FR Doc 03-31597
[Federal Register: December 23, 2003 (Volume 68, Number 246)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2003-15642 and FMCSA-2001-11060]
Safety Auditor Certification; Notice of Statutory Compliance Date
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of statutory compliance date.
SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) gives
notice that after December 31, 2003, all safety inspections, audits,
and compliance reviews will be conducted by FMCSA or State employees
certified under the Certification of Safety Auditors, Safety
Investigators, and Safety Inspectors interim final rule (67 FR 12776,
Mar. 19, 2002; 67 FR 41196, Jun. 17, 2002) (commonly referred to as the
``Certification rule'') or qualified under the grandfather provisions
of 49 U.S.C. 31148(b). The Certification rule was one of three interim
final rules set aside by the U.S. Court of Appeals for the Ninth
Circuit on January 16, 2003, on the grounds that FMCSA failed to comply
with statutory environmental impact analysis requirements in developing
these regulations. On July 28, 2003, FMCSA notified the public (68 FR
44378) that, as authorized by Sec. 211 of the Motor Carrier Safety
Improvement Act of 1999 (MCSIA), the Secretary of Transportation
(Secretary) had extended by 12 months the agency's December 31, 2002,
statutory deadline for compliance with the safety certification
requirements. The extension of the statutory compliance deadline
provided FMCSA the necessary time to comply with the court's mandate by
preparing an Environmental Assessment (EA) for the Certification rule.
The EA concluded that implementation of the Certification rule would
have no adverse environmental consequences and, in fact, would likely
have a positive, if minimal, impact on the affected environment. On
October 2, 2003, the agency issued a notice announcing the EA's
availability in the docket and requesting public comment (68 FR 56863).
The agency received no comments on the EA. Following the close of the
public comment period, FMCSA prepared a Finding of No Significant
Impact document for the Certification rule. The Finding of No
Significant Impact is attached to the EA in the docket. Compliance with
the statutory certification requirement by FMCSA and its State partners
will assure the agency's continued fulfillment of its statutory
responsibilities to reduce crashes, injuries, and fatalities involving
large trucks and buses.
DATES: Compliance with 49 U.S.C. 31148(b) begins January 1, 2004.
FOR FURTHER INFORMATION CONTACT: Mary Pat Woodman, Chief of the
Enforcement and Compliance Division (MC-ECE), (202) 366-9699, FMCSA,
400 Seventh Street, SW., Washington, DC 20590.
Sec. 210 of the Motor Carrier Safety Improvement Act (MCSIA) of
1999 (Pub. L. 106-159, 113 Stat. 1748) directs that all motor carriers
(both foreign and domestic) granted new operating authority must
undergo a safety audit within 18 months of commencing operations in
interstate commerce in the United States [49 U.S.C. 31144(c)(1)]. Sec.
211 of the MCSIA requires that any safety audit conducted after
December 31, 2002, be performed by: (1) A motor carrier safety auditor
certified under rules established for that purpose, or (2) a Federal or
State employee qualified to perform such an audit or review at the time
MCSIA was enacted [49 U.S.C. 31148(b)]. The legislation gives the
Secretary oversight responsibility for these motor carrier safety
auditors and investigators, including the authority to decertify them
[49 U.S.C. 31148(e)]. In addition, section 31148(c) authorizes the
Secretary to extend (by no more than 12 months) the December 31, 2002,
deadline for compliance with the safety certification requirements of
MCSIA if it is determined that the rulemaking required by the statute
cannot be timely implemented.
As required by Sec. 211, FMCSA published an interim final rule
entitled ``Certification of Safety Auditors, Safety Investigators, and
Safety Inspectors,'' establishing procedures to certify and maintain
certification for safety auditors, inspectors, and investigators (67 FR
12776, Mar. 19, 2002; 67 FR 41196, Jun. 17, 2002). The rule amends 49
CFR parts 350 and 385 to provide for three types of certification, as
follows: (1) Certification to conduct safety audits, (2) certification
to conduct compliance reviews, and (3) certification to conduct
roadside vehicle and driver inspections. The Certification rule took
effect on July 17, 2002 (67 FR 41196).
