor
carriers and brokers that are subject to the 49 U.S.C. chapter 139
commercial registration requirements to designate a process agent.\5\
Today exempt for-hire motor carriers are not subject to FMCSA
commercial regulations and thus are not required to designate a process
agent. Heretofore, the Agency has not exercised the authority granted
under 49 U.S.C. 503 to require private carriers to designate a process
agent. However, in the May 2005 NPRM, the Agency proposed to require
new and existing private and exempt for-hire motor carriers and freight
forwarders to make process agent designation filings with FMCSA.
Additionally, private motor carriers that operate in the United States
in the course of transportation between points in a foreign country
would need to file process agent designations with the Agency.
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\5\ Although part 366 does not require process agent
designations by freight forwarders, designation of agents for
service of process by freight forwarders in connection with Agency
proceedings is required under 49 U.S.C. 13303. Consequently, the
Agency has required such designations by freight forwarders
notwithstanding the omission of freight forwarders in part 366. The
Agency proposed to add freight forwarders to part 366 to fully
implement section 13303.
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The FMCSA concluded that extending the requirement to all URS
registrants would enhance the public's ability to serve legal process
on responsible individuals when seeking compensation for losses
resulting from a crash involving a commercial motor vehicle operated by
private or exempt for-hire motor carriers. Moreover, FMCSA would be
better able to identify among all of its regulated entities the
appropriate individual(s) upon whom to serve notices for enforcement
actions.
5. Timeframes for Evidence of Financial Responsibility and Process
Agent Designation Filings
The Agency proposed to increase to 90 days the maximum time allowed
for an applicant to submit evidence of financial responsibility and to
designate a process agent (Sec. Sec. 360.13(a)(6) \6\ and (a)(7)).
Failure to make these filings within 90 days of applying for
registration would result in dismissal of the application.
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\6\ The May 2005 NPRM incorrectly included two paragraphs (a)(6)
under Sec. 360.13. This statement cross references the second
paragraph (a)(6).
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Existing regulations already provide up to 80 days for these
filings. Today agents must file evidence of financial responsibility on
behalf of non-exempt for-hire motor carriers, brokers and freight
forwarders within 20 days of the date of publication of the application
in the FMCSA Register (published on the Agency Web site at http://www.fmcsa.dot.gov). If the filings are not completed within the 20-day
period, FMCSA issues a dismissal warning and may grant a one-time 60-
day grace period.
The Agency stated that a 90-day filing period for these
administrative filings more realistically reflects the actual time
necessary to arrange insurance and process agent coverage. The NPRM
included a proposal that administrative filings be completed within 90
days after submission of the Form MCSA-1, with no further extensions.
If either the insurance or process agent filings were not completed
within this 90-day period, the Agency would dismiss the registration
request.
In addition, the Agency proposed a 180-day grace period for the
newly required administrative filings by existing exempt for-hire and
covered private motor carriers.
6. USDOT Number as the Sole Identifier for Entities Registered in URS
At the time of publication of the NPRM, FMCSA registration systems
used five identification numbers: (1) The USDOT Number; (2) the MC
Number (assigned to non-exempt for-hire motor carriers and brokers
registering under 49 U.S.C. chapter 139); (3) the FF Number (assigned
to freight forwarders); (4) the MX Number (assigned to Mexico-domiciled
motor carriers operating exclusively within municipalities in the
United States on the U.S.-Mexico international border and the
commercial zones of such municipalities; and (5) cargo tank facility
(CT) numbers. The Agency proposed to discontinue issuing MC, MX, and FF
Number designations and to phase out the use of current MC, MX, and FF
Numbers within 2 years of the compliance date for the URS final rule.
Thus, the USDOT Number would become the sole identification number for
all entities registered by FMCSA (except for cargo tank facilities).
This unique USDOT Number would be
[[Page 66510]]
displayed on the side of the vehicle pursuant to the CMV marking
requirement in 49 CFR 390.21. The FMCSA would issue a USDOT Number with
a distinctive suffix to any Mexico-domiciled motor carrier granted
registration.
7. The Application Process
The Agency proposed under subpart A to part 360 a new multi-step
application process and procedures for issuance of a USDOT Number under
which an applicant would begin the registration process by filing a
completed Form MCSA-1 and paying the registration fee. If the Agency
accepted the Form MCSA-1 application, it would assign a temporary
number to track the application through the registration process and
enable registrants to make required administrative filings. The
applicant's financial responsibility agent would use the tracking
number to file evidence of compliance with FMCSA financial
responsibility requirements under 49 CFR part 387; the motor carrier or
its agent also would use the temporary tracking number to make a
process agent designation filing. An applicant would be prohibited from
commencing operations until the Agency issues a USDOT Number and grants
registration.
Upon receipt of the USDOT Number, a motor carrier applicant would
be considered a ``new entrant'' and placed under the appropriate safety
monitoring program. A U.S.- or Canada-domiciled motor carrier would be
subject to the FMCSA New Entrant Safety Assurance Program described
under 49 CFR part 385, subpart D, which includes a safety audit. The
provisional registration is the new entrant registration defined at 49
CFR 385.3. New entrant registration for these motor carriers would
become permanent only if the applicant satisfactorily completed the New
Entrant Safety Assurance Program. Similarly, to receive permanent
registration, a Mexico-domiciled new entrant operating exclusively
within the border commercial zones would be required to satisfactorily
complete the safety monitoring program and safety audit described under
49 CFR part 385, subpart B. Motor carrier operating authority obtained
under the procedures in 49 CFR part 365 would not become permanent
until an applicant operating commercial motor vehicles satisfactorily
completed the New Entrant Safety Assurance Program.
Special procedures for chapter 139 brokers, freight forwarders or motor
carriers
Current registration procedures in 49 U.S.C. 13902 allow anyone to
oppose a request for permanent operating authority by non-exempt for-
hire motor carriers, property brokers, and freight forwarders, provided
the protest is based upon the applicant's willingness and ability to
comply with: (1) The registration procedures; (2) applicable DOT
regulations, including the Federal Motor Carrier Safety Regulations
(FMCSRs), Hazardous Materials Regulations (HMRs) and regulations
implementing the Americans with Disabilities Act (ADA); (3) the safety
fitness standards; and/or (4) the financial responsibility
requirements. The proposed unified registration system would continue
to allow protests for applications covered under section 13902, but
would not extend the right of protest to applications for registration
filed by private motor carriers or exempt for-hire motor carriers.
In accordance with section 13902, FMCSA must notify the public when
applications for authority are under consideration and provide an
opportunity for protest. Upon acceptance of an application for
registration from a chapter 139 entity, FMCSA would publish notice of
the application in the FMCSA Register, initiating a 10-day protest
period. The Agency would issue the applicant a temporary tracking
number for the purpose of completing administrative filings and
tracking the application through the registration process. If the
Agency denied an application based on a protest, the application would
be dismissed, and the registration fee would not be refunded.
If the application of a broker or freight forwarder is not
protested or if insufficient grounds exist to deny a protested
application, the Agency would issue a USDOT Number and grant permanent
registration. Brokers and freight forwarders are not subject to a
safety monitoring program.
If the application of a non-exempt motor carrier is not protested,
or if insufficient grounds exist to deny a protested application, FMCSA
would grant the applicant new entrant registration subject to
completion of applicable administrative requirements. New entrant
registration would become permanent registration only after
satisfactory completion of the New Entrant Safety Assurance Program.
8. The Proposed Application Form (MCSA-1)
The FMCSA proposed to combine the data elements now captured on
several different licensing, registration and certification forms into
a single, new application form called the Form MCSA-1. For those
entities subject to URS, Form MCSA-1 would replace the following forms:
(1) Motor Carrier Identification Report (Application for USDOT Number),
Form MCS-150; (2) Application for Motor Property Carrier and Broker
Authority, Form OP-1; (3) Application for Motor Passenger Carrier
Authority, Form OP-1(P); (4) Application for Freight Forwarder
Authority, Form OP-1(FF); and (5) Application for Mexican Certificate
of Registration for Foreign Motor Carriers and Foreign Motor Private
Carriers Under 49 U.S.C. 13902, Form OP-2. The NPRM also invited
comments on whether the URS should incorporate the data requirements of
three other registration processes: (1) Registration of Mexico-
domiciled motor carriers seeking to operate between points in Mexico
and points in the United States beyond the border commercial zones,
Form OP-1(MX); (2) registration of entities requesting a hazardous
materials safety permit, Form MCS-150B; and (3) registration of cargo
tank facilities (which is requested in a letter submitted by the
applicant to FMCSA).
9. Electronic Filing Requirement With Paper Filing Option
The FMCSA proposed an online electronic application process with a
paper filing option. The Agency requested comments on the benefits or
hardships applicants might experience from a mandatory online
electronic filing requirement. The Agency also asked whether it should
immediately require online electronic filing or provide a phase-in
period. The FMCSA noted several factors in support of an online filing
requirement:
There is widespread public access to computers and the
Internet;
In 2005 when the Agency published the NPRM, more than 70
percent of U.S. motor carriers had Internet access, with Internet
access clearly increasing;
Automated error-checking would result in more accurate
information about the applicant;
Online filing would allow USDOT Numbers to be issued
faster, substantially reducing the current 2- to 4-week paper-based
processing time for registration applications; and
Online filing would be more cost-effective for FMCSA than
manually processing applications.
[[Page 66511]]
10. Biennial Update Requirement
The FMCSA proposed to require biennial updates using proposed Form
MCSA-1 by all motor carriers, brokers and freight forwarders. Passenger
and property motor carriers, freight forwarders, and property brokers
would have to file regular updates to their registration information
every 24 months. At the time the URS NPRM was published (May 19, 2005),
existing Sec. 390.19 required only safety registration information
filed on Form MCS-150 or Form MCS-150-B to be updated. There was no
requirement for non-exempt for-hire motor carriers, property brokers,
and freight forwarders to biennially update commercial registration
information. In the May 2005 NPRM, the Agency explained that since the
Form MCSA-1 would combine safety and commercial registration for most
motor carriers, FMCSA had preliminarily concluded it is reasonable to
extend the biennial update requirement to all motor carriers subject to
FMCSA's commercial and safety jurisdiction. As a result, all motor
carriers, property brokers, and freight forwarders would need to file
biennial updates. The registration updates would provide valuable motor
carrier and fleet information and would be useful in assessing safety
performance. A motor carrier that registers its vehicles in a
Performance and Registration Information Systems Management (PRISM)
Program State would fulfill the biennial update through its annual
State re-registration requirement.
11. Transfers of Operating Authority
Existing 49 CFR part 365, subpart D, permits non-exempt for-hire
motor carriers, brokers and freight forwarders that register under
chapter 139 to merge, transfer or lease their operating authority
(indicated by an MC or FF Number), and establishes procedures for
Agency approval of these transactions. Currently, these entities are
required to file transfer applications with FMCSA and pay a $300 fee.
The Agency determined that in enacting the ICCTA, Congress repealed
pre-existing statutory authority to approve transfers of operating
authority (former 49 U.S.C. 10926). Accordingly, the Agency proposed to
discontinue regulation of transfers of operating authority and to
remove 49 CFR part 365, subpart D, governing such transfers from the
FMCSRs.\7\
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\7\ FMCSA (then part of the Federal Highway Administration)
initially proposed removal of the transfer regulations in a February
13, 1998 NPRM (63 FR 7362). On May 16, 2001, FMCSA published a
notice in the Federal Register (66 FR 27059) announcing the
withdrawal of the February 1998 NPRM with the intention of
addressing the transfer issue in the URS rulemaking.
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The FMCSA proposed to issue only a USDOT Number as an indicator of
operating authority. Issuance of MC, MX, and FF Numbers would be
discontinued. Unlike chapter 139 certificates and permits, which have
traditionally been considered transferable motor carrier assets, a
USDOT Number is a unique identifier used to monitor a carrier's safety
performance. As such, the USDOT Number never has been subject to
transfer.
Under the proposal, the Agency would permit retention of an
existing USDOT Number in a situation where an entity changed its legal
name, form of business, or address, provided that there was no change
in the ownership, management, or control of the entity. Thus, the USDOT
Number could be retained following a change in the legal name of a sole
proprietorship, corporation, or partnership; a change in the trade name
or assumed name of an entity; and a change in the form of a business,
such as the incorporation of a partnership or sole proprietorship. The
Agency proposed that all entities requesting a change in legal name,
form of business, or address be required to fill out a revised Form
MCSA-1 within 20 days of the precipitating change with a certification
that there had been no change in the ownership, management, or control
of the entity holding the USDOT Number. Such a certification would have
addressed whether the change in name, form of business, or address was
associated with a transfer of the operating authority.
12. Cancellation, Reinstatement, and Deactivation of USDOT Registration
Under existing procedures, if a motor carrier, broker or freight
forwarder whose operations are authorized under 49 U.S.C. chapter 139
wishes to voluntarily cancel its operating authority, it must submit a
notarized Form OCE-46, ``Voluntary Revocation Request,'' or
electronically file its request. In the May 2005 NPRM, the Agency
proposed to replace the voluntary revocation request procedure with the
procedure now used by motor carriers requesting to discontinue use of a
USDOT Number. Motor carriers would be required to mail or
electronically submit to the Agency a cancellation request and
certification statement under proposed Sec. 360.701. Use of the Form
OCE-46 would be discontinued.
Under proposed Sec. 360.705, FMCSA would deactivate a motor
carrier's USDOT Registration if the carrier failed to comply with the
financial responsibility and process agent filing requirements.
Under proposed Sec. 360.707, a motor carrier, broker or freight
forwarder could reinstate a USDOT Registration that had been
deactivated for less than 2 years by making the necessary filings and
paying a reinstatement fee. If the USDOT Registration had been
deactivated for 2 or more years, the entity would need to request the
Agency to activate its USDOT Registration (under the previously-issued
USDOT Number) by completing the procedures in proposed subpart A to
part 360, including payment of a registration fee. A motor carrier that
sought to reinstate its USDOT Registration after 2 years of being
deactivated would be classified as a new entrant.
In setting the proposed threshold for reclassification of a carrier
as a new entrant at 2 years, the Agency sought to prevent carriers that
go in and out of business for very short periods of time from being
required to re-enter the New Entrant Safety Assurance Program. The 2-
year threshold also would parallel the existing 2-year update
requirement for motor carrier information.
13. Requirements for Special Transit Operations (Federal Transit
Administration (FTA) Grantees)
The Agency proposed to include under URS passenger carriers that
provide service funded, in whole or in part, by a grant from the FTA
under 49 U.S.C. 5307, 5310, or 5311. (49 U.S.C. 31138(e)(4)). These
motor carriers currently are exempt from Federal financial
responsibility requirements but must comply with the highest minimum
requirement imposed by any State in which they operate. The Agency
proposed to waive all fees for FTA grantees, including the registration
fee, insurance filing fee, and any fees related to the self-insurance
approval process. It also proposed amending 49 CFR part 387 to reflect
the financial responsibility requirements unique to FTA grantees.
III. Discussion of the Supplemental Notice of Proposed Rulemaking
A. New Regulatory Drafting Strategy
The Agency proposes in the SNPRM to use a different regulatory
drafting strategy than earlier proposed. The FMCSA would not at this
time attempt to combine and redraft within a single CFR part the
diverse application and program requirements as proposed in the May
2005 URS NPRM. Instead, the Agency proposes an incremental approach
that would establish a general
[[Page 66512]]
requirement under 49 CFR part 390, subpart C, for all entities under
FMCSA safety or commercial jurisdiction to obtain USDOT Registration.
USDOT Registration encompasses all registration requirements for FMCSA
regulated entities, including the identification of motor carriers and
intermodal equipment providers for safety oversight, as required under
49 U.S.C. 31144, commercial registration required under 49 U.S.C.
chapter 139, hazardous materials safety permitting required under 49
U.S.C. 5109, and cargo tank facility registration required under 49 CFR
107.502 and 49 U.S.C. 5108. Existing 49 CFR part 390, subpart C, which
includes in-depth information governing intermodal equipment providers,
would be re-designated as subpart D to part 390.
Fee schedules would remain under 49 CFR part 360, and information
regarding designation of process agents would remain under 49 CFR part
366.
Conforming amendments would be made to parts 360, 365, 366, 368,
and 385 to replace references to obsolete forms in the OP- and MCS-
series with references to proposed Form MCSA-1, the Application for
USDOT Number/Operating Authority.
The new regulatory strategy is necessary because registration
requirements vary widely among those entities regulated by FMCSA.
Although Congress directed the Secretary to combine several distinct
information systems into a new on-line replacement system, it did not
direct that there be uniform requirements for all entities under FMCSA
jurisdiction. For example, not all of the entities subject to FMCSA
safety oversight are subject to its commercial jurisdiction under 49
U.S.C. chapter 139 and thus required to obtain certificates, permits
and licenses granted to motor carriers, brokers and freight forwarders,
respectively. For this reason, the Unified Registration System would
need to accommodate these distinctions as long as they exist.
B. The Proposal
The comment period for the May 2005 URS NPRM closed on August 17,
2005. The FMCSA received a total of 60 comment submissions to the
docket from 58 entities, including State and local government agencies,
motor carriers, industry trade associations, enforcement associations,
safety advocates, and private citizens. Most comments supported
creation of a unified registration system. Because the Agency is
soliciting additional comments on modifications made to the NPRM, we
will not, at this point in the proceeding, address all comments
received. Comments will be discussed if they have resulted in changes
to the Agency's original proposal. A more detailed response to comments
received to both the NPRM and this SNPRM will be included in the
preamble to the final URS rule.
Major proposals carried over from the 2005 NPRM to this SNPRM
include the following:
The URS would combine (1) the USDOT identification number
system; (2) the Title 49, chapter 139 commercial registration system;
and (3) the 49 U.S.C. 13906 financial responsibility information system
into a new single, online system. In accordance with section 4304 of
SAFETEA-LU, the Agency also proposes inclusion of the service of
process agent designation system in accordance with 49 U.S.C. 503 and
13304.
All regulated entities would be required to update
registration information every 2 years.
All entities registered under URS would be identified by
FMCSA solely by the USDOT Number. Motor carriers could continue to use
obsolete MC Numbers for business and advertising reasons, and the
Agency would not require a motor carrier to remove the existing MC
Number from its vehicles. But the Agency encourages motor carriers to
refrain from displaying the MC Number on new or repainted CMVs once the
rule becomes final.
The Agency would no longer accept or review requests for
transfers of operating authority.
All existing private motor carriers that transport
hazardous materials in interstate commerce would be required to
maintain and file evidence of financial responsibility with the Agency.
There would be at least a 3-month moratorium on enforcement of the
filing requirement after the effective date of the rule. The moratorium
would not apply to new entrants.
1. Single State Registration System (SSRS)
Although numerous commenters addressed SSRS issues, section 4305 of
SAFETEA-LU repealed the SSRS and placed responsibility for developing
an SSRS replacement system with the Unified Carrier Registration Plan
(UCR Plan). Under Section 4305(b) of SAFETEA-LU, the UCR Plan is the
organization responsible for developing, implementing, and
administering the Unified Carrier Registration Agreement (49 U.S.C.
14504a(a)(9)) (UCR Agreement). The UCR Agreement developed by the UCR
Plan is the ``interstate agreement governing the collection and
distribution of registration and financial responsibility information
provided and fees paid by motor carriers, motor private carriers,
brokers, freight forwarders and leasing companies * * *.'' (49 U.S.C.
14504a(a)(8)).
The statute provides for a 15-member Board of Directors for the UCR
Plan and Agreement (Board) appointed by the Secretary of
Transportation, only one of whom shall be from the Department of
Transportation. The remaining Board members represent State agencies
and the motor carrier industry. The establishment of the Board was
announced in the Federal Register on May 12, 2006 (71 FR 27777).
The Board is charged with developing regulations governing the UCR
Agreement and recommends the applicable fees to the Secretary of
Transportation.\8\ The FMCSA is required by SAFETEA-LU to set the fees
within 90 days after receiving the Board's recommendation and after
notice and opportunity for public comment (49 U.S.C. 14504a(d)(7)(B)).
---------------------------------------------------------------------------
\8\ The Secretary's functions under section 14504a have been
delegated to the Administrator of the Federal Motor Carrier Safety
Administration. 49 CFR 1.73(a)(7), as amended, 71 FR 30833 (May 31,
2006).
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The FMCSA described the statutory requirements in detail in an NPRM
published on May 29, 2007 (72 FR 29472). On Friday, August 24, 2007,
the Agency published a final rule establishing initial fees for 2007
and a fee bracket structure for the Unified Carrier Registration
Agreement in the Federal Register (72 FR 48585). The FMCSA subsequently
adjusted the UCR Agreement fees and fee bracket structure in a final
rule dated April 27, 2010 (74 FR 21993).
For reasons stated in Section I of this SNPRM, development of the
replacement system for the SSRS is no longer addressed under the URS
rulemaking.
2. Entities Subject to the URS Registration Requirement
Except as noted below, the Agency proposes to require all entities
which are under FMCSA commercial or safety jurisdiction to register
under the Unified Registration System using proposed Form MCSA-1.
Section 4304 of SAFETEA-LU amended 49 U.S.C. 13908(b) to require the
Federal on-line replacement system to ``serve as a clearinghouse and
depository of information on, and identification of, all foreign and
domestic motor carriers, motor private carriers, brokers, freight
forwarders, and others required to register with the Department of
Transportation * * *.'' The FMCSA
[[Page 66513]]
interprets this statute as authorizing the inclusion of all entities
regulated by FMCSA in the Unified Registration System.
Accordingly, proposed 49 CFR 390.101 would establish a general
requirement for all regulated entities, except Mexico-domiciled motor
carriers seeking authority to operate beyond the border commercial
zones (Mexico-domiciled long-haul carriers), to obtain USDOT
Registration by filing proposed Form MCSA-1 and to provide FMCSA
biennial updates of the registration information.
Under proposed Sec. 390.102, a motor carrier that registers its
vehicles in a State that participates in the Performance and
Registration Information Systems Management program (PRISM)
alternatively could satisfy the USDOT registration and biennial update
requirements in Sec. 390.101 by electronically filing the required
information with the State Driver Licensing Agency (SDLA) according to
its policies and procedures, provided the SDLA has integrated the USDOT
registration/update capability into its vehicle registration program.
If State procedures do not allow a motor carrier to file the MCSA-1
form or to submit updates within the required 24-month window, the
motor carrier would need to complete such filings directly with FMCSA.
Proposed Sec. 390.103 would require all for-hire motor carriers
and private motor carriers that transport hazardous materials in
interstate commerce, as well as brokers and freight forwarders, to file
evidence of financial responsibility to receive USDOT Registration.
Although seven comments supported the inclusion of Mexico-domiciled
long-haul carriers in the unified system, the Agency does not propose
to include such carriers at this time. In September 2007, FMCSA began
registering Mexico-domiciled long-haul carriers under a limited-term
cross-border demonstration project in which participation by Mexican
carriers was voluntary. This program was discontinued in March 2009,
following enactment of section 136 of the Transportation, Housing and
Urban Development, and Related Agencies Appropriations Act, 2009
[Division I, title I of the Omnibus Appropriations Act, 2009, Public
Law 111-8, March 11, 2009], which prohibited the use of funds
appropriated in that Act to establish, implement, continue, promote, or
in any way permit a cross-border demonstration program. Subsequent to
enactment of section 136, Congress has not enacted any language that
prohibits funding for a new cross-border demonstration program.
Currently, FMCSA and USDOT are working closely with the Government of
Mexico to implement a new phased-in long-haul cross border trucking
program. FMCSA's experiences in implementing this new program will be
important in assessing the need to propose further changes in the
unified program at a future date. The applicable procedures governing
transportation by Mexico-domiciled motor carriers beyond the
municipalities and commercial zones along the United States-Mexico
international border remain 49 CFR part 365, subpart E, 49 CFR part
385, subpart B, and 49 CFR 390.19.
