[Federal Register: August 28, 2002 (Volume 67, Number 167)]
[Rules and Regulations]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 350 and 392
[Docket No. FMCSA-2002-13015]
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Interim final rule (IFR); request for comments.
SUMMARY: The FMCSA amends its regulations to require that a motor
carrier subject to the registration requirements under 49 U.S.C. 13902
may not operate a commercial motor vehicle in interstate commerce
unless it has registered with this agency. These motor carriers are
further prohibited from operating beyond the scope of their
registration. If an unregistered carrier's motor vehicle is discovered
in operation or being operated beyond the scope of the carrier's
registration, such motor vehicle will be placed out of service and the
carrier may be subject to additional penalties. The States are
currently required to enforce these registration requirements as a
condition for receipt of Motor Carrier Safety Assistance Program funds.
Amending the Federal Motor Carrier Safety Regulations (FMCSRs) to
specifically include the out-of-service (OOS) provisions will help
ensure that all carriers subject to 49 U.S.C. 13902 are apprised of and
comply with applicable FMCSR's, operate only within the scope of
registration, and operate safe vehicles within the United States.
Benefits to the agency include the ability to more
accurately identify and monitor the safety fitness of motor carriers.
DATES: This interim final rule is effective September 27, 2002. FMCSA
must receive comments by October 28, 2002.
ADDRESSES: You can mail, fax, hand deliver or electronically submit
written comments to the Docket Management Facility, United States
Department of Transportation, Dockets Management Facility, Room PL-401,
400 Seventh Street, SW., Washington, DC 20590-0001 FAX (202) 493-2251,
on-line at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/submit.
You must include the docket number that appears in the heading of this document in your comment.
You can examine and copy all comments at the above address from 9 a.m.
to 5 p.m., EST, Monday through Friday, except Federal holidays. You can
also view all comments or download an electronic copy of this document
from the DOT Docket Management System (DMS) at
and typing the last four digits of the docket number
appearing at the heading of this document. The DMS is available 24
hours each day, 365 days each year. You can get electronic submission
and retrieval help and guidelines under the ``help'' section of the web
site. If you want us to notify you that we received your comments,
please include a self-addressed, stamped envelope or postcard or print
the acknowledgement page that appears after submitting comments on-
Comments received after the comment closing date will be included
in the docket and we will consider late comments to the extent
FOR FURTHER INFORMATION CONTACT: Mr. Larry Minor, (202) 366-4009,
FMCSA, 400 Seventh Street, SW., Washington, DC 20590. Office hours are
from 7:45 a.m. to 4:15 p.m., EST, Monday through Friday, except Federal
Currently, a carrier desiring to operate in interstate commerce
must submit to FMCSA a Motor Carrier Identification Report (Form MCS-
150). Additionally, for-hire applicants who are subject to 49 U.S.C.
13902 must apply for appropriate operating authority and make the
necessary administrative filings as required by the ICC Termination Act
of 1995 (ICCTA) [Pub. L. 104-88, 109 Stat. 803 (1995)].
Effective January 1, 2003, the agency will initiate its New Entrant
Safety Assurance Process for all applicants to operate in interstate
commerce. FMCSA announced this initiative in an interim final rule
published in the May 13, 2002, Federal Reigster (67 FR 31978). Under
the new entrant initiative, an applicant must additionally file a
Safety Certification for Applications for U.S. DOT Number (Form MCS-
150A) with the MCS-150 and the application for operating authority (if
applicable).The applicant will be provided educational and technical
assistance material to assist in complying with the FMCSRs and
applicable Hazardous Materials Regulations (HMRs), and must certify
that he/she is knowledgeable about, and will comply with, these
regulations. This will help ensure that the carrier is knowledgeable
about applicable Federal motor carrier safety standards before being
granted ``new entrant registration'' that will continue for a minimum
of 18 months. During the 18-month period, FMCSA will evaluate the new
entrant's safety management practices through a safety audit and
monitor its on-road performance prior to granting the new entrant
Once granted permanent registration, carriers continue to be
subject to all Federal Motor Carrier Safety Regulations (FMCSRs) and
operating requirements. Although the FMCSA makes every effort to help
carriers comply with the FMCSRs and operating requirements, when
necessary, the agency may apply a full range of enforcement actions to
non-complying carriers. These include, but are not limited to,
compliance reviews, civil penalties, and revocation of registration for
serious safety violations.