The rule requires certification not only for Federal employees
performing safety audits, inspections, and compliance reviews but also
for State and local employees conducting these activities under the
Motor Carrier Safety Assistance Program (MCSAP). States must certify
that safety employees meet minimal Federal standards as a condition of
their continued participation in the MCSAP. Federal and MCSAP employees
qualified to perform compliance reviews on December 9, 1999, are
grandfathered by 49 U.S.C. 31148(b)(2) and are not required to be
certified under the rule. The Certification rule extended this
grandfather period to include personnel who were fully trained and
compliance reviews or roadside inspections before June 17, 2002. Both
grandfathered employees and those certified under the rule will be
required to maintain their certification by completing a minimum number
of safety review activities each year.
The 2002 Department of Transportation (DOT) Appropriations Act
(Pub. L. 107-87, 115 Stat. 833, December 18, 2001) had stipulated that
FMCSA could not expend funds on processing applications of Mexico-
domiciled motor carriers for authority to operate in the United States
beyond the border commercial zones, as recommended by an international
arbitration panel convened pursuant to the North American Free Trade
Agreement, until FMCSA published, among other things, a number of
regulations including the Certification rule. (This condition was again
imposed in the 2003 DOT Appropriations Act [Pub. L. 108-7, 117 Stat.
11, February 20, 2003]). Another precondition for processing such
applications was publication of a rule implementing Sec. 210 of the
MCSIA. An interim final rule entitled ``New Entrant Safety Assurance
Process'' (New Entrant rule), establishing procedures to heighten the
agency's safety scrutiny of new entrant motor carriers, including
standards and procedures regarding the safety audits mandated by Sec.
210, was published on May 13, 2002 (67 FR 31978) and became effective
on January 1, 2003.
On January 16, 2003, the U.S. Court of Appeals for the Ninth
Circuit set aside the Certification rule and two other FMCSA rules
establishing application and safety monitoring procedures for Mexico-
domiciled motor carriers seeking authority to operate beyond the border
commercial zones. The court concluded that FMCSA failed to comply with
statutory environmental impact analysis requirements in developing
these regulations. See Public Citizen v. DOT, 316 F.3d 1002 (9th Cir.
2003). Specifically with respect to the Certification rule, the court
determined that because the rule did not fall within any of the
existing DOT categorical exclusions, FMCSA acted arbitrarily and
capriciously by failing to conduct an EA for the rule. DOT's petition
for rehearing was denied on April 10, 2003. Consequently, the court's
mandate setting aside the three rules took effect on April 18, 2003.
On July 17, 2003, the Secretary notified the Senate Committee on
Commerce, Science, and Transportation and the House of Representatives
Committee on Transportation and Infrastructure that, in accordance with
his authority under 49 U.S.C. 31148(c), he had extended the deadline
for compliance with the statutory certification requirements to
December 31, 2003, while FMCSA acted to comply with the court's
mandate. FMCSA notified the public of this extension (68 FR 44378, Jul.
On August 26, 2003, FMCSA issued a notice to advise the public that
a Programmatic Environmental Impact Statement (PEIS) would be prepared
pursuant to the National Environmental Policy Act of 1969 (NEPA) (42
U.S.C. 4321, et seq.), as amended, and a General Conformity Evaluation
would be made pursuant to the Clean Air Act [42 U.S.C. 7506(c)(1)],
before promulgation of the rules on application and safety monitoring
procedures for Mexico-domiciled carriers seeking U.S. operating
authority (68 FR 51322, Aug. 26, 2003). The notice also announced that
FMCSA was preparing an EA for the Certification rule and that a
supplemental Notice of Intent would be issued if, based on the EA, the
agency determined that preparation of an Environmental Impact Statement
(EIS) is required.
On September 8, 2003, the United States sought Supreme Court review
of the Ninth Circuit decision that invalidated the rules concerning
Mexico-domiciled carriers, but did not seek review on the exclusion
issues that pertained solely to the Certification rule. The following
month, FMCSA issued a notice announcing the availability of an EA for
the Certification rule and requesting public comment (68 FR 56863, Oct.
2, 2003). On December 15, 2003, the Supreme Court granted the
Government's petition for review.