Proposed Sec. 390.105 would list, and provide cross-references to,
other governing regulations that are applicable to those requesting
USDOT Registration. For-hire and private motor carriers, brokers and
freight forwarders additionally would be required to designate a
process agent as a pre-condition for receiving USDOT Registration and
commercial operating authority, when applicable. U.S. and Canada-
domiciled motor carriers must satisfactorily complete the new entrant
safety assurance program under 49 CFR part 385, subpart D in order for
their USDOT Registration and commercial operating authority, if
applicable, to become permanent. A Mexico-domiciled motor carrier is
subject to the safety monitoring system under 49 CFR part 385, subpart
B. A non-North America-domiciled motor carrier is subject to the
requirements of 49 CFR part 385, subpart H, and must complete the
safety monitoring program under 49 CFR part 385, subpart I. An
intermodal equipment provider is subject to the requirements of 49 CFR
part 390, subpart D. A person who applies for a hazardous materials
safety permit is subject to the requirements of 49 CFR part 385,
subpart E. A cargo tank facility is subject to the requirements of 49
CFR part 107, subpart F, 49 CFR part 172, subpart H, and 49 CFR part
180.
Finally, Sec. 390.107 would direct a non-North America-domiciled
motor carrier that requests authority to conduct interstate commerce
within the United States to Sec. 385.607(a) for detailed information
about the requirement to complete a pre-authorization safety audit as a
pre-condition for receiving USDOT Registration and commercial operating
authority, if applicable.
By placing the unified registration requirement under part 390,
FMCSA State partners that participate in the Motor Carrier Safety
Assistance Program would be able to enforce the registration
requirement consistent with the compatibility requirements under 49 CFR
parts 350 and 355.
All entities required to register under URS are listed in the chart
below:
Entities Required To Register Under the Unified Registration System
----------------------------------------------------------------------------------------------------------------
Entity Description
----------------------------------------------------------------------------------------------------------------
1. A for hire or private motor carrier
domiciled in the U.S., Canada, Mexico
or a non-North American country:
a. For-hire carrier................ A person engaged in the transportation of goods or passengers for
compensation.
i. Exempt...................... A person engaged in transportation exempt from commercial regulation by
the Federal Motor Carrier Safety Administration (FMCSA) under 49
U.S.C. chapter 135. Exempt motor carriers that operate commercial
motor vehicles as defined in 49 U.S.C. 31101 are subject to the safety
regulations set forth in Part B of Subtitle VI of subchapter B of
Title 49 Code of Federal Regulations.
ii. Non-exempt................. A person engaged in transportation subject to commercial regulation by
the Federal Motor Carrier Safety Administration (FMCSA) under 49
U.S.C. chapter 139, regardless of whether such transportation is
subject to the safety regulations.
b. Private carrier................. A person who provides transportation of property or passengers, by
commercial motor vehicle, and is not a for-hire motor carrier.
2. Broker.............................. A person who, for compensation, arranges, or offers to arrange, the
transportation of property by a non-exempt for-hire motor carrier.
[[Page 66514]]
3. Freight forwarder................... A person holding itself out to the general public (other than as an
express, pipeline, rail, sleeping car, motor, or water carrier) to
provide transportation of property for compensation in interstate
commerce, and in the ordinary course of its business: (1) performs or
provides for assembling, consolidating, break-bulk, and distribution
of shipments; (2) assumes responsibility for transportation from place
of receipt to destination; and (3) uses for any part of the
transportation a carrier subject to FMCSA commercial jurisdiction.
4. Intermodal equipment provider....... A person that interchanges intermodal equipment with a motor carrier
pursuant to a written interchange agreement or has a contractual
responsibility for the maintenance of the intermodal equipment.
5. Hazardous Materials Safety Permit A motor carrier that transports in interstate or intrastate commerce
applicant. any of the hazardous materials, in the quantity indicated for each,
listed under 49 CFR 385.403.
6. Cargo tank facility................. A cargo tank and cargo tank motor vehicle manufacturer, assembler,
repairer, inspector, tester, and design certifying engineer subject to
registration requirements under 49 CFR 107.502 and 49 U.S.C. 5108.
----------------------------------------------------------------------------------------------------------------
3. Proposed User Fees
The Agency sets forth under Sec. 360.3(f) proposed registration,
insurance filing and other services fees as follows.
------------------------------------------------------------------------
Type of proceeding Fee
------------------------------------------------------------------------
Part I: Registration:
(1)....................... An application for $300.
USDOT Registration
pursuant to 49 CFR
part 390, subpart C.
(2)....................... An application for $100.
motor carrier
temporary authority
issued in response to
a national emergency
or natural disaster
and following an
emergency declaration
under Sec. 390.23
of this subchapter.
(3)....................... Biennial update of $0.
registration.
(4)....................... Request for change of $0.
name, address, or
form of business.
(5)....................... Request for $0.
cancellation of
registration.
(6)....................... Request for $10.
registration
reinstatement.
(7)....................... Designation of process $0.
agent.
Part II: Insurance:
(8)....................... A service fee for $10 per accepted
insurer, surety, or certificate,
self-insurer accepted surety bond or
certificate of other
insurance, surety instrument
bond, and other submitted in
instrument submitted lieu of a
in lieu of a broker broker surety
surety bond. bond.
(9)....................... (i) An application for [Reserved].
original
qualification as self-
insurer for bodily
injury and property
damage insurance
(BI&PD).
(ii) An application [Reserved].
for original
qualification as self-
insurer for cargo
insurance.
(iii) Fee for [Reserved].
quarterly self-
insurance monitoring
filing.
(iv) Fee for annual [Reserved].
self-insurance
monitoring filing.
------------------------------------------------------------------------
The Agency proposes a $300 registration fee for all registered
entities. Please refer to the discussion of the proposed new
registration fee under ``IV. Regulatory Evaluation of the URS SNPRM:
Summary of Benefits and Costs'' of the preamble for an explanation of
the basis for this proposal. The FMCSA proposes to charge a $10
registration reinstatement fee for those seeking to reinstate USDOT
registration as a result of failure to maintain required financial
responsibility and process agent designation filings with the Agency.
The FMCSA also proposes to change the fee currently charged for
reinstating commercial operating authority after such authority has
been revoked from $80 to $10. After completion of required filings
(financial responsibility or process agent designation) and payment of
the reinstatement fee, the information system would match up the
payment with the filings and automatically issue a reinstatement letter
at 5:00 am on the next business day. Section 360.3(f)(7) would
eliminate the existing $10 process agent designation filing fee because
section 4304 of SAFETEA-LU amended 49 U.S.C. 13908(d)(2) to prohibit
the Agency from charging a fee for filing designation of an agent for
service of process.
The Agency proposes under Sec. 360.1(e)(1) to exempt any Agency of
the Federal Government or a State government or any political
subdivision of any such government from paying the fees listed in Sec.
360.3(f) to access or retrieve URS data for its own use. Proposed
paragraph (e)(2) would exempt any registered entity within URS from
paying fees to access or retrieve its own data.
4. Financial Responsibility
Bodily Injury and Property Damage Insurance
For-hire motor carriers. Existing regulations require only non-
exempt for-hire motor carriers to file evidence of financial
responsibility with the Agency. The NPRM included a proposal to require
both exempt and non-exempt for-hire motor carriers to file evidence of
financial responsibility with the Agency as a precondition to receiving
registration. Section 4303(b) of SAFETEA-LU amended financial security
requirements under 49 U.S.C. 13906 by requiring ``all persons, other
than a motor private carrier, registered with the Secretary to provide
transportation or service as a motor
[[Page 66515]]
carrier under section 13905(b)'' to file evidence of financial
responsibility with the Agency by December 10, 2005. The Agency
believes amended 49 U.S.C. 13906 mandates financial responsibility
filings by all for-hire motor carriers. Therefore, the Agency retains
its proposal for such filings to be required as a precondition for
registration under proposed Sec. Sec. 390.103(a)(2)(i) and 387.303
Private motor carriers hauling hazardous materials. The SNPRM
retains under Sec. 390.103(a)(2)(ii) the proposal that a private motor
carrier hauling hazardous materials in interstate commerce be required
to file evidence of financial responsibility with the Agency to receive
registration. However, a private motor carrier hauling hazardous
materials in bulk in intrastate commerce would continue to be required
to meet the financial responsibility requirements under 49 CFR part 387
and maintain evidence of having met the financial responsibility
requirements at its principal place of business.\9\
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\9\ The statutory authority to require motor private carriers to
file evidence of insurance with FMCSA is codified at 49 U.S.C.
31139(c). This authority expressly applies to minimum levels of
financial responsibility established by the Secretary under 49
U.S.C. 31139(b). Section 31139(b) only applies to financial
responsibility requirements for transportation in interstate
commerce. Although the Secretary has other authority, in 49 U.S.C.
31139(d), to establish minimum levels of financial responsibility
for intrastate transportation of hazardous materials, section
31139(d) does not authorize the Secretary to require that evidence
of such insurance be filed with FMCSA.
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Private motor carriers not hauling hazardous materials. Initially,
section 4120(a)(1) of SAFETEA-LU amended 49 U.S.C. 31138(a) and
31139(b)(1) to remove the phrase ``for compensation'' from the statutes
governing financial responsibility and filing of evidence of financial
responsibility with the Agency, thereby creating a financial
responsibility requirement for private motor carriers, which the Agency
was required to implement through rulemaking. Section 4120(a)(2) stated
the Agency could require a private non-hazardous materials motor
carrier to file evidence of financial responsibility with FMCSA.
Section 305(a) of the SAFETEA-LU Technical Corrections Act of 2008
[Pub. L. 110-244, 122 Stat. 1619-1620, June 6, 2008] amended section
31138 by limiting the Secretary's authority to establish minimum levels
of financial responsibility for private motor carriers of passengers to
those carriers transporting passengers for commercial purposes.
The Agency anticipates that a proposal regarding financial
responsibility for private non-hazardous materials motor carriers would
generate major interest from the private motor carrier community and
might cause a significant delay in completing the URS rulemaking.
Consequently, FMCSA has decided to address the financial responsibility
requirements for private non-hazardous material motor carriers in a
separate rulemaking from URS.
Brokers and freight forwarders. Brokers and freight forwarders
would be required under proposed Sec. 390.103(a)(2) to file evidence
of financial responsibility as a pre-condition to registration. This
requirement includes only those freight forwarders that perform
transfer, collection and delivery service (i.e., operate a motor
vehicle). Under the existing regulations, only HHG freight forwarders
performing transfer, collection and delivery service are subject to
this requirement. These regulations were transferred without change
from the Interstate Commerce Commission following enactment of the
ICCTA, which re-regulated general commodities freight forwarders.
However, the regulations were not amended to reflect the Agency's
broadened jurisdiction. The FMCSA believes there is no basis to limit
the requirement to HHG freight forwarders and therefore proposes to
extend this requirement to all freight forwarders.
Restoration of Liability Insurance Requirements for Small Freight
Vehicles
Section 4120 of SAFETEA-LU removed FMCSA's commercial jurisdiction
over for-hire transportation of property in motor vehicles that did not
meet the definition of commercial motor vehicle (CMV) under 49 U.S.C.
31132. Consequently, the Agency removed former 49 CFR 387.303(b)(1)(i),
which established minimum public liability limits of $300,000 for
fleets that consisted only of vehicles with Gross Vehicle Weight
Ratings of under 10,000 pounds.\10\ The SAFETEA-LU Technical
Corrections Act of 2008 restored the Agency's commercial jurisdiction
over these vehicles. Accordingly, the Agency proposes to restore former
Sec. 387.303(b)(1)(i) with one minor change, revising 10,000 pounds to
10,001 pounds to be consistent with the statutory definition of CMV.
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\10\ See 72 FR 55697, 55702 (October 1, 2007).
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Cargo Insurance. Section 4303(c) of SAFETEA-LU required the Agency
to discontinue designating operating authority as common or contract
carriage beginning January 1, 2007. The FMCSA concluded that because
the cargo insurance requirement is tied to the common/contract
distinction, and because we no longer may distinguish between common
and contract carriers in the Agency's registration process or base any
regulations upon that distinction, it was important to address the
cargo insurance issue as quickly as possible. Consequently, the Agency
published a separate final rule eliminating the cargo insurance
requirement for for-hire motor carriers of property (except household
goods motor carriers) and freight forwarders (except household goods
freight forwarders), effective March 21, 2011 (75 FR 35318, June 22,
2010). The preamble to that final rule addressed the comments filed in
this proceeding regarding the NPRM's cargo insurance proposal.
Web-Based Filing by Insurers, Surety Companies, and Financial
Institutions
The Agency would require insurers, surety companies and financial
institutions to convert to a Web-based format when electronically
filing evidence of financial responsibility. (Sec. 387.323) These
filings would include evidence of surety bonds, certificates of
insurance, trust-fund agreements, proof of qualifications to self-
insure, and notices of cancellations. The Agency also proposes
conforming amendments to miscellaneous sections governing financial
responsibility requirements to convey that electronic filing would be
mandatory and not optional. (Sec. Sec. 360.3(a)(2), 387.313(b),
387.313(d), 387.323, 387.413(b), and 387.419)
Self-Insurance Program
Commenters generally supported the proposal to modify fees related
to the self-insurance program. Currently, the cost of the program
exceeds the amounts recovered from fees collected from those entities
that self-insure. The Agency believes that because entities that
qualify to self-insure receive a valuable benefit, it is reasonable and
appropriate for the fees charged to support the costs of administering
the program. However, FMCSA has determined that the proposed fees for
the self-insurance program published in the 2005 NPRM are inadequate to
recover Agency costs to administer the program, including the costs of
evaluating and monitoring the financial health of motor carriers
requesting approval to participate in the self-insurance program. The
Agency seeks to make the self-insurance program self-sustaining more
quickly and is therefore developing a separate rulemaking to address
this issue.
Editorial Changes
The Agency proposes to remove obsolete effective dates and
liability
[[Page 66516]]
information from the schedule of limits on Form MCS-90B, Endorsement
for Motor Carrier Policies of Insurance for Public Liability Under
Section 18 of the Bus Regulatory Reform Act of 1982 (Illustration I to
Sec. 387.39). Also, the Agency would correct an omission in Sec.
387.419 by adding the phrase ``notice of cancellations.'' Although the
existing section heading is ``Electronic filing of surety bonds,
certificates of insurance and cancellations'' the Agency neglected to
include information regarding cancellations.
5. Process Agent Designations
The Agency, by proposing to amend 49 CFR 366.1, retains the NPRM
proposal to include private and exempt for-hire motor carriers among
those entities that would be required to file process agent
designations with FMCSA. Private motor carriers are already mandated by
49 U.S.C. 503 to make such filings, although FMCSA has not yet
promulgated a rule requiring them to do so. Inasmuch as non-exempt for-
hire motor carriers, brokers, and freight forwarders are required to
file process agent designations under 49 U.S.C. 13303 and 13304,
approximately 90 percent of the entities subject to this rule are
required, by statute, to file such designations. Although there is no
statutory requirement that exempt for-hire carriers file process agent
designations, FMCSA believes that extending the process agent
designation requirement to include such carriers, as well as private
carriers, would enhance the public's ability to serve legal process on
responsible individuals when seeking compensation for losses resulting
from a crash involving a commercial motor vehicle operated by any motor
carrier, regardless of the carrier's regulatory status. Moreover, FMCSA
would be able to better identify the appropriate individual(s) upon
whom to serve notices for enforcement actions. The Agency invites
comments on whether the process agent filing process can be made less
costly.
The FMCSA also proposes to amend Sec. 366.1 by including freight
forwarders among those entities required to file process agent
designations with FMCSA. Under 49 U.S.C. 13303(a), a freight forwarder
providing service under FMCSA jurisdiction must designate an agent on
whom service of notices in Agency proceedings, as well as service of
Agency actions, may be made.
The FMCSA proposes to amend Sec. 366.6 to obligate those entities
that would be required to file a process agent designation to update
FMCSA of any changes to the designated process agent's information,
including name, address or contact information. Amended Sec. 366.6
would require the report to be made within 20 days of the change.
6. Timeframes for Filing Evidence of Financial Responsibility and
Process Agent Designation
As proposed in the NPRM, the Agency would require new filings of
both evidence of financial responsibility and designation of agents for
service of process to be completed within 90 days of the date that an
application is submitted, or within 90 days of the date that the notice
of application is published in the FMCSA Register if a carrier also is
seeking commercial operating authority. (Sec. 365.109) The proposed
90-day time period combines the existing 20-day initial deadline and
60-day extension period and adds 10 more days for Agency processing.
Section 4303(b) of SAFETEA-LU amended 49 U.S.C. 13906(a) to
establish December 10, 2005 as the deadline for existing exempt for-
hire motor carriers to make insurance filings with FMCSA, making it
unnecessary to propose a grace period for financial responsibility
filings. Inasmuch as section 13906(a) excluded private motor carriers
registered with the Agency under 13905(b) from the expedited financial
responsibility filing requirement, and in the interest of treating all
applicants who must file evidence of financial responsibility
equitably, the Agency will not include in proposed Sec. 390.103 a 180-
day grace period for financial responsibility filings by existing
exempt for-hire or private motor carriers. Such carriers would have to
file by the effective date of the final rule.
The SNPRM includes, in proposed Sec. 366.2(b), a 180-day grace
period for all existing private and exempt for-hire motor carriers to
file process agent designations. The grace period would be calculated
from the final rule compliance date. The FMCSA believes the 180-day
time period for existing private and exempt for-hire motor carriers to
make process agent designations is necessary for Agency IT systems to
accommodate the anticipated one-time surge in the number of filings
from this group and to provide them adequate time to comply with the
new filing requirements.
7. The Application Process
The Agency proposed in the NPRM a new multi-step application
process and procedures for issuance of a USDOT Number under which
applicants would initially be assigned temporary numbers to track the
application through the registration process and enable applicants and
their agents to make required administrative filings using the tracking
number. Under this proposal, an applicant would not receive a USDOT
Number until all necessary filings were made and would be prohibited
from commencing operations until the USDOT Number was issued.
The Owner-Operator Independent Drivers Association, Inc. (OOIDA)
and Missouri Department of Transportation (MODOT) supported the
proposed multi-phase application process. MODOT further stated that
waiting until an application has passed initial screening before
issuing a USDOT Number is a valid approach.
The American Trucking Associations, Inc. (ATA) commented that
because USDOT Numbers and provisional registrations would no longer be
issued at the time of application under the NPRM proposal, new carriers
may be delayed entry into the market. ATA urged the Agency to supply
applicants with temporary tracking numbers immediately upon receipt of
the application and provide the applicant a point of contact at FMCSA.
Greyhound stated that temporary tracking numbers would cause tremendous
confusion and the Agency should issue a tentative USDOT Number at the
beginning of the process, making the number permanent at the conclusion
of the process.
The MODOT, the Iowa Department of Transportation (IADOT), the
American Association of Motor Vehicle Administrators (AAMVA), ATA, and
the National Conference of State Transportation Specialists (NCSTS)
filed comments opposing the proposed system. MODOT commented that as a
partner in the implementation of the Federal safety fitness program it
should be able to continue to issue USDOT Numbers under PRISM. AAMVA
echoed the same concern, adding that if States are not able to issue
USDOT Numbers, their resulting inability to deliver accurate and timely
customer service will cause substantial delay for carriers wishing to
enter the market. ATA found it ``very disturbing'' that the process for
issuing USDOT Numbers and for updating MCS-150 data may conflict with
PRISM requirements in such a way as to delay the vehicle registration
of International Registration Plan (IRP) fleets. IADOT commented that
under the NPRM the States' inability to issue USDOT Numbers to
interstate carriers and registrants would have the following adverse
impacts: (1) Increased processing time for first-time motor carriers,
especially private carriers; and (2) increased costs for private and
exempt carriers to operate.
[[Page 66517]]
OOIDA urged FMCSA to ensure that States retain the ability to issue
USDOT Numbers to registering owner-operators. OOIDA suggested that a
simple separate electronic form should be used when a vehicle is
registered, and owner-operator USDOT Numbers could be maintained in the
URS system.
After careful consideration of all filed comments and discussions
with PRISM States that issue USDOT Numbers to carriers on FMCSA's
behalf, the Agency has withdrawn the proposal to issue a temporary
tracking number to applicants and issue a USDOT Number only after
applicable administrative filings have been completed. Under proposed
Sec. 390.101(c)(2), each applicant would be issued an inactive USDOT
Number. The inactive USDOT Number would be activated by the Agency only
after the applicant has filed applicable administrative filings such as
evidence of financial responsibility or a process agent designation. If
a carrier also is seeking operating authority, the USDOT Number would
remain inactive until all protests filed under 49 CFR part 365 have
been resolved and the applicant has filed applicable administrative
filings. The Agency also proposes new Sec. 392.9b to prohibit a motor
carrier with an inactive USDOT Number from operating a CMV and to
establish penalties for violating the prohibition. This change has been
made in order to allow PRISM States to continue to offer one-stop
services to carriers and to better enable PRISM States to track and
monitor carriers' safety performance. PRISM States and insurance
companies would have had to alter their IT systems and administrative
processes to accommodate the issuance of temporary tracking numbers,
which would have been costly and time-consuming. The FMCSA believes its
current proposal is the most transparent and efficient model.
The FMCSA plans to collaborate with PRISM States in developing a
unified message to notify motor carriers, at the time of registration,
that operating with an inactive USDOT Number would result in
enforcement at the Federal and State levels. During vehicle
registration, PRISM States would inform the motor carrier that its
license plates would be suspended if its application for operating
authority is denied as a result of the protest process, if appropriate
administrative filings are not made within a specified number of days,
and/or if its application is rejected during FMCSA review under 49 CFR
365.109.
8. Revisions to Proposed Application Form MCSA-1
The Agency proposed in the NPRM to combine the data elements now
captured on several different licensing, registration and certification
forms into a single, new application form called the Form MCSA-1.
Commenters generally supported the use of a single form but urged that
the form be as simple as possible. Although ATA generally supported the
scope of the proposed Form MCSA-1, it argued that the benefits the new
form could provide may be outweighed by problems caused by an unwieldy,
complex, and inconvenient form. ATA urged the Agency to ensure that the
form is as simple as possible for use by the majority of the trucking
industry, which largely consists of small business entities. In
particular, ATA said it is important for the form and its instructions
to be clear regarding the transactions for which the form is to be used
and the compliance requirements for each transaction type. ATA believes
Form MCSA-1 should be concise and devoid of requests for safety- and
non-safety-related information that are not required by the current
FMCSRs and HMRs. Finally, ATA urged the Agency to review and eliminate
all entries on Form MCSA-1 and its appendices that do not contain
critical data needed for the registration process (i.e., research
data).
The Utah Department of Transportation (UTDOT) and the Utah Trucking
Association (UTA) supported combining the filings in one form and using
one online central access point for motor carriers, freight forwarders,
and property brokers while providing an alternative for ``mom and pop''
companies that do not utilize computers.
The OOIDA supported combining several existing forms into one new
form and urged the Agency to make the form available in hard copy to
filers who are not ``computer-savvy.'' OOIDA supported the proposed
collection of carrier and cargo classification and HHG arbitration
information. OOIDA stated that the Bureau of Transportation Statistics
(BTS) should continue to collect motor carrier financial information
and sought verification that the collection of information on the new
form is not intended to replace BTS information collection activities.
Greyhound believed proposed Form MCSA-1 and the instructions for
its completion are somewhat confusing and need to be revised to be more
user friendly. Greyhound and ABA recommended that the Agency ``require
applicants to demonstrate they are in compliance with the Americans
with Disabilities Act (ADA) [[Pub. L. 101-336, Title I, Sec. 102, July
26, 1990, 104 Stat. 331] as amended].'' The Community Transportation
Association of America (CTAA) applauded the Agency's efforts to unify
all registration information into a single form but suggested some
minor modifications to the proposed form.
The National Propane Gas Association (NPGA) believed information
about gross operating revenue should not be collected. NPGA stated the
Form MCSA-1 instructions are unclear regarding whether a hazardous
materials shipper is required to file Form MCSA-1 and requested that
the Agency modify the instructions to explicitly state that the
proposed form would not apply to hazardous materials shippers. The
Corporate Transportation Coalition (CTC) stated that there must
continue to be a way to distinguish between private and for-hire
carriers and recommended that private carriers not be required to
submit financial data or other information unrelated to the safe
operation of their truck fleets.
