[Federal Register Volume 77, Number 205 (Tuesday, October 23, 2012)]
[Rules and Regulations]
[Pages 64759-64762]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-26044]



Federal Motor Carrier Safety Administration

49 CFR Part 385

[Docket No. FMCSA-2012-0262]
RIN 2126-AB55

Rescission of 10-Day Agency Discretionary Period in Assigning 
Unsatisfactory Safety Ratings

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

ACTION: Final rule.


SUMMARY: The FMCSA amends the Federal Motor Carrier Safety Regulations 
to remove the provision indicating that the Agency will consider a 10-
day extension of the 45-day period after which passenger and hazardous 
materials carriers must cease operation after receiving a proposed 
unsatisfactory safety rating. The Agency previously discontinued this 
practice as a matter of policy and now amends the regulation to be 
consistent with the policy and the statutory language concerning this 
matter. Although FMCSA will continue to review requests for upgrades of 
proposed unsatisfactory safety rating for such carriers, the Agency 
will no longer grant extensions to the 45-day period.

DATES: Effective November 23, 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-2012-0262 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. David Mancl, Enforcement Division, 
Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue 
SE., Washington, DC 20590; telephone (202) 493-0442.


Background Information and Discussion of This Final Rule

Background Information

Statutory History
    The Motor Carrier Safety Act of 1990 (1990 Act) (section 15 of the 
Sanitary Food Transportation Act of 1990, Pub. L. 101-500, 104 Stat. 
1218) amended the Hazardous Materials Transportation Act to prohibit 
motor carriers that receive unsatisfactory safety ratings from 
operating CMVs, as defined in section 204(1) of the Motor Carrier 
Safety Act of 1984, to transport (1) quantities of hazardous materials 
for which vehicle placarding is required. Because of subsequent 
amendments to section 204(1)--codified at 49 U.S.C. 31132(1)--the 
prohibition also applies to CMVs transporting (2) 9-15 passengers, 
including the driver, for direct compensation, and (3) more than 15 
passengers, including the driver, but not for direct compensation. The 
1990 Act established a period of 45 days during which these motor 
carriers could take necessary corrective action to improve their safety 
rating to conditional or satisfactory. The statute required the FHWA 
(FMCSA's predecessor agency) to review a motor carrier's corrective 
actions within 30 days after the date of a safety rating upgrade 
    Section 4009 of the Transportation Equity Act for the 21st Century 
(Pub. L. 105-178, 112 Stat. 107, June 9, 1998), revised 49 U.S.C. 31144 
to apply to all owners and operators of CMVs, not just those 
transporting passengers or hazardous materials in quantities requiring 
placarding. It expressly authorized the Agency to allow owners and 
operators not transporting passengers or hazardous materials in 
quantities requiring placarding up to an additional 60 days to continue 
to operate if they were making a good faith effort to become fit.
Current Regulations
    The Agency's regulations in 49 CFR 385.17 outline the procedures 
that FMCSA and affected motor carriers \1\ must follow to upgrade a 
safety rating based on corrective action. A motor carrier transporting 
passengers or

[[Page 64760]]

hazardous materials in quantities requiring placarding may request an 
upgrade of a proposed or final conditional or unsatisfactory safety 
rating at any time based on corrective action it has taken. If the 
Agency proposes an unsatisfactory safety rating, the 45-day period in 
which the motor carrier must make improvements begins on the day 
written notice of the proposed rating is given by FMCSA. If the 
corrective action is determined to be insufficient, the proposed 
unsatisfactory rating becomes effective and the motor carrier must 
cease transportation of passengers or hazardous materials in quantities 
requiring placarding immediately, which would be the 46th day from the 
date of written notice of the proposed unsatisfactory rating. FMCSA 
makes its determination expeditiously because a final unsatisfactory 
safety rating will preclude any further operation of CMVs by the motor 
carrier. If the motor carrier has submitted evidence that corrective 
action has been taken and FMCSA is unable to make its determination 
within the 45-day review period, the current provisions of 49 CFR 
385.17(f) indicates the Agency may extend the 45-day review period by 
up to 10 additional days.