On December 9, 1999, the President signed into law the Motor
Carrier Safety Improvement Act of 1999 (Pub. L. 106-159, 113 Stat.
1748) (MCSIA). Section 205 of MCSIA, which amended 49 U.S.C. 13902 by
creating subsection (e), requires the agency to assess penalties for
failure to comply with motor carrier registration requirements under 49
U.S.C. 13902. Specifically, if a motor carrier fails to register its
operations or operates beyond the scope of its registration, the
carrier would be subject to certain enforcement penalties. If, upon
inspection or investigation, it is determined that a motor vehicle
providing transportation requiring registration is operating without
the carrier having registered with the agency or if that vehicle is
being operated beyond the scope of such registration, the vehicle will
not be allowed to continue to operate and will be placed out-of-
service. The violating motor carrier may be subject to additional
enforcement penalties. This interim final rule sets forth implementing
regulations for section 205 of MCSIA.
State Enforcement of Registration Requirements
Although FMCSA officials routinely conduct vehicle inspections at a
carrier's place of business, agency employees are not authorized to
stop commercial motor vehicles along the nation's highways to subject
them to inspection. Instead, Federal officials partner with State
personnel who are responsible for enforcing highway safety to compel
selected commercial motor vehicles and their operators to undergo
roadside inspections. Enforcement of the provisions in this interim
final rule depends largely upon the ability to detect violators ``in
the act'' along our nation's highways, and we will continue to rely
largely upon assistance from State enforcement personnel.
The FMCSA administers a grant-in-aid program, the Motor Carrier
Safety Assistance Program (MCSAP), as an incentive for State
enforcement of motor carrier safety regulations. The MCSAP was first
authorized in the Surface Transportation Assistance Act of 1982
(STAA)(Pub. L. 97-424, 96 Stat. 2079, 2154), reauthorized in the
Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat.
3207, 3207-186), in the Intermodal Surface Transportation Efficiency
Act of 1991 (ISTEA) (49 U.S.C. 31101-31104, as amended), and again in
the Transportation Equity Act for the 21st Century (TEA-21) (Pub. L.
105-178, 112 Stat. 107). The original authorization contained certain
eligibility requirements for financial assistance, including agreement
to adopt and enforce safety regulations compatible with the FMCSRs and
HMRs. The regulatory compatibility requirement remains today and
ensures a permanent and consistent enforcement and safety presence
throughout the nation. This interim final rule will make enforcement of
the registration requirements a condition for continued eligibility for
Section 207 of the MCSIA amended 49 U.S.C. 31102(b)(1) by inserting
new subparagraph (R), adding as a requirement of MCSAP participation,
the ``cooperation'' of the States in the enforcement of registration
requirements under 49 U.S.C. 13902 and the financial responsibility
requirements of the Department. Subsequently, on March 21, 2000, the
FMCSA revised the regulations for MCSAP participation (65 FR 15102).
Those regulations required the States to enforce the registration and
financial responsibility requirements.
All States are required, as a condition of receiving MCSAP funding
(49 CFR 350.201), to adopt the FMCSRs
contained in 49 CFR parts 390-397, as applicable. Adoption of the
changes to 49 CFR 350.201(t), added the registration and insurance
requirements found in 49 CFR parts 365 and 387. In a June 2001 policy
statement, FMCSA guidance to the States interpreted the term
``cooperation,'' as used in section 207 of MCSIA, to merely require
State enforcement to the extent each State's legislature authorized
enforcement of the Federal registration and insurance requirements. The
States could confirm their cooperation by certifying (in their MCSAP
commercial vehicle safety plan) the following: ``(t)he State of XXX
will cooperate with the FMCSA, to the extent permissible by State law,
in the enforcement of Federal requirements pertaining to registration
and financial responsibility.'' In order to restrict commercial highway
transportation to those entities having the appropriate operating
authority and possessing adequate insurance, we are now broadening our
interpretation of the term ``cooperation'' found in section 207 of the
MCSIA to specifically include placing out of service any vehicles
discovered operating without 13902 registration or operating beyond the
scope of their registration. As to the financial responsibility
requirements in 49 CFR 350.201(t), the States must now take enforcement
by assessing appropriate State penalties. We believe this expansion of
our June 2001 policy statement is necessary in light of the heightened
security environment in which we all live. Our previous policy
statement could allow unregistered or improperly registered vehicles to
travel our nation's highways unchecked. Given FMCSA's mission of
ensuring safe transportation, it is incumbent upon the agency to close
this potential loophole.