The American Moving and Storage Association (AMSA) commented that
the more detailed and tougher congressional registration requirements
for HHG movers should be incorporated in the URS rule. Advocates for
Highway and Auto Safety (Advocates) supported the inclusion of the new
entrant provisions in the URS rule.
The FMCSA agrees that proposed Form MCSA-1 should be as simple and
easy to use as possible, consistent with the need to collect the
necessary information. The FMCSA has reviewed the draft Form MCSA-1 and
instructions in light of the various comments and made revisions to
clarify the form and instructions and to eliminate extraneous material.
The Agency proposes to revise the MCSA-1 form and instructions to
collect registration information from all FMCSA regulated entities,
except Mexico-domiciled long-haul carriers. Because hazardous materials
shippers are not subject to the FMCSRs, the Agency also proposes to
exclude them from the Unified Registration System. Conforming
amendments are proposed for Form MCSA-1 and instructions as well. As
mentioned previously, the URS rule was impacted by new provisions
enacted by SAFETEA-LU and subsequently promulgated final rules, which
brought new entities under FMCSA's registration jurisdiction (such as
intermodal equipment providers and non-North America-domiciled motor
carriers). To accommodate these
[[Page 66518]]
changes, the Agency proposes changes to the MCSA-1 form and
instructions, including additional questions and new or relocated
sections as follows:
------------------------------------------------------------------------
MCSA-1 Form--URS SNPRM
MCSA-1 Form--URS NPRM version version
------------------------------------------------------------------------
Section A--Business Description Section A--Business
Description
Section B--Motor Carriers Section B--General
Operational Information
Section C--Hazardous Materials (HM) Section C--Hazardous
Materials (HM)
Section D--Transportation of Household Section D--Hazardous
Goods Materials Permitting
Section E--Commercial Zone Operations Section E--Cargo Tank
Facility
Section F--Additional Information Section F--Transportation of
Household Goods
Section G--Safety Certifications Section G--Transportation of
Passengers
Section H--Certifications Section H--Scope of
Authority
Section I--Cancellation Section I--Commercial Zone
Operations
Section J--Filing Fee Information Section J--Non-North America-
Domiciled Carriers
Attachments to Section G (Supplemental ............................
information required only from a Mexico-
domiciled motor carrier)
Section K--Additional
Information
Section L--Safety
Certifications
(Certifications applicable
only to Mexico- or Non-
North America-domiciled
motor carriers)
Section M--Compliance
Certifications
Section N--Applicant's Oath
Section O--Filing Fee
Information
Attachments to Section L--
Supplemental Information
required only from a Mexico-
or Non-North America-
domiciled motor carrier
------------------------------------------------------------------------
Consistent with provisions under section 4204 of SAFETEA-LU, FMCSA
proposes collection of additional registration information from HHG
motor carriers as follows: (1) Evidence of participation in an
arbitration program and a copy of the notice of the arbitration program
as required by section 14708(b)(2); (2) identification of the carrier's
tariff and a copy of the notice of availability of the tariff for
inspection as required by section 13702(c); (3) evidence that carriers
have access to, have read, are familiar with, and will observe all
applicable Federal laws relating to consumer protection, estimating,
consumers' rights and responsibilities, and options for limitations of
liability for loss and damage; and (4) disclosure of any relationships
involving common stock, common ownership, common management, or common
familial relationships between filing carriers and any other motor
carriers, freight forwarders, or property brokers of HHG within 3 years
of the proposed date of registration.
The FMCSA also proposes the following improvements to Form MCSA-1
and the instructions:
Elimination of a requirement for U.S.- and Canada-
domiciled motor carriers to submit a ``description of a retraining and
educational program for poorly performing drivers.'' The form will
continue to require a certification that a motor carrier has in place
``a system and procedures for ensuring the continued qualification of
drivers to operate safely, including a safety record for each driver,
procedures for verification of proper age and licensing of each driver,
and procedures for identifying drivers who are not complying with the
safety regulations.'' The revised certification removes a requirement
not contained in the FMCSRs and is less burdensome.
The Agency previously proposed a vehicle certification
which read: ``My vehicles were manufactured or have been retrofitted in
compliance with the applicable USDOT Federal Motor Vehicle Safety
Standards.'' The SNPRM revises the proposed certification to read ``The
carrier will ensure, once operations in the United States have begun,
that all vehicles it operates in the United States were manufactured or
have been retrofitted in compliance with the applicable USDOT Federal
Motor Vehicle Safety Standards or Canadian Motor Vehicle Safety
Standards in effect at the time of manufacture.'' The Agency believes
the new language clarifies the carrier's responsibility to ensure that
no vehicle may be operated in the United States unless it complies with
the applicable vehicle safety standards.
The Agency proposes revisions to Form MCSA-1 to collect
information regarding ADA compliance. Although the Over-the-Road Bus
Accessibility Act of 2007 [Pub. L. 110-291, 122 Stat. 2915, July 30,
2008] requires FMCSA to consider compliance with DOT's ADA regulations
at 49 CFR part 37, subpart A, as an element of an over-the-road bus
company's fitness for receiving new operating authority, it does not
require the inclusion of detailed ADA compliance information in the
application form. Nonetheless, to assist in ensuring ADA compliance,
FMCSA will take the following actions:
[cir] Ask the following questions regarding ADA compliance during
the new entrant safety audit--
Does the carrier have the means to provide accessible
over-the-road bus (OTRB) service on a 48-hour advance notice basis by
its owned or leased OTRBs?
If the carrier does not have the means then does the
carrier have an arrangement with another carrier that operates
accessible OTRBs?
[cir] If noncompliance with DOT's ADA regulations is discovered in
the course of a new entrant safety audit or compliance review, FMCSA
will either forward the information to the U.S. Department of Justice
(DOJ) for appropriate action or conduct its own investigation and
attempt to resolve the violations, in accordance with a February 2009
Memorandum of Understanding between DOJ and DOT executed pursuant to
Public Law 110-291. (A copy of the Memorandum of Understanding has been
placed in the docket for this rulemaking).
[cir] Refer any non-compliant motor carrier that is also a
recipient of DOT financial assistance to FTA for administrative
enforcement action, as appropriate. FTA administers a program that
provides financial assistance to some over-the-road bus carriers and,
consistent with section 504 of the Rehabilitation Act of 1973 (29
U.S.C. 794), as amended, and DOT rules implementing it (49 CFR part
27), cannot provide such assistance to carriers who are out of
compliance with their ADA obligations.
[[Page 66519]]
[cir] When appropriate, initiate action to amend, suspend, or
revoke a carrier's registration based on willful noncompliance with
DOT's ADA regulations
FMCSA proposes conforming amendments to align 49 CFR 365.105 with
certain information on Form MCSA-1. In proposed Sec. 365.105, the
Agency replaces references to obsolete OP series forms with ``Form
MCSA-1'' and reduces the number of operational categories from six to
three so it is clear that the fee for operating authority applies only
to the general categories of motor carrier, broker and freight
forwarder and not to each individual subgroup of these categories
listed in Section A, question 17 of Form MCSA-1. (see Instructions for
Form MCSA-1, item number 50)
In proposed Sec. 365.107, the Agency replaces references to OP
series forms with ``Form MCSA-1.'' Also, the Agency proposes to remove
obsolete references to common and contract carriage as required by 49
U.S.C. 13902(f), as amended by section 4303(c) of SAFETEA-LU.
9. Adoption of an Exclusively Online Electronic Registration System
Several commenters filed comments about the effect of a mandatory
online filing requirement, including a possible phase-in period for
mandatory online filing. ATA supported the emphasis on online filing
and said it should be made mandatory with a 2 to 3 year phase-in
period. NCSTS stated that a minimum 5-year phase-in period is needed
before electronic filing becomes mandatory and suggested that FMCSA
maintain an alternative system to allow paper filings during systems
failures and computer outages. The Property Casualty Insurers
Association of America (PCIAA) also favored phased-in mandatory
electronic filing.
The Petroleum Marketers Association of America (PMAA), the American
Insurance Association (AIA), and OOIDA opposed mandatory electronic
filing. PMAA stated that some of its members would be unable to access
the Internet and urged the Agency to keep the paper filing option
available. OOIDA asserted electronic filing is a hardship for some
parties, opposed mandatory electronic filing and stated a 5-year phase-
in period is absolutely necessary in the event mandatory electronic
filing is adopted. OOIDA also stated that FMCSA should provide an
alternative back-up system to online filing.
The Agency believes mandatory electronic filing is feasible and
would result in substantial cost savings to both filers and FMCSA.
Currently, an estimated 88 percent of motor carriers in the United
States have Internet access, and this number is steadily growing.
Furthermore, the Internet is publicly accessible via libraries and
other public facilities. Electronic filing is cost effective and would
incorporate automated error checking, reduce processing time, and
facilitate faster issuance of USDOT Numbers. A detailed cost/benefit
analysis performed by the Agency supporting this position, titled
``Report on Benefits and Costs of Mandatory Electronic Filing of
FMCSA's Unified Registration System,'' is included as Appendix A to the
regulatory evaluation. The conclusions of this analysis are reported in
the URS SNPRM under Section IV, titled ``Regulatory Evaluation of the
URS SNPRM: Summary of Benefits and Costs.''
Based on the year-to-year increases in the percentage of electronic
filings for the Agency's MCMIS data, the Agency estimated that, even in
the absence of a mandatory electronic filing requirement, the
percentage of electronic filers would range between 80 and 90 percent.
The FMCSA developed projections of the numbers of new registrants
expected to enter the industry from 2014 to 2023 and assessed the costs
of electronic filing both for new registrants and for existing firms
that file biennial updates.
Mandatory electronic filing would only impose a cost on firms that
would otherwise have filed by paper due to a lack of computer skills
and/or Internet access. The results of FMCSA's analysis showed that
costs to these affected firms would be low, ranging from $12.73 to
$80.00 for new registrants and from $3.14 to $51.53 for firms with
recent activity filing biennial updates. The low end of these cost
ranges are for firms that file their registrations at a public library,
and the high end is for firms that would hire another entity to
complete the forms on their behalf. The FMCSA also prepared estimates
of the benefits of mandatory electronic filing, consisting of estimates
of the value of time saved by carriers and the value of substantially
more rapid receipt of operating authority, as well as benefits to FMCSA
from electronic filing. A comparison of the costs and benefits
indicated that mandatory electronic filing would result in anticipated
benefits of more than $38 million.
The FMCSA confirmed that the Small Business Administration (SBA)
would not consider a totally electronic registration system to be a
barrier to entry for small businesses, if the cost-benefit analysis
supported the proposal. Based on its analysis, FMCSA proposes a
mandatory electronic registration system. The system would incorporate
electronic signature technology for required signatures. Supplemental
documentation required for registration would be accepted
electronically as well. The system would include the capability to
upload scanned or electronic versions of this information.
The Agency does not propose a phase-in period because it
anticipates that most entities should have online access when the URS
rule becomes effective. The Agency would provide adequate time to
adjust to the electronic filing requirement when setting the compliance
date for the final rule, and would adopt procedures to ensure continued
operational capability in case of system failure.
10. Transfers of Operating Authority
This SNPRM withdraws the proposal that entities, when submitting a
revised Form MCSA-1 due to a change of name, form of business, or
address, must also submit a certification that there has been no change
in the ownership, management, or control of the entity. While the
Agency has determined that the ICCTA removed its statutory authority to
review transfers of operating authority, the ICCTA did not prohibit
such transfers. Therefore, FMCSA also would eliminate 49 CFR part 365,
subpart D, governing transfers of operating authority. A motor carrier
would be required, however, to identify any current management official
(e.g. Owner, President, Vice President, Safety Director, etc.)
responsible for motor carrier safety in its operation who was hired
after the last update when completing the Form MCSA-1 biennial
registration update. A motor carrier that changes its name, form of
business, or address would retain its existing USDOT Number.
Regarding the comments about the practice of ``churning'' (motor
carriers `reincarnating' by registering for a new USDOT Number in an
attempt to conceal a negative safety history), the Agency believes that
existing regulations, the proposals contained in this SNPRM and the
requirements in 49 CFR part 385, together with procedures adopted and
recently implemented by the Agency for review of motor carrier
applications for operating authority, will discourage this practice. In
this SNPRM, the Agency also proposes to require information on motor
carrier ownership on the Form MCSA-1 to be filed with the Agency prior
to receipt of a new USDOT Number. This information would assist the
Agency in identifying individuals involved in churning and rejecting
their applications for new registration when
[[Page 66520]]
appropriate. The Agency also believes that the requirement under 49 CFR
part 385 for all new entrants (carriers receiving a new USDOT Number)
to undergo a safety audit within 18 months of beginning operation will
deter carriers from engaging in this practice.
In addition, motor carriers required to obtain operating authority
pursuant to 49 CFR parts 390 and 365 may be subject to FMCSA review
procedures established under 49 CFR 365.109. Currently, FMCSA utilizes
these procedures for review of applications for household goods motor
carrier, broker, freight forwarder or passenger carrier authority.
However, in the future the Agency anticipates expanding the program to
include applications from all motor carriers that require operating
authority. Employing procedures established under Sec. 365.109, the
Agency reviews applications for completeness and for conformity with
the safety fitness standard. Through this process, if the Agency
determines that a carrier is not fit, willing and able to comply with
applicable statutes and regulations, the motor carrier's application
for operating authority will be rejected. In the event an application
is rejected, an appeal may be filed with the Agency pursuant to 49 CFR
365.111. In this SNPRM the Agency proposes revising 49 CFR 365.111 and
365.203 to provide the address and appropriate office for appeals of
rejections and for protests.
11. Cancellation, Reinstatement, and Deactivation of USDOT Registration
In the NPRM, the Agency proposed that a motor carrier seeking to
reinstate its USDOT Registration more than 2 years after its
registration was deactivated would be classified as a new entrant. In
setting the proposed threshold for reclassification of a carrier as a
new entrant at 2 years, the Agency sought to prevent carriers that go
in and out of business for very short periods of time from being
required to re-enter the New Entrant Safety Assurance Program.
The OOIDA disagreed with the Agency's statement that a carrier that
has been inactive for more than 2 years is functionally equivalent to a
new entrant. OOIDA explained that many motor carriers, including owner-
operators, may operate under another carrier's authority for a period
of time for economic reasons. In these cases, OOIDA believes the Agency
is not justified in proposing to require the carrier to pay a new
registration fee and to undergo a new safety audit as a condition for
activating registration.
Advocates supported the proposal that carriers that have been
inactive for more than 2 years be treated as new entrants and be
required to successfully complete the New Entrant Safety Assurance
Program.
Consistent with the new regulatory drafting strategy for the SNPRM,
the Agency is not proposing to make changes to its New Entrant Safety
Assurance Program. While the New Entrant Safety Assurance Program is
triggered by the registration process, it is a separate program whose
governing regulations are codified under 49 CFR parts 365 and 385. This
SNPRM addresses cancellation, reinstatement and deactivation of USDOT
Registration/operating authority only from the standpoint of fees and
other administrative requirements. The Agency recently published
revisions to its New Entrant Safety Assurance Program, including
regulations governing reinstatement. (``New Entrant Safety Assurance
Process; Final Rule,'' published on December 16, 2008 at 73 FR 76472).
12. Additional Proposals Regarding Special Transit Operations (Federal
Transit Administration (FTA) Grantees)
The non-profit organization CTAA, which represents public and
community-based FTA grantees, generally supported the provisions of the
NPRM applicable to FTA grantees. However, CTAA suggested that the
Agency revise the rule to: (1) Clarify that the requirements would
apply to motor carriers of passengers that participate in interlining
or through-ticketing arrangements with one or more interstate for-hire
motor carriers of passengers; (2) designate an Agency point of contact
to assist FTA grantees in completing their applications; and (3) amend
proposed Form MCSA-1 to include specific information applicable to FTA
grantees, including governmental status, transit areas, certification
of compliance with FTA (not FMCSA) drug and alcohol testing
regulations, and a statement that FTA grantees need not pay a filing
fee. CTAA urged FMCSA to permit risk retention groups and other forms
of pooled insurance as ways to satisfy the Agency's financial
responsibility requirements. Finally, CTAA stated that the regulations
should take into account the effect on FTA programs of the last two
comprehensive reauthorization statutes.
Greyhound and ABA supported clarifying the status of transit
providers that operate entirely within one State but participate in
interline relationships with interstate carriers. They agreed that
FMCSA should explicitly state that such transit providers are not
subject to the FMCSA insurance requirements but rather must meet the
insurance requirements of the States in which they operate.
The Rhode Island Public Transit Authority (RIPTA) asserted that the
NPRM offered little relief from what it considers a burdensome and
confusing system of compliance with FMCSA, the Federal Highway
Administration (FHWA), and FTA requirements. The Ohio Department of
Transportation (ODOT) said the Agency must: (1) Clearly define the
difference between a ``for-hire'' CMV and a public FTA-funded transit
vehicle that travels across State lines beyond a contiguous
jurisdiction; (2) address the type of public transportation system that
is operated by a designated grantee (whether government or private non-
profit); (3) exempt vehicles transporting between 9 and 15 passengers
and originating and terminating in the same State but traveling through
an adjacent State for operational convenience; and (4) permit financial
responsibility requirements to be satisfied through participation in
shared risk programs, such as Ohio's County Risk Sharing Authority.
The OOIDA opposed relieving FTA grantees of the requirement to pay
filing fees, contending the NPRM provides no rationale for relieving
what are essentially private companies with a government contract of
their fair share of the cost of the registration program.
In response to these comments, FMCSA proposes under Sec. Sec.
390.101(b) and 387.33(b) to clarify the specific URS registration and
financial responsibility obligations for FTA grantees. Although all FTA
grantees would be required to register with FMCSA and would receive a
fee waiver, their financial responsibility requirements could differ,
depending on the FTA program under which the grantee receives funding.
The proposed minimum financial responsibility requirement for a grantee
that provides transportation within a transit service area located in
more than one State under an agreement with a Federal, State, or local
government funded, in whole or in part, with a grant under 49 U.S.C.
5307, 5310 or 5311 is the highest level of financial responsibility
required for any of the States in which it operates. An FTA grantee
that receives funding under other grant programs (section 5316 and 5317
grantees) would be subject to the general financial responsibility
requirements applicable to for-hire passenger carriers that do not
receive FTA funding. The different financial responsibility
requirements are due to the fact that 49 U.S.C. 31138(e)(4) expressly
exempts section 5307, 5310
[[Page 66521]]
and 5311 grantees from the Federal general financial responsibility
requirements and instead subjects them to applicable State
requirements. The exemption does not cover section 5316 and section
5317 grantees; neither the Transportation Equity Act for the 21st
Century (TEA-21) [Pub. L. 105-78, 112 Stat. 107, June 9, 1988] nor
SAFETEA-LU amended 49 U.S.C. 31138 to expressly exclude them from the
Federal financial responsibility requirements.
The Agency proposes to incorporate all but one of CTAA's
recommended changes to Form MCSA-1. The FMCSA could not add a cross
reference to existing FTA drug and alcohol regulations to the Drug and
Alcohol Safety Certification because the Drug and Alcohol Safety
Certifications under Section L of Form MCSA-1 apply only to Mexico- or
non-North America-domiciled motor carrier applicants--entities that are
ineligible to receive FTA grants. (See Section L, question 47, III, 1
on proposed Form MCSA-1).
With respect to ODOT's suggestion to differentiate between for-hire
motor carriers and public transit vehicles, and to exempt certain types
of vehicles and transportation from the URS requirements, the Agency
notes that public transit vehicles are a subset of for-hire CMVs.
Accordingly, the Agency declines to distinguish between for-hire motor
carriers and public transit vehicles for purposes of registration under
proposed part 390, subpart C. Moreover, the Agency is not authorized to
grant ODOT's request to exempt from registration requirements those
vehicles transporting between 9 and 15 passengers and originating and
terminating in the same State but traveling through an adjacent State
for operational convenience. The Agency recognizes the limited
exemption from the Federal minimum financial responsibility
requirements set forth in proposed Sec. 387.33(b) granted to certain
public transit operators, pursuant to 49 U.S.C. 31138(e)(4). However,
the exemption from the minimum financial responsibility requirements
does not include those operators providing service in more than one
State from having to file proof of financial responsibility pursuant to
the minimum levels set by State law.
The CTAA and ODOT additionally requested that the Agency allow
transit operators to satisfy financial responsibility requirements
through shared risk programs. CTAA characterizes such shared risk
programs as ``risk retention groups and other forms of `pooled'
insurance * * * .'' In responding to these comments, the Agency must
first distinguish between risk retention groups and risk pools.
Risk retention groups (RRGs) are established under the Liability
Risk Retention Act of 1981 [Pub. L. 97-45, 95 Stat. 949, September 25,
1981] and are defined at 15 U.S.C. 3901(a)(4). According to a 1987 ICC
Policy Statement, which authorized the Commission to accept
certificates of insurance from RRGs, those entities are required by
Congress to:
(1) Be chartered or licensed under the laws of a State as a
liability insurance company and authorized by such State's laws to
engage in the business of insurance;
(2) [Not] exclude any person from membership solely for the purpose
of providing existing members of such group a competitive advantage
over the excluded person;
(3) Have as its owners only persons who comprise the membership of
the Risk Retention Group and who are provided insurance by the group,
or has as its sole owner an organization which has as its members only
persons who are members of the Risk Retention Group; and
(4) Be formed by persons who are engaged in businesses or
activities similar or related as to the liability to which they are
exposed by virtue of related, similar or common business, etc.
Implementation of Liability Risk Retention Act of 1986, Ex Parte
No. MC-178 (Sub-No. 4), 1987 WL 98199, at *1 (decided Mar. 31, 1987)
(``ICC Policy Statement''). The ICC Policy Statement indicated that
RRGs ``are unquestionably insurance companies, and can meet the
criteria prescribed for insurance * * * companies in 49 CFR 1043.8 * *
*.'' Id. at *2. Former Sec. 1043.8 is the predecessor to current 49
CFR 387.315. The FMCSA continues to accept RRG filings.
Insurance risk pools are typically private associations operated on
a statewide basis for the benefit of their members. The main
distinction between risk pools and RRGs is that risk pools do not meet
the statutory requirements established for RRGs under the Liability
Risk Retention Act of 1981. The public transit risk pools allow the
State and municipal transit operators to achieve economies of scale in
purchasing insurance resulting in lower premiums and other benefits to
the limited membership. Transit risk pools are generally approved by
the State and supported by the State Departments of Transportation.
Unlike RRGs, State and local government risk pools generally have
not been approved by FMCSA as an acceptable form of insurance pursuant
to the section 13906 requirement that the Secretary ``register a motor
carrier under section 13902 only if the registrant files with the
Secretary a bond, insurance policy or other type of security approved
by the Secretary * * *.'' The Agency's position has been that risk
pools do not qualify as a bond or insurance policy, and that a motor
carrier may meet the financial responsibility requirements through
self-insurance only if the insured applies for approval under the
Agency's self-insurance program.
This issue is complicated by section 31138(e)(4), which exempts
transit operators receiving Federal grants under 49 U.S.C. 5307, 5310,
or 5311 from both the amounts and type of financial responsibility that
must be provided as evidence of compliance with the financial
responsibility requirement. Section 31138(e)(4) further provides,
however, that where the transit service area is in more than one State,
the minimum level of financial responsibility shall be the highest
level required for any of such States. This requirement has been
incorporated into proposed Sec. 387.33(b). The above notwithstanding,
these exempted transit services operators still are subject to
registration under 49 U.S.C. 13902(b)(2) and are required to register
and provide proof of insurance pursuant to proposed Sec. 365.109.
Pursuant to 49 U.S.C. 13906(a)(1), the ``Secretary may register a
motor carrier under section 13902 only if the registrant files with the
Secretary a bond, insurance policy, or other type of security approved
by the Secretary, in an amount not less than such amount as the
Secretary prescribes pursuant to, or as is required by, sections 31138
and 31139, and the laws of the State or States in which the registrant
is operating, to the extent applicable.'' Section 387.301 currently
permits motor carriers to satisfy their financial responsibility
requirements by filing proof of such ``other securities'' as the
Secretary approves.
