[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28451-28454]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-11438]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 350, 385, and 395
[Docket No. FMCSA-2012-0049]
RIN 2126-AB50
Unsatisfactory Safety Rating; Revocation of Operating Authority
Registration; Technical Amendments
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule repromulgates in the Code of Federal
Regulations a statutory requirement that FMCSA revoke the operating
authority registration of a for-hire motor carrier for failure to
comply with safety fitness requirements; if the Agency determines that
a motor carrier is ``Unfit'' based on its Safety Fitness Determination
procedures, the Agency must revoke the carrier's operating authority
registration. Unfit motor carriers are prohibited from operating in
interstate commerce, and the Secretary of Transportation is required by
statute to revoke their operating authority registration. This
[[Page 28452]]
final rule also repromulgates several technical provisions and makes
non-substantive administrative changes. These changes, initially
adopted as part of the April 5, 2010, final rule entitled ``Electronic
On-Board Recorders for Hours-of-Service Compliance,'' are necessary
because, for reasons unrelated to this final rule, the United States
Court of Appeals for the Seventh Circuit invalidated the previous rule.
DATES: Effective May 14, 2012.
ADDRESSES: For access to the docket to read background documents,
including those referenced in this document, go to:
Regulations.gov, http://www.regulations.gov, at any time
and insert FMCSA-2012-0049 in the ``Keyword'' box, and then click
``Search.''
Docket Management Facility, Room W12-140, DOT Building, 1200 New
Jersey Avenue SE., Washington, DC 20590. You may view the docket online
by visiting the facility between 9 a.m. and 5 p.m. e.t., Monday through
Friday except Federal holidays.
FOR FURTHER INFORMATION CONTACT: Mr. William Varga, Office of Chief
Counsel, Federal Motor Carrier Safety Administration, 1200 New Jersey
Avenue SE., Washington, DC 20590; telephone (202) 493-0349.
SUPPLEMENTARY INFORMATION
I. Legal Basis for Rulemaking
The legal basis for the repromulgation of 49 CFR 385.13(e) is
section 4104 of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public Law
109-59, 119 Stat. 1144, 1716-1717 (Aug. 10, 2005), which requires the
Secretary of Transportation to revoke the operating authority
registration of a motor carrier that has been prohibited from operating
in interstate commerce for failure to comply with safety fitness
requirements. See 49 U.S.C. 13905(f)(1)(B) and (3). The implementing
regulations for the safety fitness requirements are codified under 49
CFR Part 385. Under these requirements, motor carriers determined to be
``Unfit'' are prohibited from operating commercial motor vehicles in
interstate commerce. Implementation of 49 U.S.C. 13905(f)(1)(B) and (3)
has been delegated to the Administrator of FMCSA. 49 CFR 1.73(a)(5).
FMCSA has no policy discretion in the implementation of this statutory
mandate. See 49 U.S.C. 13905(f)(1)(B). This provision was not the focus
of the Seventh Circuit Court of Appeals' August 26, 2011 vacature, nor
is it related to electronic on-board records (EOBRs), which were the
subject of that litigation.
The additional administrative and technical corrections described
below, although not related to the use of EOBRs, are nevertheless
supported by several broad grants of statutory authority that were
fully addressed in the April 2010 rulemaking's Legal Basis discussion,
available at 75 FR 17209--17210.
While the Administrative Procedure Act (APA) normally requires
issuance of a notice of proposed rulemaking (NPRM) and an opportunity
for public comment, the APA provides an exception when an agency ``for
good cause finds * * * that notice and public procedure * * * are
impracticable, unnecessary, or contrary to the public interest.'' 5
U.S.C. 553(b)(B). The repromulgation of 49 CFR 385.13(e) conforms
FMCSA's regulations with a statutory requirement for revocation of
operating authority under prescribed circumstances. The APA exception
is appropriate because FMCSA lacks any policy discretion in
implementing this mandate. Furthermore, the additional amendments are
administrative and technical changes that do not result in any
substantive modifications in the CFR. For these reasons, FMCSA finds
that the opportunity for notice and public comment is unnecessary and
contrary to the public interest under the APA.