The FMCSA has also included 49 CFR part 365 (Rules Governing
Applications for Operating Authority) to 49 CFR 350.201(t) as a
condition of MCSAP funding. States are expected to notify the FMCSA
when they have information on the fitness of an applicant for
We believe that the registration requirements in this IFR are
important to ensure that carriers are apprised of and compliant with
applicable motor carrier safety standards.
We are adding new Sec. 392.9a to require that a motor vehicle
providing transportation requiring registration under 49 U.S.C. 13902
may not be operated unless the carrier has complied with registration
requirements. Nor may a driver operate a motor vehicle providing
transportation that requires section 13902 registration beyond the
scope of that registration. For example, a motor carrier must register
with the FMCSA to transport property in interstate commerce for hire.
If Carrier A fails to register pursuant to section 13902, but is later
discovered hauling appliances in a commercial motor vehicle for a
department store from one State to another, under Sec. 392.9a(b)
Carrier A's CMV would be placed out of service and Carrier A may be
subject to additional penalties. In another scenario, Carrier B
registers to transport property for hire, but is later discovered
operating a commuter bus service for a municipality using 49-passenger
buses, the bus would be subject to an out-of-service order and the
carrier may be subject to penalties.
In the second scenario in the preceding paragraph, Carrier B
applied for and obtained authority to transport property for-hire.
Carrier B met the registration requirements and his/her drivers are
qualified to operate a truck, but Carrier B's drivers may know nothing
at all about passenger transportation safety and are not qualified to
transport passengers. Because Carrier B is registered with FMCSA, the
chances of detecting Carrier B's illegal operations are much greater.
But in scenario one where Carrier A decides to go into business
hauling furniture for a department store but fails to register with
FMCSA, the agency would not even be aware of its existence unless one
of the carrier's vehicles were stopped for roadside inspection. Because
the carrier is not registered with the agency at all, that carrier
would not be targeted for a compliance review. Roadside inspections
would be the only means of detecting errant Carrier A.
Any vehicles found to be operating in violation of Sec. 392.9a
would be placed out-of-service, immediately prohibiting the driver from
further operation. Furthermore, the motor carrier may be subject to
further penalties under 49 U.S.C. 14901. The motor carrier would be
entitled to a hearing to review the out-of-service order pursuant to 5
U.S.C. 554 within 10 days of the issuance of the order.
This rulemaking will become effective thirty days after publication
because of the need to close a potential loophole that may be used to
circumvent FMCSA's safety regulations. Given the heightened security
environment, the time needed to complete notice and comment procedures
prior to issuing an enforceable standard lengthens the time that
individuals could exploit this loophole. FMCSA has asked for comment
with publication of the rule, and will consider all comments received
shortly thereafter. If changes to the rule are necessary to address
this issue more effectively, or in a less burdensome but equally
effective manner, FMCSA will not hesitate to make such changes. The
Administrator for FMCSA believes that the circumstances described
herein warrant quick action, and finds that notice and public comment
under 5 U.S.C. 553(b) are impracticable and contrary to the public
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this action is a significant
regulatory action within the meaning of Executive Order 12866.
Accordingly, the Office of Management and Budget reviewed this
regulatory action. In addition, this action is significant within the
meaning of Department of Transportation regulatory policies and
procedures (44 FR 11034, February 26, 1979). It is anticipated that the
economic impact of the revisions in this rulemaking will be minimal.