This proposed rule expressly addresses registration and insurance
requirements for certain types of transit operators. It is therefore
appropriate to resolve confusion that has arisen in this area. The
Agency recognizes that allowing these transit operators to utilize
State-approved risk pools would expand the types of security approved
by the Secretary for certain transit service operators and harmonize
the provisions of sections 31138(e)(4) and 13906(a)(1) by recognizing
the State's approved form of financial responsibility for these
operators. As a
[[Page 66522]]
result, the Agency intends to publish a separate Federal Register
notice that will describe the Agency's proposed change in policy to
allow transit service providers that fall under the provisions of
proposed Sec. 387.33 to utilize State-approved risk pools in order to
meet the State financial responsibility requirements pursuant to
section 31138(e)(4) and proposed Sec. 387.33.
13. Temporary Operating Authority
Former 49 U.S.C. 10928(b) allowed the ICC, which was sunsetted in
1995, to issue temporary authority to provide transportation to a place
or in an area having no motor carrier capable of meeting the immediate
needs of the place or area. Former section 10928(c) permitted the ICC
to issue emergency temporary authority if, due to emergency conditions,
there was insufficient time to process an application for temporary
authority.
Temporary authority was originally made available because it took
several months for the former ICC to process applications for permanent
operating authority, particularly if competing carriers protested the
application. Following changes in statutory standards which led to
greatly reduced application processing time, the ICC limited the
issuance of temporary authority to ``exceptional circumstances (i.e.,
natural disasters or national emergencies) when evidence of immediate
service need can be specifically documented * * *.'' [See existing 49
CFR 365.107(g)]. FHWA (and later FMCSA) retained this provision when
the ICC operating authority regulations were transferred to USDOT in
1996.
The ICCTA repealed 49 U.S.C. 10928(b) and (c) and did not enact any
comparable provisions expressly authorizing the issuance of temporary
authority. However, the ICCTA does not prohibit the issuance of
temporary authority and 49 U.S.C. 13905(c) provides that any
registration issued to motor carriers, freight forwarders, and property
brokers under chapter 139 shall remain in effect for such period as the
Secretary determines appropriate by regulation. Therefore, there is
general statutory authority to continue issuing temporary authority.
However, the NPRM did not include a provision permitting motor carriers
to obtain temporary registration or operating authority.
Greyhound requested that the Agency grant temporary operating
authority to prevent service disruptions which may occur as a result of
Greyhound's restructuring its nationwide service. Greyhound believes
replacement companies will not be able to obtain operating authority
before it abandons certain routes. Greyhound claimed it provides at
least 30 days notice before it discontinues a route and cannot provide
more notification time ``if the restructuring is to be implemented in a
timely manner.'' Greyhound proposed the Agency adopt a process by which
emergency temporary authority would become effective immediately upon
the filing of a temporary authority application and proof of insurance
and would remain in effect until FMCSA processed the permanent
application, perhaps 90 days. ABA also supported the Greyhound
proposal.
The FMCSA believes that continued issuance of temporary operating
authority as limited under Sec. 365.107(g) is warranted. During the
Hurricane Katrina relief effort in 2005, FMCSA received numerous
applications for emergency temporary authority pursuant to Sec.
365.107(g) and the Agency believes that having a procedure for the
issuance of temporary operating authority will enhance future emergency
relief efforts. However, except in extraordinary circumstances such as
natural disasters, the Agency does not anticipate many requests for
such applications. We believe Greyhound overstates the time it takes
FMCSA to currently process applications for operating authority and its
comments do not provide a convincing rationale for extending the
current requirements to prospective ``emergencies'' caused by
manageable business decisions. Under proposed Sec. 365.107(e), FMCSA
would grant temporary operating authority only in cases of national
emergency or natural disaster and following an emergency declaration
under 49 CFR 390.23. Entities granted temporary operating authority
would need to file evidence of financial responsibility with the
Agency.
14. NTSB Recommendation Impacting Cargo Tank Applications and Updates
After investigating a 2009 incident involving the rollover of a
truck-tractor and cargo tank semitrailer and the resulting fire, the
National Transportation Safety Board (NTSB) made 20 draft
recommendations to four DOT modal administrations, including FMCSA, and
the American Association of State Highway and Transportation Officials.
As part of a recommended rollover prevention program, NTSB recommended
that FMCSA revise the MCS-150 form to require hazardous materials
carriers to report the number and types of U.S. Department of
Transportation specification cargo tanks owned or leased by the
carriers and provide other pertinent data displayed on the
specification plates of such tanks. NTSB recommended that FMCSA require
this information to be updated annually. As FMCSA proposes to replace
the MCS-150 form with the new MCSA-1 form through this rulemaking, the
Agency believes it would be appropriate to solicit information from the
public regarding:
(1) Whether the MCSA-1 form should be revised to incorporate the
NTSB recommendation;
(2) Whether the collection of additional information regarding
cargo tanks would prove useful in connection with a rollover prevention
program;
(3) Whether cargo tank carriers should be required to submit
updated data more frequently than biennially. If so, what event should
trigger the update requirement;
(4) What would be the burden associated with collecting additional
cargo tank information biennially or more frequently;
(5) Whether there are alternatives for collecting this information;
and
(6) Whether this information is already being collected by other
entities, such as State Departments of Motor Vehicles.
IV. Regulatory Evaluation of the URS SNPRM: Summary of Benefits and
Costs
A. Summary
The FMCSA has revised its 2005 NPRM in response to congressional
mandates included in SAFETEA-LU and in response to comments to the May
2005 NPRM. In this section of the SNPRM, FMCSA summarizes its
calculation of the costs and benefits associated with the changes
included in this proposed rulemaking. Although many of the revisions
proposed under URS would result in changes to existing fees paid by
motor carriers (creation of new fees or elimination of existing fees),
these changes would result in a shifting of fees from one group to
another and would not result in a net gain (benefit) or loss (cost)
from a societal perspective. For example, if FMCSA were to eliminate a
fee previously paid by motor carriers, that group would receive a
benefit. However, the benefit would be offset by an equal cost to the
Agency in the form of lost revenues. The FMCSA classified the costs and
benefits calculated in the regulatory evaluation as either changes in
fees, resource costs, or benefits. Changes in fees are neutral from a
societal perspective, but changes in resource costs and benefits result
in either a cost or a benefit to society. The
[[Page 66523]]
FMCSA estimated the costs and benefits associated with implementing the
following proposed major URS SNPRM provisions:
A new requirement for private and exempt for-hire motor
carriers, cargo tank facilities, and intermodal equipment providers
(IEPs) to pay FMCSA registration fees; \11\
---------------------------------------------------------------------------
\11\ Throughout this section, cargo tank facilities and IEPs are
referred to as ``other entities.''
---------------------------------------------------------------------------
A new requirement for private carriers and exempt for-hire
motor carriers to file proof of process agent designations with FMCSA;
A new requirement for private HM and exempt for-hire motor
carriers to file proof of liability insurance with FMCSA;
A reduction of the current reinstatement fee for non-
exempt for-hire motor carriers, brokers and freight forwarders and new
reinstatement fees for exempt for-hire and private hazmat motor
carriers;
Elimination of operating authority transfers and filing
fees for name changes;
Introduction of new Form MCSA-1 filing requirements; and
Mandatory electronic filing of Form MCSA-1.
Table 1 presents the total costs associated with the URS SNPRM. The
URS proposal results in an anticipated resource cost to industry of
$26,342,699 and a resource cost to FMCSA of $135,158 over the 10-year
analysis period (2014-2023). The total societal cost of the SNPRM is
thus $26.5 million ($26,342,699 + 135,158). The industry also would
experience an increase in fees of $65.3 million, and the Agency would
experience a decrease in fee revenues of $6.7 million.
Table 1--Total Costs of URS Proposed Rule
----------------------------------------------------------------------------------------------------------------
Resource costs Fees paid/lost
URS Rule provision ---------------------------------------------------------------
Industry Agency Industry Agency
----------------------------------------------------------------------------------------------------------------
Mandatory Electronic Filing..................... $538,894 $0 $0 $0
Eliminating Transfer/Name Change Requirements... 0 0 0 1,854,890
New Registrant Fee.............................. 0 0 63,583,722 0
Insurance Filing................................ 676,723 0 1,691,808 0
Process Agent Filing............................ 25,067,012 0 0 0
Cancellations and Reinstatements................ 60,070 135,158 0 4,808,126
New MCSA-1 Application Form..................... 0 0 0 0
---------------------------------------------------------------
Total Costs................................. 26,342,699 135,158 65,275,530 6,663,017
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not add due to rounding.
Table 2 presents the total benefits of the URS rule for each
provision. For the industry, total benefits amount to $3.3 million and
fee savings amount to $6.7 million. For the Agency, total benefits
amount to $42.7 million and $65.3 million in fees received. This
proposal would improve the ability of FMCSA safety investigators to
locate small and medium-sized private and exempt for-hire motor
carriers for enforcement action because investigators would be able to
work with the newly-designated process agents to locate hard-to-find
motor carriers. The Agency believes that a more efficient Compliance,
Safety, Accountability (CSA) program would lead to increased safety
benefits. However, to present a conservative estimate of the benefits
of the URS rule, we only estimate the benefit of time saved by the
Agency due to a more efficient CSA program.
Table 2--Total Benefits of URS Rule
[10-year present value]
----------------------------------------------------------------------------------------------------------------
Benefits Fees received/saved
URS rule provision ---------------------------------------------------------------
Industry Agency Industry Agency
----------------------------------------------------------------------------------------------------------------
Mandatory Electronic Filing..................... 1,964,186 36,190,320 0 0
Eliminating Transfer/Name Change Requirements... 0 0 1,854,890 0
New Registrant Fee.............................. 0 0 0 63,583,722
Insurance Filing................................ 0 0 0 1,691,808
Process Agent Filing............................ 0 3,130,736 0 0
Cancellations and Reinstatements................ 0 0 4,808,126 0
New MCSA-1 Application Form..................... 1,354,631 3,391,089 0 0
---------------------------------------------------------------
Total Benefits.............................. 3,318,817 42,712,146 6,663,017 65,275,530
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not add due to rounding.
The FMCSA calculated the net societal benefits of the proposed rule
by subtracting the total (industry and Agency) 10-year costs from the
total 10-year benefits for each provision. The cost to industry
associated with fee changes is offset by an equal gain to FMCSA due to
increased revenues from fees. Table 3 presents the net benefits of the
proposed rule. Net benefits are estimated to be -$23.0 million for the
industry and $42.6 million for FMCSA. This results in total societal
net benefits of the URS SNPRM of $19.6 million. The industry would
experience a total increase in fees of -$58.6 million (including total
fees paid and fees saved). This increase in fees to the
[[Page 66524]]
industry is offset by a total $58.6 million increase in fees received
by FMCSA (including fees lost and fees received). FMCSA believes the
fees and costs of the URS rule would not lead to a reduction in
competitiveness.
Table 3--Net Benefits of URS Proposed Rule
[10-year present value]
----------------------------------------------------------------------------------------------------------------
Net benefits Net fees
URS rule provision ---------------------------------------------------------------
Industry Agency Industry Agency
----------------------------------------------------------------------------------------------------------------
Mandatory Electronic Filing..................... $1,425,292 $36,190,320 $0 $0
Eliminating Transfer/Name Change Requirements... 0 0 1,854,890 -1,854,890
New Registrant Fee.............................. 0 0 -63,583,722 63,583,722
Insurance Filing................................ -676,723 0 -1,691,808 1,691,808
Process Agent Filing............................ -25,067,012 3,130,736 0 0
Cancellations and Reinstatements................ -60,070 -135,158 4,808,126 -4,808,126
New MCSA-1 Application Form..................... 1,354,631 3,391,089 0 0
Net Benefits.................................... -23,023,883 42,576,988 -58,612,513 -58,612,513
---------------------------------------------------------------
Societal Net Benefits....................... 19,553,105 0
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not add due to rounding.
B. Calculation of Costs and Benefits
This section summarizes the calculation of the costs and benefits
for each URS provision. All costs and benefits were calculated over a
10-year period in nominal dollars, restated in real 2010 dollars, and
discounted to present value using a rate of seven percent per Office of
Management and Budget (OMB) guidelines. A full discussion of the data
used, assumptions made, and calculations performed can be found in the
regulatory evaluation contained in the public docket for the URS SNPRM.
1. Proposed New Registration Fees Under the URS
Currently, only non-exempt for-hire motor carriers, property
brokers, and freight forwarders must pay a one-time registration fee to
FMCSA of $300. However, under the URS, FMCSA proposes to require exempt
for-hire, private motor carriers and other entities to pay a one-time
registration fee as well. Section 4304 of SAFETEA-LU provides that the
fee for new registrants shall as nearly as possible cover the costs of
processing the registration but shall not exceed $300. The FMCSA
determined that it would need to charge all new registrants the maximum
allowable fee of $300 because the amount needed to cover the 10-year
Agency costs associated with processing the registration filings based
on projections of annual new registrants and Agency processing costs
exceeds the $300 limit.
The FMCSA forecasted $360,122,795 in upgrading and operating costs
of the registration system over the 10-year period from 2014 through
2023. This total includes the costs to operate the new motor carrier
licensing and insurance system. The total also includes the cost for
FMCSA to vet all new registrant for-hire carriers.\12\
---------------------------------------------------------------------------
\12\ The FMCSA has authority to vet all for-hire carriers, but
is currently vetting only for-hire household goods and passenger
carriers. During the vetting process, FMCSA reviews the application
for completeness and determines if the applicant complies with the
statutory and regulatory safety fitness requirements. During this
review, FMCSA staff compares the applicant's data with existing
carrier data in order to identify noncompliant carriers seeking
authority under a different name. If an application is incomplete,
FMCSA will contact the applicant to obtain missing information. If
FMCSA determines that an applicant is an unsafe carrier or the
application is materially incomplete, FMCSA will reject the
application. The applicant is provided an opportunity to appeal the
rejection and submit additional evidence to support its position
that the application should be approved.
---------------------------------------------------------------------------
A portion of these licensing, insurance, and vetting costs will be
defrayed by fee revenues other than new registrant registration fees.
The FMCSA estimated fees collected for various insurance filings to be
$6,943,479 over the 10-year period, and subtracted the 10-year present
value of other fee revenues ($6,943,479) from the licensing, insurance,
and vetting cost estimate to arrive at $353,179,316 in present value
costs that the Agency must recover through the registration fee. The
FMCSA divided this cost estimate by its projection of dollars collected
per dollar of fee ($486,678)\13\ to arrive at a fee of $725. Per
Section 4304 of SAFETEA-LU, FMCSA proposes to charge the maximum
registration fee permitted by law, $300 per new registrant. Though a
portion of the fees could cover some of the costs of FMCSA review of
applications, the $300 fee will not be sufficient to cover all of these
review costs.
---------------------------------------------------------------------------
\13\ This number was calculated by multiplying the number of new
registrants in each year by $1, discounting to find the present
value, and summing over the 10-year period of the analysis.
---------------------------------------------------------------------------
The cost to industry associated with the change would be
$63,583,722 in discounted dollars over the 10-year period (shown in
Table 4). This cost to industry would be offset by an equal benefit to
the Agency resulting from the revenues generated through the new
registration fees.
Table 4--Proposed Change in FMCSA Registration Fee to New Registrants by Operation and Classification
----------------------------------------------------------------------------------------------------------------
Number (2014- Total (present
Operation classification 2023) Fee change Total (2010 $) value)
----------------------------------------------------------------------------------------------------------------
Exempt For-Hire Carriers................ 44,449 300 $13,334,700 $10,083,170
Private Carriers and other entities *... 235,945 300 70,753,500 53,500,522
-----------------------------------------------------------------------
Total............................... 280,294 ................ 84,088,200 63,583,722
----------------------------------------------------------------------------------------------------------------
* Cargo tank facilities and IEPs.
[[Page 66525]]
2. Designation of Process Agents
The FMCSA proposes amending 49 CFR part 366 to require private and
exempt for-hire carriers to file process agent designation information
with the Agency. Although, per SAFETEA-LU, carriers will not be
assessed a fee when filing this information, there is still a cost to
industry associated with engaging a process agent. The FMCSA estimated,
based on price quotes available from process agents, that the cost to
engage a process agent is currently about $35 per carrier. This cost
was assumed to cover the minimal filing cost to the process agent. No
processing cost was assumed for FMCSA for this electronic filing.
The FMCSA calculated $7,199,122 in discounted costs to industry
associated with new-registrant private and exempt for-hire carrier
process agent filings for 2014 through 2023.
The FMCSA assumed that no private and exempt for-hire motor
carriers with recent activity have designated process agents. The FMCSA
calculated one-time compliance costs for affected carriers with recent
activity of $910,546,445 based on its estimate of 253,019 private and
exempt for-hire carriers with recent activity in 2014.
Finally, FMCSA, based on discussions with the FMCSA Commercial
Enforcement Division, estimated that 10 percent of private and exempt
for-hire motor carriers with recent activity would change their process
agents each year. The FMCSA calculated discounted costs to industry of
$7,321,445 associated with re-filing activities over the 10-year
analysis period. The FMCSA also calculated the Agency resource cost to
process the carrier process agent changes.
Non-exempt for-hire motor carriers, brokers and freight forwarders
currently must file designations of process agents via a ``BOC-3''
filing. Under the URS SNPRM, FMCSA proposes to require both private and
exempt for-hire carriers to make the same filings.
This proposal would improve the ability of FMCSA safety
investigators to locate small and medium-sized private and exempt for-
hire motor carriers for enforcement action because investigators would
be able to work with the newly-designated process agents to locate
hard-to-find motor carriers. If the time saved were used by safety
investigators to conduct more Compliance, Safety, Accountability (CSA)
program interventions, the Agency believes this would lead to increased
safety benefits. However, to present a conservative estimate of the
benefits of the URS rule, we only estimate the benefit of time saved by
the Agency due to a more efficient CSA program.
The FMCSA investigators sometimes spend 20 hours or more attempting
to locate motor carriers for enforcement action, and in some cases are
unable to track down the subject carrier. The FMCSA estimated that the
availability of process agent information would save field staff an
average of 15 hours in cases involving hard-to-locate carriers.
In 2002, States conducted 216 carrier searches per year on average.
In 2003, FMCSA Division Offices reported between 10 and 100 cases per
State in which field staff had significant trouble locating a motor
carrier against whom they wished to take enforcement action, with most
Division Offices reporting fewer than 25 such instances.
The FMCSA estimated that 15 enforcement cases per State per year
(or roughly two thirds of the ``difficult'' cases) would benefit from
dramatically reduced search costs because of the proposed requirement
for private and exempt for-hire carriers to designate process agents.
The estimates of 15 saved hours per difficult case and 15 difficult
cases per year per division result in 225 (15 x 15) annual staff hours
saved per State, or 11,250 (225 x 50 States) annual staff hours saved
in total. Assuming the Agency would allocate all of the annual saved
staff hours to reducing labor costs, FMCSA estimated the value of this
annual benefit by multiplying the total annual hours saved (11,250) by
the Agency wage rate presented above in Section 2. For example, in
2014, the saved staff hours would benefit the Agency by reducing labor
costs by $416,585 (11,250 x $37.03).
The FMCSA projected this annual benefit over the 10-year analysis
period to arrive at a total benefit of $4.2 million in 2010 dollars.
The FMCSA discounted this benefit to present value applying a seven
percent discount rate consistent with the other portions of this
analysis. The Agency arrived at a total benefit due to reduced labor
cost (i.e., increased efficiency) of $3.1 million over the 10-year
analysis period.
In total, the regulatory changes requiring exempt for-hire and
private carriers to file process agent designations would result in a
cost of $25,067,012 to industry and a benefit to the Agency of
$3,130,736, and thus a societal net benefit of -$21,936,276. The Agency
invites comments on whether the process agent filing process can be
made less costly. If there are less costly alternatives, please provide
specific recommendations along with supporting data.
3. Financial Responsibility
Under the URS SNPRM, all new registrant exempt for-hire and private
HM carriers' insurance representatives would need to file evidence of
financial responsibility with FMCSA, and the carriers would be assessed
a $10 filing fee.\14\ The FMCSA calculated 10-year fee costs of
$460,331 to industry using its estimate of new registrant exempt for-
hire and private HM carriers. This $460,331 cost to industry is offset
by an equal benefit to the Agency resulting from revenues from the new
fees.
---------------------------------------------------------------------------
\14\ Section 4304 of SAFETEA-LU caps financial responsibility
filing fees at $10. The filing fee is paid to FMCSA by the insurance
company making the filing on behalf of the carrier and is passed on
to the carrier by the insurance company.
---------------------------------------------------------------------------
The $10 fee is a transfer from the industry to the Agency, but the
industry will incur resource costs associated with filing. The FMCSA
assumed it would take insurance companies a minimal amount of time to
file the required proof of insurance for each carrier they insure.
Because these filings are handled electronically, FMCSA assigned a cost
of only $4 per filing, assuming 10 minutes of time for a clerk. The
FMCSA calculated the resource cost to new registrant exempt for-hire
and private HM carriers by multiplying its projection of filing costs
by its estimate of new registrants over the 10-year period to arrive at
a total discounted resource cost to industry of $184,132.
The FMCSA would require existing exempt for-hire and private HM
carriers to file proof of insurance. Using the Agency's 2008 Motor
Carrier Management Information System (MCMIS) data, FMCSA estimated
that in 2014 there will be 48,308 exempt for-hire carriers with recent
activity and 25,019 private HM carriers with recent activity. The FMCSA
calculated a discounted cost to industry of $693,890 associated with
the fees. This cost to industry is offset by an equal benefit to the
Agency due to the revenues from the fees.
The FMCSA calculated the resource cost to carriers with recent
activity by multiplying its $4 filing cost estimate by the total exempt
for-hire and private HM carriers with recent activity to arrive at a
discounted resource cost of $733,270.
Currently, all for-hire motor carriers, property brokers, and HHG
freight forwarders performing transfer, collection and delivery service
must maintain current proof of financial responsibility on file with
FMCSA to remain in ``active'' status. If an insurance company or
financial institution notifies FMCSA of cancellation of coverage,
carriers,
[[Page 66526]]
property brokers, and freight forwarders must file evidence of
replacement coverage before the policy, bond or trust fund termination
date. Under this proposed rule, exempt for-hire and private HM carriers
would be subject to the same requirements. There is a $10 fee
associated with filing proof of replacement financial responsibility.
Based on 2008 MCMIS data, roughly 8.56 percent of non-exempt for-
hire carriers with recent activity filed proof of replacement liability
insurance coverage with the Agency. The FMCSA assumed the same portion
of the exempt for-hire and private HM carriers would file proof of
replacement insurance following a policy cancellation. The FMCSA thus
calculated the fees associated with evidence of financial
responsibility replacement filings resulting from this proposed change
by multiplying the $10 filing fee by 8.56 percent of the exempt for-
hire and private HM carriers with recent activity each year. This
calculation resulted in a discounted cost to industry over the 10-year
analysis period of $498,207. This cost to industry would be offset by
an equal benefit to the Agency in the form of new fees received.
The FMCSA calculated the resource cost to carriers with recent
activity by multiplying its replacement filing cost estimate by 8.56
percent of the population of exempt for-hire and private HM carriers
with recent activity. This resulted in a total discounted resource cost
to operating carriers over the 10-year analysis period of $199,283.
Again, no costs were attributed to the Agency for these filings.
Changes in requirements for financial responsibility filings
resulted in a total 10-year cost to industry of $1,691,808. This cost
to industry due to changes in requirements, however, is offset by an
equal benefit to FMCSA for revenues from fees associated with the
increased number of filings. Therefore, the societal costs due to
changes in fees are zero. These proposed changes resulted in total 10-
year resource costs to industry of $676,723.