    \1\ Although 49 U.S.C. 31144 uses the term ``owner or 
operator,'' Agency regulations implementing the statute use the term 
``motor carrier.''

    This provision allowing an extension of the effective date in order 
for the Agency to review a motor carrier's corrective action has been 
part of the regulations since 1991.\2\ Current Agency policy \3\, 
however, does not allow for extensions of the effective date of a 
proposed unsatisfactory safety rating for motor carriers transporting 
passengers or hazardous materials in quantities requiring placarding.

    \2\ See Safety Fitness procedures; Safety Ratings, 56 FR 40801, 
40802, 40806 (Aug. 18, 1991) (FHWA final rule).
    \3\ http://www.ntsb.gov/doclib/reports/2012/HAR1202.pdf, cited 
in Highway Accident report HAR-12/02, footnote 48, page 27, 
published July 21, 2012.

Legal Basis for Rulemaking

    The legal basis for this final rule is found in 49 U.S.C. 31144(b) 
and (c). The statute directs the Secretary to maintain by regulation a 
procedure for determining the safety fitness of an owner or operator of 
a commercial motor vehicle (CMV). Section 31144(b)(3) requires the 
regulations to include specific time frames for such determinations. 
Section 31144(c)(1) requires that an owner or operator determined to be 
unfit is generally prohibited from operating CMVs, as defined in 49 
U.S.C. 31132, in interstate commerce on the 61st day after the 
determination. Under sections 31144(c)(2) and (c)(3), however, owners 
or operators transporting either passengers or hazardous materials in 
quantities requiring placarding on the vehicle are prohibited from 
operating CMVs, as defined in 49 U.S.C. 31132,\4\ in interstate 
commerce on the 46th day after the determination of unfitness is made.

    \4\ Under 49 CFR 390.3(f)(6), operators of CMVs designed or used 
to transport between 9-15 passengers, not for direct compensation, 
are not subject to the safety rating process.

    Section 31144(c)(4) gives the Secretary the discretion to allow an 
owner or operator to operate for an additional 60 days after the 61st 
day following the fitness determination ``if the Secretary determines 
that such owner or operator is making a good faith effort to become 
fit.'' But this provision specifically excludes from this discretionary 
authority owners or operators transporting either passengers or 
hazardous materials in quantities requiring placarding. Therefore, such 
owners or operators are not allowed an additional period of operation 
following the 45th day after the unfitness determination is made. 
Authority to carry out these provisions has been delegated by the 
Secretary to the Administrator of FMCSA under 49 CFR 1.87(f).

Administrative Procedure Act

    Although the Administrative Procedure Act (APA) generally allows 
agencies to promulgate final rules only after notice of proposed 
rulemaking and an opportunity for public comment, agencies need not do 
so when notice and comment would be ``unnecessary'' under the good 
cause exception, 5 U.S.C. 553(b)(3)(B). FMCSA finds that notice and 
comment are unnecessary in this case, and not otherwise required by 
law, because the Agency is performing a nondiscretionary administrative 
act to conform its regulations to 49 U.S.C. 31144.