Similarly, FMCSA finds that the normal 30-day minimum delayed
effective date following publication of a final rule under the APA does
not apply. 5 U.S.C. 553(d)(3). Because the repromulgation of 49 CFR
385.13(e) simply codifies a statutory requirement that the Agency is
currently required to follow, a 30-day delay would serve no purpose
other than to postpone conforming the regulation with current Agency
practice consistent with the statutory requirements. The additional
administrative and technical changes do not result in any substantive
modifications. None of the changes requires the regulated industry to
prepare for implementation. For these reasons, FMCSA finds good cause
as to why the normal delayed effective date under the APA is not
required and the rules adopted here should become effective on the date
of publication.
II. Background Information and Discussion of This Final Rule
Background Information
On April 5, 2010, FMCSA published a final rule titled ``Electronic
On-Board Recorders for Hours-of-Service Compliance.'' See 75 FR 17208,
as amended by 75 FR 55488 (Sept. 13, 2010).\1\ As part of that
rulemaking, FMCSA set forth in regulation a statutory requirement
enacted in SAFETEA-LU Sec. 4104. Subject to certain procedural
provisions, FMCSA is required under this statute to revoke the
operating authority registration of a motor carrier that has failed to
comply with safety fitness requirements under 49 U.S.C. 31144. See 49
U.S.C. 13905(f)(1)(B) and (3). The EOBR final rule took effect on June
4, 2010.
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\1\ The September 13, 2010, rulemaking made technical changes to
the April 2010 rule, including changes to the temperature range in
which EOBRs must be able to operate and the connector type specified
for the Universal Serial Bus interface.
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On June 3, 2010, the Owner-Operator Independent Drivers
Association, Inc., filed a petition in the United States Court of
Appeals for the Seventh Circuit challenging the April 2010 final rule.
The court found that FMCSA's failure to address the issue of harassment
through the use of electronic monitoring devices as part of the
rulemaking, as required under 49 U.S.C. 31137(a), rendered the
rulemaking arbitrary and capricious. Owner-Operator Indep. Drivers
Ass'n, Inc. v. Federal Motor Carrier Safety Admin., 656 F.3d 580, 582,
589 (7th Cir. 2011). Although the court had focused on a remedial
program under the rule that would have required carriers that
demonstrated noncompliance with hours of service rules to install and
use EOBRs, the court vacated the entire rule, including, sub silentio,
the provision on revocation of operating authority registration. 656
F.3d at 584, 589. On October 7, 2011, FMCSA announced in a Federal
Register notice that it would not appeal the court's decision. 76 FR
62496.
In a separate final rule published in today's Federal Register,
titled Electronic On-Board Recorders for Hours-of-Service Compliance;
Removal of Final Rule Vacated by Court, (see the Final Rules section of
this Federal Register), FMCSA restores the regulatory text to its
posture on June 3, 2010, immediately before the effective date of the
rule the court vacated.
Discussion of This Final Rule
This final rule does two things. First, it repromulgates 49 CFR
385.13(e), codifying in the CFR the statutory requirement that FMCSA
revoke the operating authority registration of a motor carrier that is
prohibited from operating in interstate commerce for failure to comply
with the safety fitness requirements, subject to certain statutory
procedural requirements.
Second, this final rule also repromulgates certain technical
[[Page 28453]]
corrections in regulatory text that were included for administrative
convenience as part of the April 2010 rulemaking, but that are not
related to EOBR devices. The administrative and technical corrections
include: (1) In 49 CFR 350.201, correcting a reference to the number of
factors listed for Basic Program Funds under the Motor Carrier Safety
Assistance Program; (2) in 49 CFR 385.5, clarifying cross-references to
other provisions of Title 49 of the CFR; (3) in 49 CFR 385.15(a),
correcting and clarifying a cross-reference relating to administrative
review; (4) in 49 CFR part 385, Appendix B, (d)2, making a grammatical
correction so that the singular word ``Material'' is plural; and (5) in
49 CFR 395.8(a)(2), clarifying an internal reference to that section.
III. Statutory and Regulatory Reviews
Executive Order 12866 (Regulatory Planning and Review), Executive Order
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA has determined that this action does not meet the criteria
for a ``significant regulatory action'' as specified in Executive Order
12866, as supplemented by Executive Order 13563, or within the meaning
of the Department of Transportation regulatory policies and procedures
(44 FR 11034, Feb. 26, 1979). While the April 2010 final rule was an
economically significant regulatory action, that assessment was based
on the costs and benefits of requiring certain motor carriers to use
EOBRs. As explained above, this final rule is strictly technical in
that it repromulgates a nondiscretionary statutory requirement and
includes administrative and technical corrections not related to EOBRs.