Environmental Assessment and Finding of No Significant Impact
The EA noted that the Certification rule is intended to promote
more accurate safety audits, inspections, and compliance reviews by
ensuring that these activities are conducted by highly trained
personnel certified by FMCSA or by State or local governments. The
procedures established under the rule preserve and formalize training
requirements and practices that have been in effect within the DOT
system for more than 20 years. Implementation of these procedures will
not require FMCSA to engage in any new activities or to construct new
inspection facilities, classroom facilities, or roadways; nor will the
certification program, in and of itself, increase the number of safety
inspections performed. Although the New Entrant rule created a new kind
of review--the ``safety audit'' of new entrant carriers--the training
required for safety auditor certification is merely a simplified, less
comprehensive version of that required to conduct compliance reviews
and roadside vehicle and driver inspections.
Therefore, the Certification rule will neither increase commercial
vehicular traffic congestion, noise levels, and land use nor adversely
impact air quality. Likewise, the certification process will have no
measurable impact in conventional analysis areas such as visual,
cultural, and aesthetic resources, geology and soils, water resources
and hydrology, biological and ecological resources, energy consumption,
socioeconomics, and environmental justice.
As required by DOT Order 5610.1C, Procedures for Considering
Environmental Impacts, September 18, 1979, as amended on July 13, 1982,
and July 30, 1985, and the Council on Environmental Quality's
regulations implementing NEPA, the EA also analyzed the potential
environmental impact of failure to implement the proposed certification
procedures (the No Action Alternative). Under this scenario, the agency
would withdraw the Certification rule and make no changes to the safety
fitness regulations at 49 CFR part 385. In addition, FMCSA considered
two alternative actions. As detailed in the EA, we judged all three
alternatives to be inadequate.
The EA concluded that insofar as the certification program
increases the government's ability to identify potentially unsafe
carriers and vehicles and remove them from the Nation's roads, it will
have positive, if minimal, effects on air quality, noise levels, and
public safety. Accordingly, FMCSA anticipates that the Certification
rule will produce a net positive impact on the affected environment,
and has determined that an EIS for the rule is not required. The agency
received no public comments on the EA.
As noted in the Background section of this document, the FY 2002
and 2003 DOT Appropriations Acts made issuance of the Certification
rule a precondition to FMCSA's expenditure of funds on the processing
of Mexico-domiciled motor carrier applications for authority to operate
in the United States beyond the border commercial zones. Nevertheless,
the EA does not attempt to analyze the prospective environmental
impacts of Mexico-domiciled carriers operating in the United States.
This is because the PEIS and General Conformity Evaluation required by
the Ninth Circuit Court decision are already being undertaken with
respect to the two other rules discussed in the Background section that
are preconditions to the processing of
applications of Mexican carriers for operating authority beyond the
border commercial zones. Unless the Ninth Circuit Court decision is
reversed or the relevant terms of the DOT Appropriations Acts are not
extended, FMCSA cannot process applications of Mexico-domiciled motor
carriers seeking authority to operate beyond the border commercial
zones until a PEIS and General Conformity Evaluation have been
completed and considered by FMCSA. Implementing the Certification rule
will not affect that prohibition.
Further, the Certification rule standing alone will have no impact
on prospective Mexican truck and bus operations beyond the border
commercial zones. For example, it will not affect either the number of
Mexico-domiciled vehicles entering the United States or the number and
duration of safety inspections of these vehicles. Indeed, unlike the
application and safety monitoring rules, which apply solely to Mexico-
domiciled motor carriers, the only connection between the Certification
rule and the operation of Mexican carriers beyond the border commercial
zones is the contingency Congress created when it made issuance of the
rule one of the preconditions to the processing of these carriers'
applications for operating authority.
As noted above, FMCSA received no public comments in response to
the EA. Following the close of the public comment period, the agency
prepared a Finding of No Significant Impact document for the
Certification rule. FMCSA's full Environmental Assessment and Finding
of No Significant Impact are available in the docket.
In accordance with the agency's statutory obligation under 49
U.S.C. 31148(b), FMCSA and its State partners will comply with the
statutory certification requirement effective January 1, 2004.
Issued on: December 18, 2003.
Annette M. Sandberg,
[FR Doc. 03-31597 Filed 12-22-03; 8:45 am]