Discussion of This Final Rule

    The purpose of this final rule is to bring 49 CFR 385.17(f) into 
conformity with Sec.  31144(c)(4) by removing the provision allowing a 
10-day extension of the effective date of a proposed unsatisfactory 
rating for motor carriers transporting passengers or hazardous 
materials in quantities requiring placarding. No change is being made 
to 49 CFR 385.17(g) which allows, in accordance with 49 U.S.C. 
31144(c)(4), for motor carriers not transporting passengers or 
hazardous materials in quantities requiring placarding to continue to 
operate for up to an additional 60 days at the Agency's discretion. 
FMCSA has updated the terminology used for motor carriers transporting 
hazardous materials to be consistent with terminology used elsewhere in 
this part.
    If the Agency issues a proposed unsatisfactory safety fitness 
rating, the carrier should submit its evidence of corrective actions 
within 15 days thereafter in order to ensure adequate time for review. 
Otherwise, the motor carrier risks a final safety fitness rating of 
``unsatisfactory'' or ``unfit'' and being placed out of service. FMCSA 
acknowledges that some motor carriers in this category have waited 
until late into the corrective action period provided by 49 CFR 385.17 
to submit evidence of corrective action, leaving Agency officials 
little or no time for review. However, Sec.  385.17 indicates the 
Agency will complete its review within 30 days of the carrier's 
submission of a request for a change in the safety fitness rating. In 
order to allow 30 days for the Agency to complete its review within the 
45-day, non-extendable window from the issuance of the proposed unfit 
rating, the carrier must submit evidence demonstrating corrective 
action within 15 days.
    Providing FMCSA receives evidence of corrective action within 15 
days of the date of the proposed safety fitness rating, Agency 
officials will review and make a decision on whether it is acceptable 
before the end of the 45-day period. Should evidence of corrective 
action be received more than 15 days after the date of the proposed 
unsatisfactory safety fitness rating, the Agency will not guarantee 
that the evidence will be considered prior to the end of the 45-day, 
non-extendable window. If the corrective action period expires before 
the Agency makes a determination, the proposed rating will become the 
final rating and the carrier will be prohibited from operating 
commercial motor vehicles. This policy is consistent with the Agency's 
August 16, 2012, notice concerning the timely submission of corrective 
action plans by new entrant carriers (77 FR 49384). If the FMCSA 
subsequently determines that the corrective action plan is acceptable, 
the carrier may be reinstated consistent with the Agency's fit, 
willing, and able policy published on August 2, 2012 (77 FR 46147).

[[Page 64761]]

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). As explained above, this final rule is 
strictly ministerial in that it incorporates a nondiscretionary 
statutory requirement and includes administrative and technical 
corrections. These changes are necessary to make FMCSA's regulations 
consistent with 49 U.S.C. 31144.
    Under 49 CFR 385.17(f), the decision of whether to grant a carrier 
an extension of the date on which a proposed unsatisfactory rating 
becomes final has always been at the Agency's discretion. The Agency 
can deny requests for extensions. The Agency's current policy is to 
deny an extension to any motor carrier transporting passengers or 
hazardous materials in quantities requiring placarding; thus, no such 
extensions are currently being granted. As a result, incorporating this 
policy into the Agency's regulations would have no practical effect on 
the industry.
    The only potential impact of this regulatory change would be to 
eliminate the provision that would allow motor carriers transporting 
either passengers or hazardous materials in quantities requiring 
placarding to continue operating for an additional 10 days pending a 
final determination of their safety fitness. However, current Agency 
policy is to deny these extensions. The rule would have no economic 
impact on the motor carrier industry, or significant safety impacts. 
Therefore, a full regulatory impact analysis has not been conducted, 
nor has there been a review by the Office of Information and Regulatory 
Affairs under this executive order.

Regulatory Flexibility Act

    FMCSA is not required to prepare a 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 a Notice of 
Proposed Rulemaking prior to this action and, therefore, is not 
required in that case to prepare such an analysis, 5 U.S.C. 604(a). 
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 ministerial in that it incorporates 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 $143.1 million (which is the 
calendar year 2010 value used in lieu of the $100 million threshold 
included in the 1995 statute, after adjusting for inflation) 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(u) of Appendix 2. This categorical exclusion 
covers regulations affecting the process for issuing orders to comply 
with the regulations or issuing a civil penalty. 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 sections 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

[[Page 64762]]

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 

List of Subjects in 49 CFR Part 385

    Administrative practice and procedure, Highway safety, Motor 
carriers, Motor vehicle safety, Reporting and recordkeeping.

    For the reasons discussed in the preamble, FMCSA amends 49 CFR part 
385 as set forth below:


1. The authority citation for part 385 is revised 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 1.87.

2. Revise Sec.  385.17(f) to read as follows:

Sec.  385.17  Change to safety rating based upon corrective actions.

* * * * *
    (f) The filing of a request for change to a proposed or final 
safety rating under this section does not stay the 45-day period 
specified in Sec.  385.13(a)(1) for motor carriers transporting 
passengers or hazardous materials in quantities requiring placarding.
* * * * *

    Issued on: October 15, 2012.
Anne S. Ferro,
[FR Doc. 2012-26044 Filed 10-22-12; 8:45 am]