4. Cancellation and Reinstatement of USDOT Numbers/Operating Authority
As discussed in the previous section, non-exempt for-hire motor
carriers, property brokers, and certain HHG freight forwarders must
maintain current proof of financial responsibility (liability
insurance, bond, or trust fund information) with FMCSA to retain their
commercial operating authority. If an insurance company or financial
institution notifies FMCSA of cancellation of coverage, carriers,
property brokers, and HHG freight forwarders must file evidence of
replacement coverage before the policy, bond or trust fund termination
date. The operating authorities of entities that do not file the
required updates are revoked and these entities must apply for
reinstatement of their operating authority by making the necessary
filings. The FMCSA proposes to require exempt for-hire and private HM
carriers and all freight forwarders providing transfer, collection and
delivery service to file and maintain proof of liability insurance as a
condition for obtaining and retaining an active USDOT Number. The FMCSA
would deactivate the USDOT Number of noncompliant entities, who would
be required to reactivate their USDOT registrations and resume
operations subject to FMCSA jurisdiction.
Under the current system, carriers requesting reinstatement of
operating authority must file a written request for reinstatement, pay
an $80 fee (on-line by credit card, by phone with a credit card, or by
mail with a check) and make the applicable financial responsibility
filing. Once the payment is received and applicable filings are made,
the FMCSA information system matches up the payment with the filings
and automatically issues a reinstatement letter at 5 a.m. on the next
business day. Under the proposed system, carriers requesting
reinstatement would make the request electronically using Form MCSA-1,
pay a $10 fee, and complete applicable filings showing that their
insurance is back in effect. The Agency aspect of the reinstatement
process would remain the same under the proposed system.
The FMCSA discusses these changes below in the following
categories: (a) Reinstatement for non-exempt for-hire carriers, brokers
and freight forwarders; and
(b) Reinstatement for exempt for-hire and private hazmat carriers.
Reinstatement, Non-Exempt For-Hire Carriers, Brokers and Freight
Forwarders
Under the current system, non-exempt for-hire carriers, brokers and
freight forwarders pay an $80 fee and file a written request for
reinstatement. Under the proposed system, these carriers would request
reinstatement using Form MCSA-1, pay a $10 fee and make the applicable
insurance filing. The FMCSA assumed that the cost of this requirement
is minimal, and is approximately equal to that of filing proof of
insurance ($4). The Agency determined that it incurs slightly less than
$10 per request to process reinstatement requests. The $10
reinstatement fee would be sufficient to defray Agency processing
costs. The FMCSA calculated savings by non-exempt for-hire carriers,
brokers and freight forwarders applying for reinstatement by
multiplying the $70 reduction in fees for these carriers by the number
of affected carriers to arrive at a 10-year discounted saving of
$4,958,302. This industry benefit would be offset by an equal cost to
the Agency due to the loss of revenues from the fees.
Reinstatement, Exempt For-Hire and Private Hazmat Carriers
Under the current system, exempt for-hire and private hazmat
carriers do not file insurance-related reinstatements. Under the
proposed system, these carriers would pay a $10 fee and file updated
information. Using 2008 MCMIS data, FMCSA calculated that 2.58 percent
of exempt for-hire and private hazmat carriers would let their
insurance coverage lapse and later file reinstatement requests. The
Agency determined that it incurs slightly less than $10 per request to
process reinstatement requests. The $10 reinstatement fee would be
sufficient to defray Agency processing costs. The FMCSA calculated fees
associated with this activity by multiplying the $10 fee by the number
of affected carriers to arrive at a 10-year discounted cost of
$150,176. This industry cost would be offset by an equal benefit to the
Agency due to the gain in revenues from the fees.
There is a resource cost to industry associated with making these
reinstatement requests. As above, FMCSA assumed that the costs
associated with completing the applicable filings would equal the costs
associated with filing proof of insurance and process agent
designations ($4). The FMCSA calculated discounted costs to industry of
$60,070 associated with filing activities over the 10-year analysis
period.
The FMCSA calculated discounted costs to the Agency of $135,158
associated with processing exempt for-hire and private hazmat carrier
reinstatements over the 10-year analysis period.
Cumulative Reinstatement Costs and Benefits
Changes in fees for reinstatement of USDOT Numbers and/or
commercial operating authority resulted in a total 10-year saving to
industry of $4,808,126. This saving to industry, however, is offset by
an equal cost to FMCSA in lost revenues from fees associated with
reinstatements. The proposed changes
[[Page 66527]]
resulted in total 10-year resource costs of $60,070 to industry and
$135,158 to FMCSA for a total resource cost to society of $195,229.
5. Transfers and Name Changes
Under the URS, the Agency would no longer require ownership/
management/control certification when processing applicant requests for
name, address, or form of business changes. Motor carriers will be
required to report changes in management when completing their Form
MCSA-1 biennial updates, and would retain their existing USDOT Number.
No new or replacement USDOT Numbers would be issued. There were 196
requests for transfers of operating authority filed with FMCSA in 2008.
Each of the carriers who requested a transfer of operating authority
paid a $300 filing fee to FMCSA for this activity. Under the URS SNPRM,
FMCSA would not accept or review transfer requests. Based on the 2008
data projected to 2014, FMCSA estimated discounted industry benefits of
$509,168 over 10 years from the elimination of the transfer fee. This
benefit to industry would be offset by an equal cost to the Agency
resulting from the loss of revenues from the transfer request filing
fee.
The FMCSA proposes to eliminate the $14 filing fee currently
assessed to non-exempt for-hire motor carriers and others that change
their business names. This action would result in a cost savings to
industry and a matching cost to the Agency. In 2008, the Agency
processed 11,141 name change requests. Based on the 2008 data,
projected to 2014, FMCSA estimated 10-year discounted benefits to
industry of $1,345,722 over the 10-year period. This $1,345,722 benefit
to industry would be offset by an equal cost to the Agency resulting
from the loss of name change filing fee revenues.
Elimination of transfer and name change filing fees resulted in a
total 10-year cost savings to industry of $509,168. The cost savings to
industry due to changes in filing fees, however, would be offset by an
equal cost to the Agency resulting from reduced revenues from these
filing fees. Therefore, the projected societal costs due to elimination
of the fees are zero. These proposed changes resulted in no resource
costs to either industry or FMCSA. The total reduction in fees for
transfers and name changes is the sum of $509,168 and $1,345,722, or
$1,854,890; this sum is a gain to industry and an equal loss to FMCSA.
6. The New Application Form--MCSA-1
The new Form MCSA-1 would replace existing FMCSA registration
forms. There would be a time cost savings for those who presently file
multiple application forms. New registrant non-exempt for-hire motor
carriers currently file an OP-1 series form and the MCS-150 form with
FMCSA. Property brokers and freight forwarders file an OP-1 series form
only. All other carriers file forms in the MCS-150 series.
The FMCSA estimated an average completion time of just over 20
minutes each \15\ for the MCS-150 series forms and 2 hours for the OP-1
forms. The FMCSA determined that 56.45 percent of new registrants file
OP-1 series forms, and 92.45 percent of new registrants file MCS-150
forms. Based on these percentages, FMCSA calculated the current average
new registrant filing completion time as just under 1 hour and 26
minutes.
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\15\ The MCS-150 form has been estimated to require 20 minutes,
and the MCS-150B form a slightly longer 26 minutes. Because only
about 2 percent of carriers file the MCS-150B, the average is very
close to 20 minutes. There is also an MCS-150C form, but it is much
less frequently used.
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The FMCSA proposes to require all new registrants except a Mexico-
domiciled motor carrier requesting to conduct long-haul operations
within the United States to file only Form MCSA-1. Based on field
testing, FMCSA estimated that it would take those new registrants who
would have used the OP-1 form 2 hours and 10 minutes to complete the
new form. The FMCSA assumes that the time required for entities who
would have used only the MCS-150 or 150B would not change if they used
the MCSA-1 form instead. Multiplying 2 hours and 10 minutes by 56.45
percent (the percent of new registrants that file OP-1 series forms),
and adding just over 20 minutes times the difference between 92.45
percent (the percent of new registrants that file MCS-150 forms) and
56.45 percent yields just over 1 hour and 20 minutes. Thus, FMCSA
estimated a weighted average time savings of almost 6 minutes for each
new registrant (that is, just under 1 hour and 26 minutes minus just
over 1 hour and 20 minutes).
Using its adjusted average hourly wage estimate for drivers \16\
and its projection of new registrants, FMCSA estimated a 10-year
discounted resource cost savings to industry of $1,354,631.
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\16\ Note: This activity may be performed by someone other than
a driver. However, FMCSA assumed the person performing the activity
would earn a wage similar to that of a driver and used the driver
wage rate as the best indicator of cost for this activity.
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The FMCSA also calculated Agency time saved associated with
processing the new MCSA-1 form. Based on the Agency's estimate that,
due to reductions in data entry, it would save 20 minutes of processing
time from not using the OP-1 series form, and its determination that
56.45 percent of new registrants file the form, FMCSA estimated an 11-
minute time savings per applicant. The FMCSA multiplied the adjusted
average hourly wage estimate for the Agency by the time saved
processing the new MCSA-1 form and the number of annual new registrants
to obtain a 10-year discounted resource cost savings of $3,391,089.
The proposed changes would result in total 10-year resource cost
savings to industry of $1,354,621 and resource cost savings to FMCSA of
$3,391,089. The sum of the resource cost savings to industry and FMCSA
equals $4,745,720, which is the total benefit to society.
7. Mandatory Electronic Filing of the MCSA-1
By requiring electronic submissions, FMCSA expects to reduce
processing costs. Mandating electronic filing would also offer a
benefit to most carriers through a reduction of the time required for
them to receive registration and/or operating authority.\17\ Electronic
submissions have the additional benefit of reducing erroneous data
through automated data quality checks and increasing the transparency
of the data included in the URS. The Agency believes that the cost
savings resulting from reduced labor time and paperwork, and the
benefits associated with reducing erroneous data and improving data
transparency, would be difficult to achieve without mandating
electronic filing. This change, however, could impose a burden on
entities that do not have the means to file electronically or that do
not wish to file electronically.
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\17\ Carriers subject to vetting might experience a more
prolonged registration process.
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To assess this potential burden, and to determine what alternatives
would be available to small entities, FMCSA conducted a detailed cost/
benefit analysis, ``Report on Benefits and Costs of Mandatory
Electronic Filing for FMCSA's Unified Registration System'', which is
included as Appendix A to the regulatory evaluation. The Agency
calculated costs and benefits associated with electronic filing by
using estimates of the amount of time required to file the form and the
number of expected filers. The present value of the benefits resulting
from mandatory electronic
[[Page 66528]]
filing is $36,190,320 in benefits to FMCSA and $1,964,186 in benefits
to industry. The industry also experiences a resource cost of $538,894.
Thus, the net present value of the benefits associated with requiring
mandatory electronic filing less the costs results in a total net
benefit to society of $37,615,613 over a 10-year period.
The Agency realizes that a mandatory electronic filing requirement
may involve a change of business practices for a small number of
regulated entities under its jurisdiction; and with respect to these
entities, we invite comments about the following questions:
(1) What would be the impact (benefits or hardships) on applicants
of a mandatory electronic filing requirement?
(2) Would these impacts be different 4 years after the publication
date of this notice? If so, how?
(3) If the impacts are expected to be adverse, how can they be
mitigated?
(4) Should FMCSA provide a phase-in period for complying with the
mandatory electronic filing requirement? If yes, please recommend
appropriate phase-in criteria and time periods, stated in terms
relative to the publication date of the final rule.
(5) If you believe electronic filing would be burdensome, would the
benefits of obtaining operating authority more quickly offset any
potential costs associated with electronic filing?
9. Total Net Benefits From the URS SNPRM
The FMCSA calculated the net benefits of the proposed rule by
subtracting the total 10-year cost from the total 10-year benefits for
each provision. Table 5 presents the net benefits of the proposed rule
for each provision presented above. The cost to industry associated
with fee changes is offset by an equal gain to FMCSA due to increased
revenues from fees. Therefore, the impact to society from the change in
fees is zero. Net benefits are estimated to be -$23.0 million for the
industry and $42.6 million for FMCSA. This results in total societal
net benefits of the URS SNPRM of $19.6 million. The industry would
experience a total increase in fees of -$58.6 million (including total
fees paid and fees saved). This increase in fees to the industry is
offset by a total $58.6 million increase in fees received by FMCSA
(including fees lost and fees received).
Table 5--Net Benefits of URS Proposed Rule
[10-year present value]
----------------------------------------------------------------------------------------------------------------
Net benefits Net fees
URS rule provision ---------------------------------------------------------------
Industry Agency Industry Agency
----------------------------------------------------------------------------------------------------------------
Mandatory Electronic Filing..................... $1,425,292 $36,190,320 $0 $0
Eliminating Transfer/Name Change Requirements... 0 0 1,854,890 1,854,890
New Registrant Fee.............................. 0 0 -63,583,722 63,583,722
Insurance Filing................................ -676,723 0 -1,691,808 1,691,808
Process Agent Filing............................ -25,067,012 3,130,736 0 0
Cancellations and Reinstatements................ -60,070 -135,158 4,808,126 4,808,126
New MCSA-1 Application Form..................... 1,354,631 3,391,089 0 0
Net Benefits.................................... -23,023,883 42,576,988 -58,612,513 58,612,513
---------------------------------------------------------------
Societal Net Benefits....................... 19,553,105
0
----------------------------------------------------------------------------------------------------------------
Note: Numbers may not add due to rounding.
V. Appendix to the Preamble--Proposed Form MCSA-1 and Instructions
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BILLING CODE 4910-EX-C
[[Page 66579]]
VI. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has preliminarily determined that this proposed rule is a
significant regulatory action within the meaning of Executive Order
12866, and is significant within the meaning of Department of
Transportation regulatory policies and procedures (DOT Order 2100.5
dated May 22, 1980; 44 FR 11034, February 26, 1979) because it is
expected to generate significant public interest. However, it is
anticipated that the economic impact of the revisions in this SNPRM
would not exceed the annual $100 million threshold for economic
significance. The Office of Management and Budget (OMB) has reviewed
this proposed rule.
Regulatory Flexibility Act
The Regulatory Flexibility Act [Pub. L. 96-354, 5 U.S.C. 601-612]
requires Federal agencies to take small businesses' concerns into
account when developing, writing, publicizing, promulgating, and
enforcing regulations. To achieve this, the Act requires that agencies
detail how they have met these concerns through a Regulatory
Flexibility Analysis (RFA). An initial RFA, which accompanies an NPRM,
must include six elements. The Agency has listed these elements below
and addressed each element with regard to FMCSA's SNPRM.
(1) A description of the reasons why action by the Agency is being
considered. The FMCSA is taking this action in response to section 103
of the ICC Termination Act of 1995 (ICCTA), as amended by section 4304
of SAFETEA-LU, which, among other things, requires the Secretary of
Transportation (Secretary) to propose regulations to replace four
current identification and registration systems with a single, online,
Federal system. The purpose of this proposal is to consolidate and
simplify current Federal registration processes and to increase public
accessibility to data about interstate motor carriers, property
brokers, freight forwarders, and other entities. Pursuant to the
statutory mandate, FMCSA proposes to charge registration and
administrative fees that would enable FMCSA to recoup the costs
associated with processing registration applications and administrative
filings and maintaining this system.
(2) A succinct statement of the objectives of, and legal basis for,
the proposed rule. The ICCTA created a new 49 U.S.C. 13908 directing
``[t]he Secretary, in cooperation with the States, and after notice and
opportunity for public comment,'' * * * to ``issue regulations to
replace the current Department of Transportation identification number
system, the single State registration system under section 14504, the
registration system contained in this chapter, and the financial
responsibility information system under section 13906 with a single,
on-line, Federal system.''
Title 49 U.S.C. 13908(d) authorizes the Secretary to establish,
under sections 9701 of title 31, United States Code, a fee system for
the Unified Carrier Registration System according to certain guidelines
providing for fee limits for registration, filing evidence of financial
responsibility and filing information regarding agents for service of
process.
These directives specifically require FMCSA to undertake some of
the actions in this proposal. The remaining related changes facilitate
the smooth operation of a unified Federal on-line registration system.
(3) A description and, where feasible, an estimate of the number of
small entities to which the proposed rule would apply. The FMCSA would
subject all motor carriers engaging in interstate commerce (private,
exempt and non-exempt for-hire) to this proposal.
Not all carriers are required to report their revenue to the
Agency; but all carriers are required to provide the Agency with the
number of power units they operate when they apply for operating
authority and to update this figure biennially. Because FMCSA does not
have direct revenue figures, power units serve as a proxy to determine
the carrier size that would qualify as a small business given the SBA's
revenue threshold. In order to produce this estimate, it is necessary
to determine the average revenue generated by a power unit. With
regards to truck power units, the Agency determined in the 2003 Hours
of Service Rulemaking RIA \18\ that a power unit produces about
$172,000 in revenue annually (adjusted for inflation).\19\ The Small
Business Administration (SBA) defines a small entity in the truck
transportation sub-sector (North American Industry Classification
System [NAICS] 484) as an entity with annual revenue of less than $25.5
million [13 CFR 121.201].\20\ This equates to 148 power units
($25,500,000/$172,000). Thus, FMCSA considers motor carriers with 148
power units or less to be a small business for SBA purposes.
---------------------------------------------------------------------------
\18\ Regulatory Analysis for: Hours of Service of Drivers;
Driver Rest and Sleep for Safe Operations, Final Rule-Federal Motor
Carrier Safety Administration. 68 FR 22456-Published 4/23/2003.
\19\ The 2000 TTS Blue Book of Trucking Companies, number
adjusted to 2008 dollars for inflation.
\20\ U.S. Small Business Administration Table of Small Business
Size Standards matched to North American Industry Classification
(NAIC) System codes, effective August 22, 2008. See NAIC subsector
484, Truck Transportation.
---------------------------------------------------------------------------
With regards to bus power units, the Agency conducted a preliminary
analysis to estimate the average number of power units (PUs) for a
small entity earning $7 million annually, based on an assumption that a
passenger carrying CMV generates annual revenues of $150,000. This
estimate compares reasonably to the estimated average annual revenue
per power unit for the trucking industry ($172,000). A lower estimate
was used because buses generally do not accumulate as many vehicle
miles traveled (VMT) per power units as trucks,\21\ and it is assumed
therefore that they would generate less revenue on average. The
analysis concluded that passenger carriers with 47 PUs or fewer
($7,000,000 divided by $150,000/PU = 46.7 PU) would be considered small
entities. The Agency then looked at the number and percentage of
passenger carriers registered with FMCSA that would fall under that
definition (of having 47 PUs or less). The results show that 28,838
\22\ (or 99%) of all active registered passenger carriers have 47 PUs
or less. Therefore, the overwhelming majority of passenger carriers
would be considered small entities.
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\21\ FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and
20; http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008Large
TruckandBusCrashFacts.aspx
\22\ FMCSA MCMIS snapshot on 2/19/2010.
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FMCSA believes that this 150 power unit figure would be applicable
to private carriers as well: Because the sizes of the fleets they are
able to sustain are indicative of the overall size of their operations,
large CMV fleets can generally only be managed by large firms. There is
a risk, however, of overstating the number of small businesses because
the operations of some large non-truck or bus firms may require only a
small number of CMVs.
The FMCSA believes the proposed rule would affect roughly 600,000
small carriers with recent activity annually on an ongoing basis.\23\
The Agency expects a larger number of affected entities in the first
year of the analysis period when exempt for-hire carriers with
[[Page 66580]]
recent activity and private carriers with recent activity make
administrative filings for the first time. The estimated first-year
costs of the URS rule on new entrants would be equal to 0.250 percent
of average revenue for a trucking motor carrier and 0.287 percent of
average revenue for a passenger motor carrier. The first-year costs of
the URS SNPRM on carriers with recent activity would be equal to 0.079
percent of average revenue for a trucking motor carrier and 0.091
percent of average revenue for a passenger motor carrier. The URS rule
is thus not expected to have a significant economic impact on small new
entrants and carriers with recent activity.
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\23\ This population estimate originates from tables 1 and 2,
above. FMCSA used the median year estimate to account for the net
growth in new entrants and the carriers with recent activity.
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(4) A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirements and the type of professional skills necessary for
preparation of the report or record. This proposed rule primarily
concerns submission of information to FMCSA in support of registration.
While this includes recordkeeping and reporting for non-exempt for-hire
carriers, there would only be the replacement of one type of reporting
with another. Therefore, there would be no increase in reporting or
recordkeeping requirements for non-exempt for-hire carriers. Non-exempt
for-hire carriers are already required to pay a $300 registration fee,
so there would be no change in financial burden for these entities as a
result of the Agency's implementation of the proposed rule. Private and
exempt for-hire carriers would have the same replacement reporting and
recordkeeping requirements as non-exempt for-hire carriers regarding
general registration but would also have to designate a process agent
for the first time under the proposed rule. Exempt for-hire and private
hazmat carriers would have to file proof of insurance for the first
time. These requirements would be new but would not impose significant
reporting or recordkeeping requirements on the affected entities, as
the filings would be made by insurance companies on the carriers'
behalf. New entrant exempt for-hire carriers, private carriers, and
other entities are not currently required to pay a registration fee but
would be required to pay a $300 registration fee under the proposed
rule. For nearly all affected entities, this fee would represent a
small fraction (well below one percent, even for very small firms that
do little more than operate a single truck) of their annual revenues;
on an annualized basis the cost would be even smaller. The FMCSA would
require property brokers and freight forwarders to register with FMCSA
and obtain USDOT Numbers under the proposed rule, which is a new
requirement. However, these entities already register with FMCSA and
the USDOT Number would simply be a replacement for the MC Numbers or FF
Numbers currently issued to brokers and freight forwarders,
respectively. Therefore, FMCSA does not believe the new reporting or
recordkeeping requirements would impose any significant burden. Like
non-exempt for-hire carriers, new entrant brokers and freight
forwarders are currently required to pay a $300 registration fee, so
there would be no change in financial burden on these entities.
The FMCSA does not expect that any special skills for new
registrants would be necessary beyond the ability to access the
Internet and respond to questions with information about their
organization and operations.
(5) An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule. The FMCSA is aware of Federal rules that may duplicate
this SNPRM to some extent for hazardous materials motor carriers
required to register. Although some basic identification information
may be filed with both FMCSA and the Pipeline and Hazardous Materials
Safety Administration (PHMSA), another USDOT modal administration,
there is no conflict. PHMSA requires shippers and transporters of
certain types and quantities of hazardous materials to register in its
Hazardous Materials Registration System. Transportation modes required
to register with PHMSA include motor carriers, airlines, ship lines,
and railroads. The PHMSA Hazardous Materials Registration System cannot
be combined with URS because entities other than those under FMCSA
jurisdiction must register in PHMSA's system.
(6) A description of any significant alternatives to the proposed
rule which minimize any significant impacts on small entities. The
Agency did not identify any significant alternatives to the rule that
could lessen the burden on small entities without compromising its
goals or the Agency's statutory mandate. Because small businesses are
such a large part of the demographic the Agency regulates, providing
alternatives to small business to permit noncompliance with FMCSA
regulations is not feasible and not consistent with sound public
policy.
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 private sector.
Any Agency promulgating a rule likely to result in a Federal mandate
requiring expenditures by a State, local, or Tribal government or by
the private sector of $141.3 million or more in any one year must
prepare a written statement incorporating various assessments,
estimates, and descriptions that are delineated in the Act. The FMCSA
has preliminarily determined that the changes proposed in this SNPRM
would not have an impact of $141.3 million or more in any one given
year.
National Environmental Policy Act
The Agency analyzed this proposed rule for the purpose of the
National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et
seq.) and preliminarily determined under our environmental procedures
Order 5610.1, issued March 1, 2004 (69 FR 9680), that this action is
categorically excluded (CE) under Appendix 2, paragraphs 6.e and 6.h of
the Order from further environmental documentation. The CE under
Appendix 2, paragraph 6.e relates to establishing regulations and
actions taken pursuant to the requirements concerning applications for
operating authority and certificates of registration. The CE under
Appendix 2, paragraph 6.h relates to establishing regulations and
actions taken pursuant to the requirements implementing procedures to
collect fees that will be charged for motor carrier registrations and
insurance for the following activities: (1) Application filings; (2)
records searches; and (3) reviewing, copying, certifying, and related
services. In addition, the Agency believes that this proposed action
includes no extraordinary circumstances that would have any effect on
the quality of the human environment. Thus, the SNPRM does not require
an environmental assessment or an environmental impact statement.