However, these changes were made necessary by the court's decision
vacating the entire April 2010 rule.
Regulatory Flexibility Act
FMCSA is not required to prepare a final regulatory flexibility
analysis for this final rule under the Regulatory Flexibility Act, as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996, 5 U.S.C. 601, et seq., because the Agency has not issued an NPRM
prior to this action. This final rule also complies with the
President's memorandum of January 18, 2011, entitled Regulatory
Flexibility, Small Business, and Job Creation (76 FR 3827). As
addressed above, promulgation of this final rule is strictly technical
in that it repromulgates in FMCSA regulations a nondiscretionary
statutory requirement currently in place and includes administrative
and technical corrections.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular this Act addresses actions that may
result in the expenditure by a State, local, or tribal governments, in
the aggregate, or by the private sector of $100,000,000 or more in any
one year. This final rule will not result in such an expenditure.
Paperwork Reduction Act
This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
National Environmental Policy Act and Clean Air Act
FMCSA analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined under our environmental procedures Order 5610.1, issued
March 1, 2004 (69 FR 9680), that this action does not have any effect
on the quality of the environment. Therefore, this final rule is
categorically excluded from further analysis and documentation in an
environmental assessment or environmental impact statement under FMCSA
Order 5610.1, paragraph 6(b) of Appendix 2. This categorical exclusion
covers editorial and procedural regulations. A Categorical Exclusion
determination is available for inspection or copying in the
Regulations.gov Web site listed under ADDRESSES.
FMCSA also analyzed this action under section 176(c) of the Clean
Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency.
Approval of this action is exempt from the CAA's general conformity
requirement since it would result in no emissions increase or an
increase in emissions that is clearly de minimis.
Executive Order 12372 (Intergovernmental Review of Federal Programs)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this action.
Executive Order 12630 (Constitutionally Protected Property Rights)
This final rule does not effect a taking of private property or
otherwise have implications under Executive Order 12630.
Executive Order 12898 (Environmental Justice)
This final rule raises no environmental justice issues nor is there
any collective environmental impact resulting from its promulgation.
Executive Order 12988 (Civil Justice Reform)
This final rule meets applicable standards in section 3(a) and
3(b)(2) of Executive Order 12988 to minimize litigation, eliminate
ambiguity, and reduce burden.
Executive Order 13045 (Protection of Children)
This final rule does not pose an environmental risk to health or
safety that may disproportionately affect children.
Executive Order 13132 (Federalism)
A rulemaking has implications for Federalism under Executive Order
13132, Federalism, if it has a substantial direct effect on State or
local governments and would either preempt State law or impose a
substantial direct cost of compliance on State or local governments.
FMCSA analyzed this action in accordance with Executive Order 13132.
This final rule does not preempt or modify any provision of State law,
impose substantial direct unreimbursed compliance costs on any State,
or diminish the power of any State to enforce its own laws.
Accordingly, this rulemaking does not have Federalism implications
warranting the application of Executive Order 13132.
Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA analyzed this action under Executive Order 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. FMCSA determined that it is not a ``significant
energy action'' under that Executive Order because it is not
economically significant and is not likely to have an adverse effect on
the supply, distribution, or use of energy.
List of Subjects
49 CFR Part 350
Grant programs--transportation, Highway safety, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.
[[Page 28454]]
49 CFR Part 385
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping.
49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping
For the reasons discussed in the preamble, FMCSA amends 49 CFR
chapter III as set forth below:
PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM
0
1. The authority citation for part 350 continues to read as follows:
Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.
0
2. Amend Sec. 350.201 by revising the introductory text to read as
follows:
Sec. 350.201 What conditions must a State meet to qualify for Basic
Program Funds?