The FMCSA also has analyzed this SNPRM under the Clean Air Act, as
amended (CAA), sec. 176(c) (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this proposal is exempt from the CAA's general conformity
requirement because it involves policy development and rulemaking
activities regarding registration of regulated entities with FMCSA for
commercial,
[[Page 66581]]
safety and financial responsibility purposes. See 40 CFR
93.153(c)(2)(vi). The proposed changes would not result in any
emissions increases nor would they have any potential to result in
emissions that are above the general conformity rule's de minimis
emission threshold levels. Moreover, it is reasonably foreseeable that
the proposed changes would not increase total CMV mileage or change the
routing of CMVs, how CMVs operate, or the CMV fleet-mix of motor
carriers. This SNPRM was mandated under sec. 103 of the ICCTA. It would
consolidate and simplify the Federal registration processes and
increase public accessibility to data about interstate and foreign
motor carriers, property brokers, freight forwarders and other
entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal Agency must obtain approval from OMB for each
collection of information it conducts, sponsors, or requires through
regulations. The FMCSA analyzed this proposal and preliminarily
determined that its implementation would streamline the information
collection burden on motor carriers and other regulated entities,
relative to the baseline, or current paperwork collection processes.
This includes streamlining the FMCSA registration, insurance and
designation of process agent filing processes and implementing
mandatory electronic online filing of these applications, as well as
eliminating some outdated filing requirements. The above information
collection burden reductions would be partially offset in later years
because FMCSA plans to implement new filing requirements upon certain
groups of carriers/entities within the industry during the first year.
This is primarily due to the assumption that all existing private and
exempt for-hire carriers would file proof of process agent designation
in the first year and the existing private motor carriers transporting
hazardous materials interstate and exempt-for-hire carriers would file
evidence of insurance, as a result of the new requirements set forth in
this SNPRM. However, once the initial process agent and insurance
filing requirements for existing carriers are met, the overall net
result would be a more streamlined process in future years for FMCSA
registration of motor carrier, broker, freight-forwarder and other
applicants the Agency regulates.
This proposal would create a new information collection to cover
the requirements set forth in proposed FMCSA Form MCSA-1. There are
also five approved information collections that would be affected by
this SNPRM as follows: (1) OMB Control No. 2126-0013, titled ``Motor
Carrier Identification Report;'' (2) OMB Control No. 2126-0015, titled
``Designation of Agents, Motor Carriers, Brokers and Freight
Forwarders;'' (3) OMB Control No. 2126-0016, titled ``Licensing
Application for Motor Carrier Operating Authority;'' (4) OMB Control
No. 2126-0017, titled ``Financial Responsibility, Trucking, and Freight
Forwarding;'' and (5) OMB Control No. 2126-0019, titled ``Application
for Certificate of Registration for Foreign Motor Carriers and Foreign
Motor Private Carriers.'' The proposed new MCSA-1 Form would replace
the forms covered by 2126-0013, 0016, and 0019. The proposed rule would
also increase the number of entities that would be required to file
information on process agents (2126-0015) and insurance coverage (2126-
0017).
The total burden for the five approved information collections
noted above is 248,355 hours. The table below captures the current and
proposed burden hours associated with the five approved information
collections.
Current and Proposed Information Collection Burdens
----------------------------------------------------------------------------------------------------------------
Burden hours
OMB Approval No. currently Burden hours Change
approved proposed \1\
----------------------------------------------------------------------------------------------------------------
2126-NEW................................................. 0 127,728 127,728
2126-0013................................................ 109,005 0 (109,005)
2126-0015................................................ 14,835 69,373 54,538
2126-0016................................................ 55,095 0 (55,095)
2126-0017................................................ 66,960 81,193 (14,233)
2126-0019................................................ 2,460 0 (2,460)
------------------------------------------------------
Total................................................ 248,355 278,293 29,938
----------------------------------------------------------------------------------------------------------------
\1\ The estimates in this column reflect first year information collection burdens. Many of these information
collections would significantly decrease in later years.
An explanation of how each of the six information collections shown
above would be affected by this proposal is provided below.
OMB Control No. 2126-NEW. Unified Registration System, Form MCSA-1.
The new form would replace the forms covered by three existing
information collections. The estimated time to complete the form for
new entrants, file biennial updates, and request changes is 127,728
burden hours [82,115 hours for new registrants (61,280 new motor
carriers, brokers, freight forwarders, and other entities x 1.34 hours
per form) + 43,560 hours for biennial updates (261,360 registrants
required to file in year one x 10 minutes per form, divided by 60
minutes/hr) + 2,053 hours for name/address change requests (12,317
requests x 0.167 hours)].
OMB Control No. 2126-0013. Motor Carrier Identification Report,
Applications for USDOT Number. The Agency anticipates that all of the
requirements under this information collection covering the MCS-150,
MCS-150B, and MCS-150C forms would be folded into OMB Control No. 2126-
NEW (see above) and the forms replaced by the MCSA-1.
OMB Control No. 2126-0015. Designation of Agents, Motor Carriers,
Brokers, and Freight Forwarders. This information collection, which
requires motor carriers and others to file the name of process agents
that can be served with legal papers, is currently approved at 14,835
burden hours. This information collection would increase to 69,373
burden hours [327,226 new filers x 10 minutes per filing/60 minutes/
hr]. This increase is due to FMCSA's proposal to extend the designation
of process agent filing requirement to include private motor carriers
and exempt for-hire motor carriers. The FMCSA assumes that no existing
private or exempt for-hire motor carriers currently have process agents
on file and that all would
[[Page 66582]]
designate agents with FMCSA as a result of the proposed requirements
set forth in this SNPRM.
OMB Control No. 2126-0016. Licensing Applications for Motor Carrier
Operating Authority. This information collection, which covers for-hire
carriers, freight forwarders and property brokers, is currently
approved at 55,095 burden hours. Under this proposal, all requirements
included in this information collection would be folded into OMB
Control No. 2126-NEW (see above) and the forms replaced by the MCSA-1.
Basic identification information that registrants complete on these
forms and MCS-150 forms will only need to be completed once under the
proposed rule.
OMB Control No. 2126-0017. Financial Responsibility--Motor
Carriers, Freight Forwarders and Brokers. This information collection,
which in almost all cases requires insurers to file a certification of
coverage for certain entities, is currently approved at 66,960 burden
hours. Changes would be required to this information collection due to
FMCSA's proposal to require exempt for-hire motor carriers and private
interstate motor carriers of hazardous materials to file proof of
liability insurance with FMCSA. As all but a few of these filings are
electronic (self-insurance filings will still be done on paper), the
time required would be adjusted downward to reflect the efficiencies
gained. The revised burden would be 81,193 hours [485,956 filings x 10
minutes/60 plus 5 self-insurance filings x 40 hrs]
OMB Control No. 2126-0019. Application for Certificate of
Registration for Foreign Motor Carriers and Foreign Motor Private
Carriers. Under this proposal, the requirements included in this
approved information collection for the OP-2 form, which covers
operating authority for Mexico-domiciled carriers that operate solely
in the commercial zones on the border, would be folded into OMB Control
No. 2126-NEW (see above), resulting in a net decrease of 2,460 burden
hours. The FMCSA will discontinue this information collection after the
final rule is approved for this rulemaking.
The proposals contained in this SNPRM, affecting five currently
approved information collections and one new information collection,
would result in a net increase of 10,787 burden hours in the Agency's
information collection budget for the first year.
Additional information collection activity and possibly additional
OMB forms may be identified and developed as the rulemaking process
proceeds. If so, an analysis of any additional information collection
activity would be developed by FMCSA. The Agency also would seek OMB
approval for any additional burdens proposed, if not already covered by
existing OMB approvals given to the Agency.
Executive Order 12630 (Taking of Private Property)
This proposed rule would not affect 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 12988 (Civil Justice Reform)
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
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, which 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 FMCSA has
preliminarily determined that this proposed rule is not a covered
regulatory action as defined under Executive Order 13045. This
determination is based upon the fact that this proposed rule is not
economically significant under Executive Order 12866, because the
changes proposed in this rule would not have an impact of $100 million
or more in any one given year. This proposal would not constitute an
environmental health risk or safety risk that would disproportionately
affect children.
Executive Order 13132 (Federalism)
This proposed rule has been analyzed in accordance with the
principles and criteria in Executive Order 13132, dated August 4, 1999
(64 FR 43255, August 10, 1999). The FMCSA consulted with State
licensing agencies participating in its PRISM program to discuss
anticipated impacts of the May 2005 NPRM upon their operations. The
Agency has taken into consideration their comments in its
decisionmaking process for this SNPRM. Thus, FMCSA has preliminarily
determined that this proposal would not have significant Federalism
implications or limit the policymaking discretion of the States.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program.
Executive Order 13211 (Energy Supply, Distribution, or Use)
The FMCSA has analyzed this proposed rule under Executive Order
13211, ``Actions Concerning Regulations That Significantly Affect
Energy Supply, Distribution, or Use.'' This proposal is not a
significant energy action within the meaning of section 4(b) of the
Executive Order. This proposal is a procedural action, is not
economically significant, and would not have a significant adverse
effect on the supply, distribution, or use of energy.
Privacy Impact Analysis
The FMCSA conducted a privacy impact assessment of this rule as
required by section 522(a)(5) of division H of the FY 2005 Omnibus
Appropriations Act, Pub. L. 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set
out as a note to 5 U.S.C. 552a]. The assessment considers any impacts
of the final rule on the privacy of information in an identifiable form
and related matters. The FMCSA has determined that this SNPRM would
impact the handling of PII. The FMCSA has also determined the risks and
effects the rulemaking might have on collecting, storing, and sharing
PII and has examined and evaluated protections and alternative
information handling processes in order to mitigate potential privacy
risks. The PIA for this proposed rulemaking is available for review in
the docket for this rulemaking.
List of Subjects
49 CFR Part 360
Administrative practice and procedure, Brokers, Buses, Freight
forwarders, Hazardous materials transportation, Highway safety,
Insurance, Motor carriers, Motor vehicle safety, Moving of household
goods, Penalties, Reporting and recordkeeping requirements, Surety
bonds.
[[Page 66583]]
49 CFR Part 365
Administrative practice and procedure, Brokers, Buses, Freight
forwarders, Motor carriers, Moving of household goods.
49 CFR Part 366
Brokers, Motor carriers, Freight forwarders, Process agents.
49 CFR Part 368
Administrative practice and procedure, Insurance, Motor carriers.
49 CFR Part 385
Administrative practices and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 387
Buses, Freight, Freight forwarders, Hazardous materials
transportation, Highway safety, Insurance, Intergovernmental relations,
Motor carriers, Motor vehicle safety, Moving of household goods,
Penalties, Reporting and recordkeeping requirements, Surety bonds.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, reporting and recordkeeping requirements.
49 CFR Part 392
Highway safety, Motor carriers.
For reasons set forth in the preamble, FMCSA proposes to amend
title 49, Code of Federal Regulations, chapter III, as follows:
1. Revise part 360 to read as follows:
PART 360--FEES FOR MOTOR CARRIER REGISTRATION AND INSURANCE
Sec.
360.1 Fees for registration-related services.
360.3 Filing fees.
360.5 Updating user fees.
Authority: 31 U.S.C. 9701; 49 U.S.C. 13908; and 49 CFR 1.73.
Sec. 360.1 Fees for registration-related services.
Certifications and copies of public records and documents on file
with the Federal Motor Carrier Safety Administration (FMCSA) will be
furnished on the following basis, pursuant to USDOT Freedom of
Information Act regulations at 49 CFR Part 7:
(a) Certificate of the Director, Office of Management and
Information Services, as to the authenticity of documents, $12;
(b) Service involved in locating records to be certified and
determining their authenticity, including clerical and administrative
work incidental thereto, at the rate of $21 per hour;
(c) Copies of the public documents, at the rate of $.80 per letter
size or legal size exposure. A minimum charge of $5 will be made for
this service; and
(d) Search and copying services requiring information technology
(IT), as follows:
(1) A fee of $50 per hour for professional staff time will be
charged when it is required to fulfill a request for electronic data.
(2) The fee for computer searches will be set at the current rate
for computer service. Information on those charges can be obtained from
the Office of Information Technology (MC-RI).
(3) Printing shall be charged at the rate of $.10 per page of
computer-generated output with a minimum charge of $1. There will also
be a charge for the media provided (e.g., CD ROMs) based on the
Agency's costs for such media.
(e) Exception. No fee shall be charged under this section to the
following entities:
(1) Any Agency of the Federal Government or a State government or
any political subdivision of any such government for access to or
retrieval of information and data from the Unified Carrier Registration
System for its own use; or
(2) Any representative of a motor carrier, motor private carrier,
leasing company, broker, or freight forwarder (as each is defined in 49
U.S.C. 13102) for the access to or retrieval of the individual
information related to such entity from the Unified Carrier
Registration System for the individual use of such entity.
Sec. 360.3 Filing fees.
(a) Manner of payment. (1) Except for the insurance fees described
in the next sentence, all filing fees will be payable at the time the
application, petition, or other document is electronically filed. The
service fee for insurance, surety or self-insurer accepted certificate
of insurance, surety bond or other instrument submitted in lieu of a
broker surety bond must be charged to an insurance service account
established by FMCSA in accordance with paragraph (a)(2) of this
section.
(2) Billing account procedure. A request must be submitted to the
Office of Enforcement and Compliance, Commercial Enforcement Division
(MC-ECC) at http://www.fmcsa.dot.gov to establish an insurance service
fee account.
(i) Each account will have a specific billing date within each
month and a billing cycle. The billing date is the date that the bill
is prepared and printed. The billing cycle is the period between the
billing date in one month and the billing date in the next month. A
bill for each account which has activity or an unpaid balance during
the billing cycle will be sent on the billing date each month. Payment
will be due 20 days from the billing date. Payments received before the
next billing date are applied to the account. Interest will accrue in
accordance with 31 CFR 901.9.
(ii) The Federal Claims Collection Standards, including disclosure
to consumer reporting agencies and the use of collection agencies, as
set forth in 31 CFR part 901 will be utilized to encourage payment
where appropriate.
(iii) An account holder who files a petition in bankruptcy or who
is the subject of a bankruptcy proceeding must provide the following
information to the Office of Enforcement and Compliance, Commercial
Enforcement Division (MC-ECC) at http://www.fmcsa.dot.gov:
(A) The filing date of the bankruptcy petition;
(B) The court in which the bankruptcy petition was filed;
(C) The type of bankruptcy proceeding;
(D) The name, address, and telephone number of its representative
in the bankruptcy proceeding; and
(E) The name, address, and telephone number of the bankruptcy
trustee, if one has been appointed.
(3) Fees will be payable through the U.S. Department of the
Treasury secure payment system, Pay.gov and are made directly from the
payor's bank account or by credit/debit card.
(b) Any filing that is not accompanied by the appropriate filing
fee will be rejected.
(c) Fees not refundable. Fees will be assessed for every filing
listed in the schedule of fees contained in paragraph (f) of this
section, subject to the exceptions contained in paragraphs (d) and (e)
of this section. After the application, petition, or other document has
been accepted for filing by FMCSA, the filing fee will not be refunded,
regardless of whether the application, petition, or other document is
granted or approved, denied, rejected before docketing, dismissed, or
withdrawn.
(d) Multiple authorities. (1) A separate filing fee is required for
each type of authority sought in each transportation mode, such as
broker authority for motor property carriers.
(2) Separate fees will be assessed for the filing of temporary
operating authority applications as provided in paragraph (f)(2) of
this section, regardless of whether such applications
[[Page 66584]]
are related to an application for corresponding permanent operating
authority.
(e) Waiver or reduction of filing fees. It is the general policy of
the Federal Motor Carrier Safety Administration not to waive or reduce
filing fees except as follows:
(1) Filing fees are waived for an application which is filed by a
Federal government agency, or a State or local government entity. For
purposes of this section the phrases ``Federal government agency'' or
``government entity'' do not include a quasi-governmental corporation
or government subsidized transportation company.
(2) Filing fees are waived for a motor carrier of passengers that
receives a grant from the Federal Transit Administration either
directly or through a third-party contract to provide passenger
transportation under an agreement with a State or local government
pursuant to 49 U.S.C. section 5307, 5310, 5311, 5316 or 5317.
(3) The FMCSA will consider other requests for waivers or fee
reductions only in extraordinary situations and in accordance with the
following procedure:
(i) When to request. At the time that a filing is submitted to
FMCSA the applicant may request a waiver or reduction of the fee
prescribed in this part. Such request should be addressed to the
Director, Office of Information Technology.
(ii) Basis. The applicant must show the waiver or reduction of the
fee is in the best interest of the public, or that payment of the fee
would impose an undue hardship upon the requestor.
(iii) FMCSA action. The Director, Office of Information Technology,
will notify the applicant of the decision to grant or deny the request
for waiver or reduction.
(f) Schedule of filing fees:
------------------------------------------------------------------------
Type of proceeding Fee
------------------------------------------------------------------------
Part I: Registration:
(1)....................... An application for $300.
USDOT Registration
pursuant to 49 CFR
part 390, subpart C.
(2)....................... An application for $100.
motor carrier
temporary authority
to provide emergency
relief in response to
a national emergency
or natural disaster
following an
emergency declaration
under Sec. 390.23
of this subchapter.
(3)....................... Biennial update of $0.
registration.
(4)....................... Request for change of $0.
name, address, or
form of business.
(5)....................... Request for $0.
cancellation of
registration.
(6)....................... Request for $10.
registration
reinstatemen.
(7)....................... Designation of process $0.
agen.
Part II: Insurance:
(8)....................... A service fee for $10 per accepted
insurer, surety, or certificate,
self-insurer accepted surety bond or
certificate of other
insurance, surety instrument
bond, and other submitted in
instrument submitted lieu of a
in lieu of a broker broker surety
surety bond. bond.
(9)....................... (i) An application for [Reserved].
original
qualification as self-
insurer for bodily
injury and property
damage insurance
(BI&PD).
(ii) An application [Reserved].
for original
qualification as self-
insurer for cargo
insurance.
(iii) Fee for [Reserved].
quarterly self-
insurance monitoring
filing.
(iv) Fee for annual [Reserved].
self-insurance
monitoring filing.
------------------------------------------------------------------------
Sec. 360.5 Updating user fees.
(a) Update. Each fee established in this subpart may be updated, as
deemed necessary by FMCSA.
(b) Publication and effective dates. Notice of updated fees will be
published in the Federal Register in a final rule and will become
effective 30 days after publication.
(c) Payment of fees. Any person submitting a filing for which a
filing fee is established must pay the fee applicable on the date of
the filing or request for services.
(d) Method of updating fees. Each fee shall be updated by updating
the cost components comprising the fee. However, fees shall not exceed
the maximum amounts established by law. Cost components shall be
updated as follows:
(1) Direct labor costs shall be updated by multiplying base level
direct labor costs by percentage changes in average wages and salaries
of FMCSA employees. Base level direct labor costs are direct labor
costs determined by the cost study in Regulations Governing Fees For
Service, 1 I.C.C. 2d 60 (1984), or subsequent cost studies. The base
period for measuring changes shall be April 1984 or the year of the
last cost study.
(2) Operations overhead shall be developed on the basis of current
relationships existing on a weighted basis, for indirect labor
applicable to the first supervisory work centers directly associated
with user fee activity. Actual updating of operations overhead will be
accomplished by applying the current percentage factor to updated
direct labor, including current governmental overhead costs.
(3)(i) Office general and administrative costs shall be developed
on the basis of current levels costs, i.e., dividing actual office
general and administrative costs for the current fiscal year by total
office costs for the office directly associated with user fee activity.
Actual updating of office general and administrative costs will be
accomplished by applying the current percentage factor to updated
direct labor, including current governmental overhead and current
operations overhead costs.
(ii) The FMCSA general and administrative costs shall be developed
on the basis of current level costs; i.e., dividing actual FMCSA
general and administrative costs for the current fiscal year by total
Agency expenses for the current fiscal year. Actual updating of FMCSA
general and administrative costs will be accomplished by applying the
current percentage factor to updated direct labor, including current
governmental overhead, operations overhead and office general and
administrative costs.
(4) Publication costs shall be adjusted on the basis of known
changes in the costs applicable to publication of
[[Page 66585]]
material in the Federal Register or FMCSA Register.
(e) Rounding of updated fees. (1) Updated fees shall be rounded in
the following manner:
(i) Fees between $1 and $30 will be rounded to the nearest $1;
(ii) Fees between $30 and $100 will be rounded to the nearest $10;
(iii) Fees between $100 and $999 will be rounded to the nearest
$50; and
(iv) Fees above $1,000 will be rounded to the nearest $100.
(2) This rounding procedure excludes copying, printing and search
fees.
PART 365--RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY
2. The authority citation for part 365 is revised to read as
follows:
Authority: 5 U.S.C. 553 and 559; 49 U.S.C. 13101, 13301, 13901-
13906, 13908, 14708, 31138, and 31144; 49 CFR 1.73.
3. Amend Sec. 365.101 by revising paragraphs (a) and (h) to read
as follows:
Sec. 365.101 Applications governed by these rules.
* * * * *
(a) Applications for certificates of motor carrier registration to
operate as a motor carrier of property or passengers.
* * * * *
(h) Applications for Mexico-domiciled motor carriers to operate in
foreign commerce as for hire or private motor carriers of property
(including exempt items) between Mexico and all points in the United
States. Under NAFTA Annex 1, page I-U-20, a Mexico-domiciled motor
carrier may not provide point-to-point transportation services,
including express delivery services, within the United States for goods
other than international cargo.
* * * * *
Sec. 365.103 [Removed and reserved]
4. Remove and reserve Sec. 365.103.
5. Revise Sec. 365.105 to read as follows:
Sec. 365.105 Starting the application process: Form MCSA-1, FMCSA
Registration/Update (USDOT Number--Operating Authority Application)
(a) Each applicant must apply for operating authority by
electronically filing Form MCSA-1, FMCSA Registration/Update (USDOT
Number--Operating Authority Application), to request authority pursuant
to 49 U.S.C. 13902, 13903 or 13904 to operate as described in
paragraphs (a)(1) through (a)(3) of this section as a:
(1) Motor carrier of property or passengers,
(2) Broker of general commodities or household goods, or
(3) Freight forwarder of general commodities or household goods.
(b) A separate filing fee in the amount set forth at 49 CFR
360.3(f) is required for each type of authority sought in Sec.
365.105(a).
(c) Form MCSA-1 is an electronic application and is available,
including complete instructions, from the FMCSA Web site at http://www.fmcsa.dot.gov (Keyword ``MCSA-1'').
6. Amend Sec. 365.107 by revising paragraphs (a)(1) through (3),
and paragraphs (b) through (e), to read as follows:
Sec. 365.107 Types of applications.
(a) * * *
(1) Motor carrier of property (except household goods).
(2) Broker of general commodities or household goods.
(3) Certain types of motor carrier of passenger applications as
described in Form MCSA-1.
(b) Motor carrier of passenger ``public interest'' applications as
described in Form MCSA-1.
(c) Intrastate motor passenger applications under 49 U.S.C.
13902(b)(3) as described in Form MCSA-1.
(d) Motor carrier of household goods applications, including
Mexico- or non-North America-domiciled carrier applicants. In addition
to meeting the fitness standard under paragraph (a) of this section, an
applicant seeking authority to operate as a motor carrier of household
goods must:
(1) Provide evidence of participation in an arbitration program and
provide a copy of the notice of the arbitration program as required by
49 U.S.C. 14708(b)(2);
(2) Identify its tariff and provide a copy of the notice of the
availability of that tariff for inspection as required by 49 U.S.C.
13702(c);
(3) Provide evidence that it has access to, has read, is familiar
with, and will observe all applicable Federal laws relating to consumer
protection, estimating, consumers' rights and responsibilities, and
options for limitations of liability for loss and damage; and
(4) Disclose any relationship involving common stock, common
ownership, common management, or common familial relationships between
the applicant and any other motor carrier, freight forwarder, or broker
of household goods within 3 years of the proposed date of registration.
(e) Temporary authority (TA) for motor carriers. These applications
require a finding that there is or soon will be an immediate
transportation need that cannot be met by existing carrier service.
(1) Applications for TA will be entertained only when an emergency
declaration has been made pursuant to Sec. 390.23 of this subchapter.