Each State must meet the following 25 conditions:
* * * * *
PART 385--SAFETY FITNESS PROCEDURES
0
3. The authority citation for part 385 continues to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 13901-
13905, 31133, 31135, 31136, 31137(a), 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88; Sec. 350 of Pub.
L. 107-87; and 49 CFR 1.73.
0
4. Revise Sec. 385.5 to read as follows:
Sec. 385.5 Safety fitness standard.
The satisfactory safety rating is based on the degree of compliance
with the safety fitness standard for motor carriers. For intrastate
motor carriers subject to the hazardous materials safety permit
requirements of subpart E of this part, the motor carrier must meet the
equivalent State requirements. To meet the safety fitness standard, the
motor carrier must demonstrate it has adequate safety management
controls in place, which function effectively to ensure acceptable
compliance with applicable safety requirements to reduce the risk
associated with:
(a) Commercial driver's license standard violations (part 383 of
this chapter),
(b) Inadequate levels of financial responsibility (part 387 of this
chapter),
(c) The use of unqualified drivers (part 391 of this chapter),
(d) Improper use and driving of motor vehicles (part 392 of this
chapter),
(e) Unsafe vehicles operating on the highways (part 393 of this
chapter),
(f) Failure to maintain accident registers and copies of accident
reports (part 390 of this chapter),
(g) The use of fatigued drivers (part 395 of this chapter),
(h) Inadequate inspection, repair, and maintenance of vehicles
(part 396 of this chapter),
(i) Transportation of hazardous materials, driving and parking rule
violations (part 397 of this chapter),
(j) Violation of hazardous materials regulations (parts 170-177 of
this title), and
(k) Motor vehicle accidents and hazardous materials incidents.
0
5. Amend Sec. 385.13 by adding paragraph (e) to read as follows:
Sec. 385.13 Unsatisfactory rated motor carriers; prohibition on
transportation; ineligibility for Federal contracts.
* * * * *
(e) Revocation of operating authority. If a proposed
``unsatisfactory'' safety rating or a proposed determination of
unfitness becomes final, FMCSA will, following notice, issue an order
revoking the operating authority of the owner or operator. For purposes
of this section, the term ``operating authority'' means the
registration required under 49 U.S.C. 13902 and Sec. 392.9a of this
subchapter. Any motor carrier that operates CMVs after revocation of
its operating authority will be subject to the penalty provisions
listed in 49 U.S.C. 14901.
0
6. Amend Sec. 385.15 by revising paragraph (a) to read as follows:
Sec. 385.15 Administrative review.
(a) A motor carrier may request FMCSA to conduct an administrative
review if it believes FMCSA has committed an error in assigning its
proposed or final safety rating in accordance with Sec. 385.11.
* * * * *
Appendix B to Part 385--Explanation of Safety Rating Process
0
7. Amend Appendix B to part 385 by revising paragraph (d)2 to read as
follows:
* * * * *
(d) * * *
2. Identify motor carriers needing improvement in their
compliance with the Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous Materials Regulations (HMRs).
These are carriers rated unsatisfactory or conditional.
* * * * *
PART 395--HOURS OF SERVICE OF DRIVERS
0
8. The authority citation for part 395 continues to read as follows:
Authority: 49 U.S.C. 504, 31133, 31136, 31137, and 31502; sec.
113, Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 229, Pub. L. 106-
159 (as transferred by sec. 4115 and amended by secs. 4130-4132,
Pub. L. 109-59, 119 Stat. 1144, 1726, 1743, 1744); sec. 4133, Pub.
L. 109-59, 119 Stat. 1144, 1744; sec. 108, Pub. L. 110-432, 122
Stat. 4860-4866; and 49 CFR 1.73.
0
9. Amend Sec. 395.8 by revising paragraph (a)(2) to read as follows:
Sec. 395.8 Driver's record of duty status.
(a) * * *
(2) Every driver who operates a commercial motor vehicle shall
record his/her duty status by using an automatic on-board recording
device that meets the requirements of Sec. 395.15 of this part. The
requirements of this section shall not apply, except paragraphs (e) and
(k)(1) and (2) of this section.
* * * * *
Issued on: May 1, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012-11438 Filed 5-11-12; 8:45 am]
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