(2) Temporary authority must be requested by filing Form MCSA-1
with the Division Office that has jurisdiction over the State in which
the applicant's principal place of business is located.
(3) Applications for temporary authority are not subject to
protest.
(4) Motor carriers granted temporary authority must comply with
financial responsibility requirements under part 387 of this
subchapter.
(5) Only a U.S.-domiciled motor carrier is eligible to receive
temporary authority.
7. Amend Sec. 365.109 by revising paragraphs (a)(5) and (6) and
(b) to read as follows:
Sec. 365.109 FMCSA review of the application.
(a) * * *
(5) All applicants must file the appropriate evidence of financial
responsibility within 90 days from the date notice of the application
is published in the FMCSA Register:
(i) Form BMC-91 or 91X or BMC 82 surety bond--Bodily injury and
property damage (motor property and passenger carriers; and freight
forwarders that provide pickup or delivery service directly or by using
a local delivery service under their control),
(ii) Form BMC-84--Surety bond or Form BMC-85--trust fund agreement
(property brokers of general commodities and household goods).
(iii) Form BMC-34 or BMC 83 surety bond--Cargo liability (household
goods motor carriers and household goods freight forwarders).
(6) Applicants also must submit Form BOC-3--Designation of Agents--
Motor Carriers, Brokers and Freight Forwarders--within 90 days from the
date notice of the application is published in the FMCSA Register.
* * * * *
(b) A summary of the application will be published in the FMCSA
Register to give notice to the public in case anyone wishes to oppose
the application.
8. Add Sec. 365.110 to read as follows:
Sec. 365.110 New Entrant Safety Assurance Program.
For motor carriers operating commercial motor vehicles as defined
in 49 U.S.C. 31132, operating authority obtained under procedures in
this part does not become permanent until the applicant satisfactorily
completes the
[[Page 66586]]
New Entrant Safety Assurance Program in part 385 of this subchapter.
9. Amend Sec. 365.111 by revising paragraph (a) to read as
follows:
Sec. 365.111 Appeals to rejections of the application.
(a) An applicant has the right to appeal rejection of the
application. The appeal must be filed at the FMCSA, Office of the
Director of Information Technology, 1200 New Jersey Ave., SE.,
Washington, DC 20590, within 10 days of the date of the letter of
rejection.
* * * * *
10. Revise Sec. 365.119 to read as follows:
Sec. 365.119 Opposed applications.
If the application is opposed, opposing parties are required to
send a copy of their protest to the applicant and to FMCSA. All
protests must include statements made under oath (verified statements).
There are no personal appearances or formal hearings.
11. Revise Sec. 365.201 to read as follows:
Sec. 365.201 Definitions.
A person wishing to oppose a request for authority files a protest.
A person filing a valid protest is known as a protestant.
12. Revise Sec. 365.203 to read as follows:
Sec. 365.203 Time for filing.
A protest shall be filed (received at the FMCSA, Office of the
Associate Administrator for Research and Information Technology, 1200
New Jersey Ave., SE., Washington, DC 20590) within 10 days after notice
of the application appears in the FMCSA Register. A copy of the protest
shall be sent to applicant's representative at the same time. Failure
to timely file a protest waives further participation in the
proceeding.
Sec. 365.301 [Removed and reserved]
13. Remove and reserve Sec. 365.301.
14. Revise the heading of subpart D to read as follows:
Subpart D--Changes to an Entity's Name or Business Form
Sec. Sec. 365.401, 365.403, 365.405, 365.407, 365.409, and
365.411 [Removed and reserved]
15. Remove and reserve Sec. Sec. 365.401, 365.403, 365.405,
365.407, 365.409, and 365.411.
16. Amend Sec. 365.507 by revising the heading and paragraph
(e)(2) to read as follows
Sec. 365.507 FMCSA action on the application.
* * * * *
(e) * * *
(2) Electronically file Form BOC-3--Designation of Agents--Motor
Carriers, Brokers and Freight Forwarders, as required by part 366 of
this subchapter; and
* * * * *
17. Amend Sec. 365.509 by revising paragraph (a) to read as
follows:
Sec. 365.509 Requirement to notify FMCSA of change in applicant
information.
(a) A motor carrier subject to this subpart must notify FMCSA of
any changes or corrections to the information in Section A of Form
MCSA-1--FMCSA Registration/Update (USDOT Number--Operating Authority
Application), or Form BOC-3--Designation of Agents--Motor Carriers,
Brokers and Freight Forwarders, during the application process or after
having been granted provisional operating authority. The carrier must
notify FMCSA in writing within 20 days of the change or correction.
* * * * *
PART 366--DESIGNATION OF PROCESS AGENT
18. The authority citation for part 366 is revised to read as
follows:
Authority: 49 U.S.C. 502, 503, 13303, 13304 and 13908; and 49
CFR 1.73.
19. Revise Sec. 366.1 to read as follows:
Sec. 366.1 Applicability.
These rules, relating to the filing of designations of persons upon
whom court or Agency process may be served, govern for-hire and private
motor carriers, brokers, freight forwarders and, as of the moment of
succession, their fiduciaries (as defined at 49 CFR 387.319(a)).
20. Revise Sec. 366. 2 to read as follows:
Sec. 366.2 Form of designation.
(a) Designations shall be made on Form BOC-3--Designation of
Agents--Motor Carriers, Brokers and Freight Forwarders. Only one
completed current form may be on file. It must include all States for
which agent designations are required. One copy must be retained by the
carrier, broker or freight forwarder at its principal place of
business.
(b) Private motor carriers and for-hire motor carriers engaged in
transportation exempt from economic regulation by FMCSA under 49 U.S.C.
chapter 135 that are registered with FMCSA as of [insert effective date
of the final rule] must file a Form BOC-3 designation by no later than
[insert date 180 days from compliance date of final rule]. Failure to
file a designation in accordance with this paragraph will result in
deactivation of the carrier's USDOT Number.
21. Revise Sec. 366.3 to read as follows:
Sec. 366.3 Eligible persons.
All persons (as defined at 49 U.S.C. 13102(18)) designated must
reside or maintain an office in the State for which they are
designated. If a State official is designated, evidence of his or her
willingness to accept service of process must be furnished.
22. Amend Sec. 366.4 by revising paragraph (a) and adding a new
paragraph (c) to read as follows:
Sec. 366.4 Required States.
(a) Motor carriers. Every motor carrier (of property or passengers,
including a private carrier) shall make a designation for each State in
which it is authorized to operate and for each State traversed during
such operations. Every motor carrier (including a private carrier)
operating in the United States in the course of transportation between
points in a foreign country shall file a designation for each State
traversed.
* * * * *
(c) Freight forwarders. Every freight forwarder shall make a
designation for each State in which its offices are located or in which
contracts will be written.
23. Revise Sec. 366.5 to read as follows:
Sec. 366.5 Blanket designations.
Where an association or corporation has filed with the FMCSA a list
of process agents for each State, motor carriers (including private
carriers), brokers and freight forwarders may make the required
designations by using the following statement:
Those persons named in the list of process agents on file with the
Federal Motor Carrier Safety Administration by
-----------------------------------------------------------------------
(name of association or corporation) and any subsequently filed
revisions thereof, for the States in which this carrier is or may be
authorized to operate (or arrange) as an entity of motor vehicle
transportation, including States traversed during such operations,
except those States for which individual designations are named.
24. Revise Sec. 366.6 to read as follows:
Sec. 366.6 Cancellation or change.
(a) A designation may be canceled or changed only by a new
designation except that, where a motor carrier (including a private
carrier), broker or freight forwarder ceases to be subject to
[[Page 66587]]
Sec. 366.4 in whole or in part for 1 year, designation is no longer
required and may be canceled without making another designation.
(b) A change to a designation, such as name, address, or contact
information, must be reported to FMCSA within 20 days of the change.
PART 368--APPLICATION FOR A CERTIFICATE OF REGISTRATION TO OPERATE
IN MUNICIPALITIES IN THE UNITED STATES ON THE UNITED STATES-MEXICO
INTERNATIONAL BORDER OR WITHIN THE COMMERCIAL ZONES OF SUCH
MUNICIPALITIES
25. The authority citation for part 368 is revised to read as
follows:
Authority: 49 U.S.C. 13301, 13902 and 13908; Pub. L. 106-159,
113 Stat. 1748; and 49 CFR 1.73.
26. Amend Sec. 368.3 by revising paragraphs (a), (b), and (f), and
removing and reserving paragraph (e), to read as follows:
Sec. 368.3 Applying for a certificate of registration.
(a) If you wish to obtain a certificate of registration under this
part, you must electronically file an application that includes the
following:
(1) Form MCSA-1--FMCSA Registration/Update (USDOT Number--
(Operating Authority Application).
(2) Form BOC-3--Designation of Agents--Motor Carriers, Brokers and
Freight Forwarders or indicate on the application that the applicant
will use a process agent service that will submit the Form BOC-3
electronically.
(b) The FMCSA will only process your application for a Certificate
of Registration if it meets the following conditions:
(1) The application must be completed in English;
(2) The information supplied must be accurate and complete in
accordance with the instructions to Form MCSA-1 and Form BOC-3.
(3) The application must include all the required supporting
documents and applicable certifications set forth in the instructions
to Form MCSA-1 and Form BOC-3.
* * * * *
(e) [Reserved]
(f) Form MCSA-1 is an electronic application and is available,
including complete instructions, from the FMCSA Web site at http://www.fmcsa.dot.gov (Keyword ``MCSA-1'').
27. Amend Sec. 368.4 by revising paragraph (a) to read as follows:
Sec. 368.4 Requirement to notify FMCSA of change in applicant
information.
(a) You must notify FMCSA of any changes or corrections to the
information in Section A of Form MCSA-1--FMCSA Registration/Update
(USDOT Number--Operating Authority Application), or the Form BOC-3,
Designation of Agents-Motor Carriers, Brokers and Freight Forwarders,
during the application process or while you have a Certificate of
Registration. You must notify FMCSA in writing within 20 days of the
change or correction.
* * * * *
28. Revise Sec. 368.8 to read as follows:
Sec. 368.8 Appeals.
An applicant has the right to appeal denial of the application. The
appeal must be in writing and specify in detail why the Agency's
decision to deny the application was wrong. The appeal must be filed
with the FMCSA, Office of the Director of Information Technology within
20 days of the date of the letter denying the application. The decision
of the Director will be the final Agency order.
PART 385--SAFETY FITNESS PROCEDURES
29. The authority citation for part 385 is revised to read as
follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113,
13901-13905, 13908, 31136, 31144, 31148, 31151, and 31502; Sec. 350
of Pub. L. 107-87; and 49 CFR 1.73.
30. Revise Sec. 385.301 to read as follows:
Sec. 385.301 What is a motor carrier required to do before beginning
interstate operations?
(a) Before a motor carrier of property or passengers begins
interstate operations, it must register with FMCSA and receive a USDOT
Number. In addition, for-hire motor carriers must obtain operating
authority from FMCSA, unless providing transportation exempt from the
Title 49 U.S.C. chapter 139 commercial registration requirements. Both
the USDOT Number and operating authority are obtained by following
registration procedures described in 49 CFR part 390, subpart C. Title
49 CFR part 365 provides detailed instructions for obtaining operating
authority.
(b) This subpart applies to motor carriers domiciled in the United
States and Canada.
(c) The regulations in this subpart do not apply to a Mexico-
domiciled motor carrier. A Mexico-domiciled motor carrier of property
or passengers must register with FMCSA by following the registration
procedures described in 49 CFR parts 365, 368 and 390. Title 49 CFR
parts 365 and 368 provide detailed information about how a Mexico-
domiciled motor carrier may obtain operating authority.
31. Revise Sec. 385.303 to read as follows:
Sec. 385.303 How does a motor carrier register with the FMCSA?
A motor carrier registers with FMCSA by completing Form MCSA-1,
which is an electronic application that must be completed on-line at
the FMCSA Web site at http://www.fmcsa.dot.gov (Keyword ``MCSA-1'').
Complete instructions for the Form MCSA-1 also are available at the
same location.
32. Revise Sec. 385.305 to read as follows:
Sec. 385.305 What happens after the FMCSA receives a request for new
entrant registration?
(a) The applicant for new entrant registration will be directed to
the FMCSA Internet Web site (http://www.fmcsa.dot.gov) to secure and/or
complete the application package online.
(b) The application package will include the following:
(1) Educational and technical assistance material regarding the
requirements of the FMCSRs and HMRs, if applicable.
(2) Form MCSA-1--FMCSA Registration/Update (USDOT Number--Operating
Authority Application). This form is used to obtain both a USDOT Number
and operating authority.
(c) Upon completion of the application form, the new entrant will
be issued an inactive USDOT Number. An applicant may not begin
operations nor mark a commercial motor vehicle with the USDOT Number
until after the date of the Agency's written notice that the USDOT
Number has been activated. Violations of this section may be subject to
the penalties under Sec. 392.9b(b) of this subchapter.
(d) For-hire motor carriers, unless providing transportation exempt
from the Title 49 U.S.C. chapter 139 commercial registration
requirements, must obtain operating authority as prescribed under Sec.
390.105(b) and 49 CFR part 365 of this subchapter before operating in
interstate commerce.
33. Amend Sec. 385.329 by revising paragraphs (b)(1), (c)(1) and
(d) to read as follows:
Sec. 385.329 May a new entrant that has had its USDOT new entrant
registration revoked and its operations placed out of service reapply?
* * * * *
(b) * * *
[[Page 66588]]
(1) Submit an updated Form MCSA-1.
* * * * *
(c) * * *
(1) Submit an updated Form MCSA-1.
* * * * *
(d) If the new entrant is a for-hire motor carrier subject to the
registration provisions of Title 49 U.S.C. chapter 139 and also has had
its operating authority revoked, it must re-apply for operating
authority as set forth in Sec. 390.105(b) and 49 CFR part 365 of this
chapter.
34. Revise Sec. 385.405 to read as follows:
Sec. 385.405 How does a motor carrier apply for a safety permit?
(a) Application form. (1) To apply for a new safety permit or
renewal of the safety permit, a motor carrier must complete and submit
Form MCSA-1--FMCSA Registration/Update (USDOT Number--Operating
Authority Application) and meet the requirements under 49 CFR part 390,
subpart C.
(2) The Form MCSA-1 also will also satisfy the requirements for
obtaining and renewing a USDOT Number.
(b) Where to get forms and instructions. Form MCSA-1 is an
electronic application and is available, including complete
instructions, from the FMCSA Web site at http://www.fmcsa.dot.gov
(Keyword ``MCSA-1'').
(c) Signature and certification. An official of the motor carrier
must sign and certify that the information is correct on each form the
motor carrier submits.
(d) Updating information. A motor carrier holding a safety permit
must report to FMCSA any change in the information on its Form MCSA-1
within 20 days of the change. The motor carrier must use Form MCSA-1 to
report the new information.
35. Amend Sec. 385.409 by revising paragraph (a) to read as
follows:
Sec. 385.409 When may a temporary safety permit be issued to a motor
carrier?
(a) Temporary safety permit. If a motor carrier does not meet the
criteria of Sec. 385.407(a), FMCSA may issue it a temporary safety
permit. To obtain a temporary safety permit a motor carrier must
certify on Form MCSA-1 that it is operating in full compliance with the
HMRs, with the FMCSRs, and/or comparable State regulations, whichever
is applicable; and with the minimum financial responsibility
requirements in part 387 of this subchapter or in State regulations,
whichever is applicable.
* * * * *
36. Revise Sec. 385.419 to read as follows:
Sec. 385.419 How long is a safety permit effective?
Unless suspended or revoked, a safety permit (other than a
temporary safety permit) is effective for two years, except that:
(a) A safety permit will be subject to revocation if a motor
carrier fails to submit a renewal application (Form MCSA-1) in
accordance with the schedule set forth for filing Form MCSA-1 in part
390 subpart C of this subchapter; and
(b) An existing safety permit will remain in effect pending FMCSA's
processing of an application for renewal if a motor carrier submits the
required application (Form MCSA-1) in accordance with the schedule set
forth in part 390 subpart C of this subchapter.
37. Amend Sec. 385.421 by revising paragraphs (a)(1) and (a)(2) to
read as follows:
Sec. 385.421 Under what circumstances will a safety permit be subject
to revocation or suspension by FMCSA?
(a) * * *
(1) A motor carrier fails to submit a renewal application (Form
MCSA-1) in accordance with the schedule set forth in part 390 subpart C
of this subchapter.
(2) A motor carrier provides any false or misleading information on
its application form (Form MCSA-1) or as part of updated information it
is providing on Form MCSA-1 (see Sec. 385.405(d)).
* * * * *
38. Revise Sec. 385.603 to read as follows:
Sec. 385.603 Application.
(a) Each applicant applying under this subpart must submit an
application that consists of:
(1) Form MCSA-1, FMCSA Registration/Update (USDOT Number--Operating
Authority Application); and
(2) A notification of the means used to designate process agents,
either by submission in the application package of Form BOC-3,
Designation of Agents--Motor Carriers, Brokers and Freight Forwarders,
or a letter stating that the applicant will use a process agent service
that will submit the Form BOC-3 electronically.
(b) The FMCSA will process an application only if it meets the
following conditions:
(1) The application must be completed in English.
(2) The information supplied must be accurate, complete, and
include all required supporting documents and applicable certifications
in accordance with the instructions to Form MCSA-1 and Form BOC-3.
(3) The application must include the filing fee payable to the
FMCSA in the amount set forth at 49 CFR 360.3(f)(1).
(4) The application must be signed by the applicant.
(c) An applicant must electronically file Form MCSA-1.
(d) Form MCSA-1 is an electronic application and is available,
including complete instructions, from the FMCSA Web site at http://www.fmcsa.dot.gov (Keyword ``MCSA-1'').
39. Amend Sec. 385.607 by revising paragraph (e)(2) to read as
follows:
Sec. 385.607 FMCSA action on the application.
* * * * *
(e) * * *
(2) File or have its process agent(s) electronically submit, Form
BOC-3--Designation of Agents--Motor Carriers, Brokers and Freight
Forwarders, as required by part 366 of this subchapter.
* * * * *
40. Amend Sec. 385.609 by revising paragraph (a)(2) and removing
paragraph (a)(3) to read as follows:
Sec. 385.609 Requirement to notify FMCSA of change in applicant
information.
(a) * * *
(2) A motor carrier subject to this subpart must notify FMCSA of
any changes or corrections to the information in Section A of Form
MCSA-1 that occur during the application process or after the motor
carrier has been granted new entrant registration. The motor carrier
must report the changes or corrections within 20 days of the change.
The motor carrier must use Form MCSA-1 to report the new information.
* * * * *
41. Amend Sec. 385.713 by revising paragraphs (b)(1), (c)(1), and
(d) to read as follows:
Sec. 385.713 Reapplying for new entrant registration.
* * * * *
(b) * * *
(1) Submit an updated Form MCSA-1, FMCSA Registration/Update (USDOT
Number--Operating Authority Application);
* * * * *
(c) * * *
(1) Submit an updated Form MCSA-1, FMCSA Registration/Update (USDOT
Number--Operating Authority Application);
* * * * *
(d) If the new entrant is a for-hire carrier subject to the
registration
[[Page 66589]]
provisions under 49 U.S.C. 13901 and also has had its operating
authority revoked, it must reapply for operating authority as set forth
in Sec. 390.105(b) and 49 CFR part 365 of this subchapter.
PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR
CARRIERS
42. The authority citation for part 387 is revised to read as
follows:
Authority: 49 U.S.C. 13101, 13301, 13906, 13908, 14701, 31138,
and 31139; and 49 CFR 1.73.
43. Add Sec. 387.19 to subpart A to read as follows:
Sec. 387.19 Electronic filing of surety bonds, trust fund agreements,
certificates of insurance and cancellations.
(a) Insurers of exempt motor carriers, as defined in Sec. 390.5 of
this subchapter, and private motor carriers that transport hazardous
materials in interstate commerce must file certificates of insurance,
surety bonds, and other securities and agreements with FMCSA
electronically in accordance with the requirements and procedures set
forth at Sec. 387.323.
(b) The requirements of this section do not apply to motor carriers
excepted under Sec. 387.7(b)(3).
44. Revise Sec. 387.33 to read as follows:
Sec. 387.33 Financial responsibility, minimum levels.
(a) General limits. The minimum levels of financial responsibility
referred to in Sec. 387.31 of this subpart are hereby prescribed as
follows:
Schedule of Limits
Public Liability
For-hire motor carriers of passengers operating in interstate or
foreign commerce.
------------------------------------------------------------------------
Minimum
Vehicle seating capacity limits
------------------------------------------------------------------------
(1) Any vehicle with a seating capacity of 16 passengers or $5,000,000
more, including the driver \1\............................
(2) Any vehicle with a seating capacity of 15 passengers or 1,500,000
less, including the driver \2\............................
------------------------------------------------------------------------
1 2 Except as provided in Sec. 387.27(b).
(b) Limits applicable to transit service providers. Notwithstanding
the provisions of paragraph (a) of this section, the minimum level of
financial responsibility for a motor vehicle used to provide
transportation services within a transit service area located in more
than one State under an agreement with a Federal, State, or local
government funded, in whole or in part, with a grant under 49 U.S.C.
5307, 5310 or 5311, including transportation designed and carried out
to meet the special needs of elderly individuals and individuals with
disabilities, will be the highest level required for any of the States
in which it operates. Transit service providers conducting such
operations must register as for-hire passenger carriers under part 390,
subpart C of this subchapter, identify the States in which they operate
under the applicable grants, and certify on their registration
documents that they have in effect financial responsibility levels in
an amount equal to or greater than the highest level required by any of
the States in which they are operating under a qualifying grant.
45. Amend Sec. 387.39 by revising Form MCS-90B to read as follows:
Sec. 387.39 Forms.
* * * * *
BILLING CODE 4910-EX-P
[[Page 66590]]
[GRAPHIC] [TIFF OMITTED] TP26OC11.065
BILLING CODE 4910-EX-C
[[Page 66591]]
* * * * *
46. Add Sec. 387.43 to read as follows:
Sec. 387.43 Electronic filing of surety bonds, trust fund agreements,
certificates of insurance and cancellations.
(a) Insurers of for-hire motor carriers of passengers must file
certificates of insurance, surety bonds, and other securities and
agreements electronically in accordance with the requirements and
procedures set forth at Sec. 387.323.
(b) This section does not apply to motor carriers excepted under
Sec. 387.31(b)(3).
47. Amend Sec. 387.303 by revising paragraph (b) to read as
follows:
Sec. 387.303 Security for the protection of the public: Minimum
limits.
* * * * *
(b)(1) Motor carriers subject to Sec. 387.303(a)(1) are required
to have security for the required minimum limits as follows:
(i) Small freight vehicles:
------------------------------------------------------------------------
Transportation
Kind of equipment provided Minimum limits
------------------------------------------------------------------------
Fleet including only vehicles Property (non- $300,000
under 10,001 pounds (4,536 hazardous).
kilograms) GVWR.
------------------------------------------------------------------------
(ii) Passenger carriers:
Passenger Carriers: Kind of Equipment
------------------------------------------------------------------------
Vehicle seating capacity Minimum limits
------------------------------------------------------------------------
(A) Any vehicle with a seating capacity of 16 $5,000,000
passengers or more (including the driver)............
(B) Any vehicle designed or used to transport 15 1,500,000
passengers or less (including the driver) for
compensation.........................................
------------------------------------------------------------------------
(2) Motor carriers subject to Sec. 387.301(a)(2) are required to
have security for the required minimum limits as follows:
------------------------------------------------------------------------
Kind of equipment Commodity transported Minimum limits
------------------------------------------------------------------------
(i) Freight vehicles of 10,001 Property (non- $750,000
pounds (4,536 kilograms) or hazardous).
more GVWR.
(ii) Freight vehicles of Hazardous substances, 5,000,000
10,001 pounds (4,536 as defined in Sec.
kilograms) or more GVWR. 171.8 of this title,
transported in cargo
tanks, portable
tanks, or hopper-type
vehicles with
capacities in excess
of 3,500 water
gallons, or in bulk
explosives Division
1,1, 1.2 and 1.3
materials. Division
2.3, Hazard Zone A
material; in bulk
Division 2.1 or 2.2;
or highway route
controlled quantities
of a Class 7
material, as defined
in Sec. 173.403 of
this title.
(iii) Freight vehicles of Oil listed in Sec. 1,000,000
10,001 pounds (4,536 172.101 of this
kilograms) or more GVWR. title; hazardous
waste, hazardous
materials and
hazardous substances
defined in Sec.
171.8 of this title
and listed in Sec.
172.101 of this
title, but not
mentioned in (b)
above or (d) below.
(iv) Freight vehicles under Any quantity of 5,000,000
10,001 pounds (4,536 Division 1.1, 1.2, or
kilograms) GVWR. 1.3 material; any
quantity of a
Division 2.3, Hazard
Zone A, or Division
6.1, Packing Group I,
Hazard Zone A
material; or highway
route controlled
quantities of Class 7
material as defined
in Sec. 173.455 of
this title.
------------------------------------------------------------------------
* * * * *
48. Amend Sec. 387.313 by revising paragraphs (b) and (d) to read
as follows:
Sec. 387.313 Forms and procedures.
* * * * *
(b) Filing and copies. Certificates of insurance, surety bonds, and
notices of cancellation must be filed with the FMCSA.
* * * * *
(d) Cancellation notice. Except as provided in paragraph (e) of
this section, surety bonds, certificates of insurance and other
securities or agreements shall not be cancelled or withdrawn until 30
days after written notice has been submitted to http://fmcsa.dot.gov on
the prescribed form (Form BMC-35, Notice of Cancellation Motor Carrier
Policies of Insurance under 49 U.S.C. 13906, and BMC-36, Notice of
Cancellation Motor Carrier and Broker Surety Bonds, as appropriate) by
the insurance company, surety or sureties, motor carrier, broker or
other party thereto, as the case may be, which period of thirty (30)
days shall commence to run from the date such notice on the prescribed
form is filed with FMCSA at http://fmcsa.dot.gov.
* * * * *
49. Revise Sec. 387.323 to read as follows:
Sec. 387.323 Electronic filing of surety bonds, trust fund
agreements, certificates of insurance and cancellations.
(a) Insurers must electronically file forms BMC 34, BMC 35, BMC 36,
BMC 82, BMC 83, BMC 84, BMC 85, BMC 91, and BMC 91X in accordance with
the requirements and procedures set forth in paragraphs (b) through (d)
of this section.
(b) Each insurer must obtain authorization to file electronically
by registering with the FMCSA. An individual account number and
[[Page 66592]]
password for computer access will be issued to each registered insurer.
(c) Filings must be transmitted online via the Internet at http://fmcsa.dot.gov.
(d) All registered insurers agree to furnish upon request to the
FMCSA a copy of any policy (or policies) and all certificates of
insurance, endorsements, surety bonds, trust fund agreements, proof of
qualification to self-insure or other insurance filings.
50. Revise Sec. 387.403 to read as follows:
Sec. 387.403 General requirements.
(a) Cargo. A household goods freight forwarder may not operate
until it has filed with FMCSA an appropriate surety bond, certificate
of insurance, qualifications as a self-insurer, or other securities or
agreements, in the amounts prescribed at Sec. 387.405, for loss of or
damage to household goods.
(b) Public liability. A freight forwarder may not perform transfer,
collection, and delivery service until it has filed with the FMCSA an
appropriate surety bond, certificate of insurance, qualifications as a
self-insurer, or other securities or agreements, in the amounts
prescribed at Sec. 387.405, conditioned to pay any final judgment
recovered against such freight forwarder for bodily injury to or the
death of any person, or loss of or damage to property (except cargo) of
others, or, in the case of freight vehicles described at 49 CFR
387.303(b)(2), for environmental restoration, resulting from the
negligent operation, maintenance, or use of motor vehicles operated by
or under its control in performing such service.
51. Amend Sec. 387.413 by revising paragraph (b) to read as
follows:
Sec. 387.413 Forms and procedures.
* * * * *
(b) Procedure. Certificates of insurance, surety bonds, and notices
of cancellation must be electronically filed with the FMCSA.
* * * * *
52. Revise Sec. 387.419 to read as follows:
Sec. 387.419 Electronic filing of surety bonds, certificates of
insurance and cancellations.
Insurers must electronically file certificates of insurance, surety
bonds, and other securities and agreements and notice of cancellation
in accordance with the requirements and procedures set forth at Sec.
387.323.
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
53. The authority citation for part 390 is revised to read as
follows:
Authority: 49 U.S.C. 508, 13301, 13902, 13908, 31132, 31133,
31136, 31502, 31504; sec. 114, Pub. L. 103-311, 108 Stat. 1673,
1677; secs. 217, 229; Pub. L. 106-159, 113 Stat. 1748, 1767, 1773;
and 49 CFR 1.73.
54. Revise Sec. 390.3 to read as follows:
Sec. 390.3 General applicability.
(a) The rules in subchapter B of this chapter are applicable to all
employers, employees, and commercial motor vehicles, which transport
property or passengers in interstate commerce.
(b) The rules in part 383, Commercial Driver's License Standards;
Requirements and Penalties, are applicable to every person who operates
a commercial motor vehicle, as defined in Sec. 383.5 of this
subchapter, in interstate or intrastate commerce and to all employers
of such persons.
(c) The rules in part 387, Minimum Levels of Financial
Responsibility for Motor Carriers, are applicable to motor carriers as
provided in Sec. 387.3 or Sec. 387.27 of this subchapter.
(d) Additional requirements. Nothing in subchapter B of this
chapter shall be construed to prohibit an employer from requiring and
enforcing more stringent requirements relating to safety of operation
and employee safety and health.
(e) Knowledge of and compliance with the regulations. (1) Every
employer shall be knowledgeable of and comply with all regulations
contained in this subchapter which are applicable to that motor
carrier's operations.
(2) Every driver and employee shall be instructed regarding, and
shall comply with, all applicable regulations contained in this
subchapter.
(3) All motor vehicle equipment and accessories required by this
subchapter shall be maintained in compliance with all applicable
performance and design criteria set forth in this subchapter.
(f) Exceptions. Unless otherwise specifically provided, the rules
in this subchapter do not apply to--
(1) All school bus operations as defined in Sec. 390.5;
(2) Transportation performed by the Federal government, a State, or
any political subdivision of a State, or an agency established under a
compact between States that has been approved by the Congress of the
United States;
(3) The occasional transportation of personal property by
individuals not for compensation and not in the furtherance of a
commercial enterprise;
(4) The transportation of human corpses or sick and injured
persons;
(5) The operation of fire trucks and rescue vehicles while involved
in emergency and related operations;
(6) The operation of commercial motor vehicles designed or used to
transport between 9 and 15 passengers (including the driver), not for
direct compensation, provided the vehicle does not otherwise meet the
definition of a commercial motor vehicle, except that motor carriers
operating such vehicles are required to comply with Sec. Sec. 390.15,
390.21(a) and (b)(2), 390.101 and 390.103.
(7) Either a driver of a commercial motor vehicle used primarily in
the transportation of propane winter heating fuel or a driver of a
motor vehicle used to respond to a pipeline emergency, if such
regulations would prevent the driver from responding to an emergency
condition requiring immediate response as defined in Sec. 390.5.
(g) Motor carriers that transport hazardous materials in intrastate
commerce. The rules in the following provisions of subchapter B of this
chapter apply to motor carriers that transport hazardous materials in
intrastate commerce and to the motor vehicles that transport hazardous
materials in intrastate commerce:
(1) Part 385, subparts A and E, for carriers subject to the
requirements of Sec. 385.403 of this subchapter.
(2) Part 386, Rules of Practice for Motor Carrier, Intermodal
Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials
Proceedings, of this subchapter.
(3) Part 387, Minimum Levels of Financial Responsibility for Motor
Carriers, to the extent provided in Sec. 387.3 of this subchapter.
(4) Subpart C of this part, Unified Registration System, and Sec.
390.21, Marking of CMVs, for carriers subject to the requirements of
Sec. 385.403 of this subchapter. Intrastate motor carriers operating
prior to January 1, 2005, are excepted from Sec. 390.101.
(h) Intermodal equipment providers. The rules in the following
provisions of subchapter B of this chapter apply to intermodal
equipment providers:
(1) Subpart F, Intermodal Equipment Providers, of Part 385, Safety
Fitness Procedures.
(2) Part 386, Rules of Practice for Motor Carrier, Intermodal
Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials
Proceedings.
(3) Part 390, Federal Motor Carrier Safety Regulations; General,
except Sec. 390.15(b) concerning accident registers.
(4) Part 393, Parts and Accessories Necessary for Safe Operation.
(5) Part 396, Inspection, Repair, and Maintenance.
(i) Brokers. The rules in the following provisions of subchapter B
of this chapter apply to brokers that are
[[Page 66593]]
required to register with the Agency pursuant to 49 U.S.C. chapter 139.
(1) Part 386, Rules of Practice for Motor Carrier, Intermodal
Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials
Proceedings.
(2) Part 387, Minimum Levels of Financial Responsibility for Motor
Carriers, to the extent provided in subpart C.
(3) Subpart C of this part, Unified Registration System
(j) Freight forwarders. The rules in the following provisions of
subchapter B of this chapter apply to freight forwarders that are
required to register with the Agency pursuant to 49 U.S.C. chapter 139.
(1) Part 386, Rules of Practice for Motor Carrier, Intermodal
Equipment Provider, Broker, Freight Forwarder, and Hazardous Materials
Proceedings.
(2) Part 387, Minimum Levels of Financial Responsibility for Motor
Carriers, to the extent provided in subpart D of this part.
(3) Subchapter C of this part, Unified Registration System.
(k) Cargo tank facilities. The rules in Subpart C of this part,
Unified Registration System, apply to each cargo tank and cargo tank
motor vehicle manufacturer, assembler, repairer, inspector, tester, and
design certifying engineer that is subject to registration requirements
under 49 CFR 107.502 and 49 U.S.C. 5108.
55. Amend Sec. 390.5 by revising the definition of ``Exempt motor
carrier'' to read as follows:
Sec. 390.5 Definitions.
* * * * *
Exempt motor carrier means a person engaged in transportation
exempt from economic regulation by the Federal Motor Carrier Safety
Administration (FMCSA) under 49 U.S.C. chapter 135. ``Exempt motor
carriers'' are subject to the safety regulations set forth in this
subchapter.
* * * * *
56. Revise Sec. 390.19 to read follows.
Sec. 390.19 Motor carrier identification reports for certain Mexico-
domiciled motor carriers.
(a) Applicability. A Mexico-domiciled motor carrier requesting
authority to provide transportation of property or passengers in
interstate commerce between Mexico and points in the United States
beyond the municipalities and commercial zones along the United Sates-
Mexico international border must file Form MCS-150 with FMCSA as
follows:
(b) Filing schedule. Each motor carrier must file the appropriate
form under paragraph (a) of this section at the following times:
(1) Before it begins operations; and
(2) Every 24 months, according to the following schedule:
------------------------------------------------------------------------
Must file by last day of .
USDOT No. ending in . . . . .
------------------------------------------------------------------------
1......................................... January.
2......................................... February.
3......................................... March.
4......................................... April.
5......................................... May.
6......................................... June.
7......................................... July.
8......................................... August.
9......................................... September.
0......................................... October.
------------------------------------------------------------------------
(3) If the next-to-last digit of its USDOT Number is odd, the motor
carrier shall file its update in every odd-numbered calendar year. If
the next-to-last digit of the USDOT Number is even, the motor carrier
shall file its update in every even-numbered calendar year.
(c) Availability of forms. The Form MCS-150 and complete
instructions are available from the FMCSA Web site at http://www.fmcsa.dot.gov (Keyword ``MCS-150''); from all FMCSA Service Centers
and Division offices nationwide; or by calling 1-800-832-5660.
(d) Where to file. The Form MCS-150 must be filed with FMCSA Office
of Information Management. The form may be filed electronically
according to the instructions at the Agency's Web site, or it may be
sent to Federal Motor Carrier Safety Administration, Office of
Information Management, MC-RIO, 1200 New Jersey Avenue, SE.,
Washington, DC 20590.
(e) Special instructions. A motor carrier should submit the Form
MCS-150 along with its application for operating authority (OP-1(MX)),
to the appropriate address referenced on that form, or may submit it
electronically or by mail separately to the address mentioned in
paragraph (d) of this section.
(f) Only the legal name or a single trade name of the motor carrier
may be used on the Form MCS-150.
(g) A motor carrier that fails to file the Form MCS-150 or
furnishes misleading information or makes false statements upon the
form, is subject to the penalties prescribed in 49 U.S.C. 521(b)(2)(B).
(h)(1) Upon receipt and processing of the form described in
paragraph (a) of this section, FMCSA will issue the motor carrier or
intermodal equipment provider an identification number (USDOT Number).
(2) A Mexico-domiciled motor carrier seeking to provide
transportation of property or passengers in interstate commerce between
Mexico and points in the United States beyond the municipalities and
commercial zones along the United States-Mexico international border
must pass the pre-authorization safety audit under Sec. 365.507 of
this subchapter. The Agency will not issue a USDOT Number until
expiration of the protest period provided in Sec. 365.115 of this
subchapter or--if a protest is received--after FMCSA denies or rejects
the protest.
(3) The motor carrier must display the number on each self-
propelled CMV, as defined in Sec. 390.5, along with the additional
information required by Sec. 390.21.
57a. Redesignate subpart C, consisting of Sec. Sec. 390.40,
390.42, 390.44, and 390.46, as subpart D, consisting of Sec. Sec.
390.201, 390.203, 390.205, and 390.207.
57b. Add a new subpart C to read as follows:
Subpart C--Unified Registration System
Sec.
390.101 USDOT Registration.
390.102 PRISM State registration/biennial updates.
390.103 Special requirements for registration.
390.105 Other governing regulations.
390.107 Pre-authorization safety audit.
Subpart C--Unified Registration System
Sec. 390.101 USDOT Registration.
(a) Purpose. This section establishes who must register with FMCSA
under the Unified Registration System, the filing schedule, and general
information pertaining to persons subject to the Unified Registration
System registration requirements.
(b) Applicability. (1) Except as provided in paragraph (g) of this
section, each motor carrier (including a private motor carrier, an
exempt for-hire motor carrier, a non-exempt for-hire motor carrier, and
a motor carrier of passengers that participates in a through ticketing
arrangement with one or more interstate for-hire motor carriers of
passengers), intermodal equipment provider, broker and freight
forwarder subject to the requirements of 49 CFR chapter III, subchapter
B must file Form MCSA-1 with FMCSA in order to:
(i) Identify its operations with the Federal Motor Carrier Safety
Administration for safety oversight, as authorized under 49 U.S.C.
31144, as applicable;
(ii) Obtain operating authority required under Title 49 U.S.C.
chapter 139, as applicable; and
(iii) Obtain a hazardous materials safety permit as required under
49 U.S.C. 5109, as applicable.
[[Page 66594]]
(2) A cargo tank and cargo tank motor vehicle manufacturer,
assembler, repairer, inspector, tester, and design certifying engineer
that is subject to registration requirements under 49 CFR 107.502 and
49 U.S.C. 5108 must satisfy those requirements by electronically filing
Form MCSA-1 with FMCSA.
(c) General. (1)(i) A person that fails to file Form MCSA-1
pursuant to paragraph (d)(1) of this section is subject to the
penalties prescribed in 49 U.S.C. 521(b)(2)(B) or 49 U.S.C. 14901(a),
as appropriate.
(ii) A person that fails to complete biennial updates to the
information on Form MCSA-1 pursuant to paragraph (d)(2) of this section
is subject to the penalties prescribed in 49 U.S.C. 521(b)(2)(B) or 49
U.S.C. 14901(a), as appropriate, and inactivation of its USDOT Number.
(iii) A person that furnishes misleading information or makes false
statements upon Form MCSA-1 is subject to the penalties prescribed in
49 U.S.C. 521(b)(2)(B), 49 U.S.C. 14901(a) or 49 U.S.C. 14907, as
appropriate.
(2) Upon receipt and processing of Form MCSA-1, FMCSA will issue
the applicant an inactive identification number (USDOT Number). FMCSA
will activate the USDOT Number after completion of applicable
administrative filings pursuant to Sec. 390.103(a) of this chapter,
unless the applicant is subject to Sec. 390.103(b). An applicant may
not begin operations nor mark a commercial motor vehicle with the USDOT
Number until after the date of the Agency's written notice that the
USDOT Number has been activated.
(3) The motor carrier must display a valid USDOT Number on each
self-propelled CMV, as defined in Sec. 390.5, along with the
additional information required by Sec. 390.21.
(d) Filing schedule. Each person listed under paragraph (b) of this
section must electronically file Form MCSA-1 at the following times:
(1) Before it begins operations; and
(2) Every 24 months as prescribed in paragraph (d)(3) or (d)(4) of
this section, as applicable.
(3) Persons assigned a USDOT Number prior to [Insert final rule
compliance date] must file an updated Form MCSA-1 every 24 months,
according to the following schedule:
------------------------------------------------------------------------
Must file by last day of .
USDOT No. ending in . . . . .
------------------------------------------------------------------------
1......................................... January.
2......................................... February.
3......................................... March.
4......................................... April.
5......................................... May.
6......................................... June.
7......................................... July.
8......................................... August.
9......................................... September.
0......................................... October.
------------------------------------------------------------------------
If the next-to-last digit of its USDOT Number is odd, the person must
file its update in every odd-numbered calendar year. If the next-to-
last digit of the USDOT Number is even, the person must file its update
in every even-numbered calendar year.
(4) Persons assigned a USDOT Number on or after [Insert final rule
compliance date] must file an updated Form MCSA-1 every 24 months,
according to the date of Agency's written notice that the USDOT Number
has been activated pursuant to Sec. 390.101(c)(2).
(5) When there is a change in legal name, form of business, or
address. A registered entity must notify the Agency of a change in
legal name, form of business, or address within 20 days of the change
by filing an updated Form MCSA-1 reflecting the revised information.
(e) Availability of form. Form MCSA-1 is an electronic application
and is available, including complete instructions, from the FMCSA Web
site at http://www.fmcsa.dot.gov (Keyword ``MCSA-1'').
(f) Where to file. Persons subject to the registration requirements
under this subpart must electronically file Form MCSA-1 on the FMCSA
Web site at http://www.fmcsa.dot.gov.
(g) Exception. The rules in this subpart do not govern the
application by a Mexico-domiciled motor carrier to provide
transportation of property or passengers in interstate commerce between
Mexico and points in the United States beyond the municipalities and
commercial zones along the United States-Mexico international border.
The applicable procedures governing transportation by Mexico-domiciled
motor carriers are provided in Sec. 390.19 of this subchapter.
Sec. 390.102 PRISM State registration/biennial updates.
(a) A motor carrier that registers its vehicles in a State that
participates in the Performance and Registration Information Systems
Management (PRISM) program (authorized under section 4004 of the
Transportation Equity Act for the 21st Century [Pub. L. 105-178, 112
Stat. 107]) alternatively may satisfy the requirements set forth in
Sec. 390.101 by electronically filing all the required USDOT
registration and biennial update information with the State Driver
Licensing Agency (SDLA) according to its policies and procedures,
provided the SDLA has integrated the USDOT registration/update
capability into its vehicle registration program.
(b) If the SDLA procedures do not allow a motor carrier to file the
Form MCSA-1 or to submit updates within the periods specified in Sec.
390.101(a)(2), a motor carrier must complete such filings directly with
FMCSA.
(c) A for-hire motor carrier, unless providing transportation
exempt from Title 49 U.S.C. chapter 139 commercial registration
requirements, must obtain operating authority as prescribed under Sec.
390.105(b) and 49 CFR part 365 of this chapter before operating in
interstate commerce.
Sec. 390.103 Special requirements for registration.
(a)(1) General. A person applying to operate as a motor carrier,
broker or freight forwarder under this subpart must make the additional
filings described in paragraphs (a)(2) and (a)(3) of this section as a
condition for registration under this subpart within 90 days of the
date on which the application is filed:
(2) Evidence of financial responsibility. (i) A person that
registers to conduct operations in interstate commerce as a for-hire
motor carrier, a broker or a freight forwarder must file evidence of
financial responsibility as required under part 387, subparts C and D
of this subchapter.
(ii) A person that registers to transport hazardous materials as
defined in Sec. 383.5 of this subchapter in interstate commerce must
file evidence of financial responsibility as required under part 387,
subpart C of this subchapter.
(3) Designation of agent for service of process. All motor carriers
(both private and for-hire), brokers and freight forwarders required to
register under this subpart must designate an agent for service of
process (a person upon whom court or Agency process may be served)
following the rules in part 366 of this subchapter:
(b) The Agency will not activate a USDOT Number until expiration of
the protest period provided in Sec. 365.115 of this subchapter or--if
a protest is received--after FMCSA denies or rejects the protest, as
applicable.
Sec. 390.105 Other governing regulations.
(a) Motor carriers. (1) A motor carrier granted registration under
this part must successfully complete the applicable New Entrant Safety
Assurance Program as described in paragraphs (a)(1)(i)
[[Page 66595]]
through (a)(1)(iv) of this section as a condition for permanent
registration:
(i) A U.S.- or Canada-domiciled motor carrier is subject to the new
entrant safety assurance program under 49 CFR part 385, subpart D.
(ii) A Mexico-domiciled motor carrier is subject to the safety
monitoring program under 49 CFR part 385, subpart B.
(iv) A Non-North America-domiciled motor carrier is subject to the
safety monitoring program under 49 CFR part 385, subpart I.
(2) [Reserved]
(b) Brokers, freight forwarders and non-exempt for-hire motor
carriers. (1) A broker or freight forwarder must obtain operating
authority pursuant to part 365 of this subchapter as a condition for
obtaining USDOT Registration.
(2) A motor carrier registering to engage in transportation that is
not exempt from economic regulation by FMCSA must obtain operating
authority pursuant to part 365 of this subchapter as a condition for
obtaining USDOT Registration.
(c) Intermodal equipment providers. An intermodal equipment
provider is subject to the requirements of subpart D of this part.
(1) Only the legal name or a single trade name of the motor carrier
or intermodal equipment provider may be used on the Form MCSA-1.
(2) The intermodal equipment provider must identify each unit of
interchanged intermodal equipment by its assigned USDOT Number.
(d) Hazardous materials safety permit applicants. A person who
applies for a hazardous materials safety permit is subject to the
requirements of part 385, subpart E of this subchapter.
(e) Cargo tank facilities. A cargo tank facility is subject to the
requirements of 49 CFR part 107, subpart F, 49 CFR part 172, subpart H,
and 49 CFR part 180.
Sec. 390.107 Pre-authorization safety audit.
A non-North America-domiciled motor carrier seeking to provide
transportation of property or passengers in interstate commerce within
the United States must pass the pre-authorization safety audit under
Sec. 385.607(c) of this subchapter as a condition for receiving
registration under this part.
58. Amend newly redesignated Sec. 390.201 by revising paragraph
(a) to read as follows:
Sec. 390.201 What responsibilities do intermodal equipment providers
have under the Federal Motor Carrier Safety Regulations (49 CFR parts
350-399)?
* * * * *
(a) Identify its operations to the FMCSA by filing the Form MCSA-1
required by Sec. 390.101.
* * * * *
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES
59. The authority citation for part 392 is revised to read as
follows:
Authority: 49 U.S.C. 521, 13902, 13908, 31136, 31502; and 49 CFR
1.73.
60. Add Sec. 392.9b to read as follows:
Sec. 392.9b USDOT Registration.
(a) USDOT Registration required. A motor vehicle providing
transportation must not be operated without a USDOT Registration and an
active USDOT Number.
(b) Penalties. If it is determined that the motor carrier
responsible for the operation of such a vehicle is operating in
violation of paragraph (a) of this section, it may be subject to
penalties in accordance with 49 U.S.C. 521 and inactivation of its
USDOT Number.
Issued on: October 11, 2011.
Anne S. Ferro,
Administrator.
[FR Doc. 2011-26958 Filed 10-25-11; 8:45 am]
BILLING CODE 4910-EX-P