This rulemaking has been reviewed by the Office of Management and
Budget. It is significant within the meaning of the Executive Order and
DOT's policies and procedures. Because of the potential security threat
and the need to act quickly, no regulatory analysis or evaluation
accompanies this rule. This rule may, however, impose some costs. FMCSA
will assess the costs and benefits of the rule as soon as possible and
will include the analysis in the docket of this matter.
Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 5 U.S.C. 601-
612), as amended by the Small Business Regulatory Enforcement and
Fairness Act (Pub. L. 104-121), requires Federal agencies to analyze
the impact of rulemakings on small entities, unless the Agency
certifies that the rule will not have a significant economic impact on
a substantial number of small entities.
Therefore, FMCSA certifies that this rule will not have a
significant impact on a substantial number of small entities.
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 final rule likely to result
in a Federal mandate requiring expenditures by a State, local, or
tribal government or by the private sector of $100 million or more in
any one year must prepare a written statement incorporating various
assessments, estimates, and descriptions that are delineated in the
Act. FMCSA has determined that the changes proposed in this rulemaking
would not have an impact of $100 million or more in any one year.
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 that 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 agency has
determined that this rule is not a ``covered regulatory action'' as
defined under Executive Order 13045.
This rule is not economically significant under Executive Order
12866 because the FMCSA has determined that the changes in this
rulemaking would not have an impact of $100 million or more in any one
year. This rule also does not concern an environmental health risk or
safety risk that would disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This rule would not effect a taking of private property or
otherwise have taking implications under Executive Order 12630,
Governmental Actions and Interference with Constitutionally Protected
Executive Order 13132 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999 (64
FR 43255, August 10, 1999). FMCSA has determined that this action would
not have significant Federalism implications or limit the policymaking
discretion of the States.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) [44 U.S.C. 3501-
3520], Federal agencies must determine whether requirements contained
in rulemakings are subject to information collection provisions of the
PRA and, if they are, obtain approval from the Office of Management and
Budget for each collection of information they conduct, sponsor or
require through regulations. FMCSA has determined that this regulation
does not constitute an information collection within the scope or
meaning of the PRA.
National Environmental Policy Act
The Federal Motor Carrier Safety Administration (FMCSA) is a new
administration within the Department of Transportation (DOT). The FMCSA
analyzed this rule under the National Environmental Policy Act of 1969
(42 U.S.C. 4321 et seq.) (NEPA), the Council on Environmental Quality
Regulations Implementing NEPA (40 CFR 1500-1508), and DOT Order
5610.1C, Procedures for Considering Environmental Impacts. This rule
would be categorically excluded from further analysis and documentation
in an environmental assessment or environmental impact statement under
paragraph 4.c.(3) of DOT's Order as a project amendment that does not
significantly alter the environmental impact of the action. This rule
would merely amend the Federal registration program to allow States and
State law enforcement personnel to enforce the Federal registration
requirements (49 U.S.C. 13902) by placing motor carriers out-of-service
along our nation's highways for operating beyond the scope of their
List of Subjects
49 CFR Part 350
Grant programs--transportation, Highway safety, Motor carriers.
49 CFR Part 392
Highway safety, motor carriers.
For the reasons stated in the preamble, the FMCSA amends title 49,
Code of Federal Regulations, Chapter III, as follows:
PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM
1. Revise the authority citation for part 350 to read as follows:
Authority: 49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-
31141, 31161, 31310-31311, 31502; and 49 CFR 1.73.
2. Amend Sec. 350.201 to revise paragraph (t) to read as follows:
Sec. 350.201 What conditions must a State meet to qualify for Basic
* * *
(t)(1) Enforce registration requirements under 49 U.S.C. 13902, and
49 CFR parts 356 and 365, and 49 CFR 392.9a by placing out-of-service
the vehicle discovered to be operating without registration or beyond
the scope of its registration.
(2) Enforce financial responsibility requirements under 49 U.S.C.
13906, 31138, 31139, and 49 CFR part 387.
* * * * *
PART 392--DRIVING OF COMMERCIAL MOTOR VEHICLES [AMENDED]
3. Revise the authority citation for part 392 to read as follows:
Authority: 49 U.S.C. 13902, 31136, 31502; and 49 CFR 1.73.
4. Add a new Sec. 392.9a to read as follows:
Sec. 392.9a Operating authority.
(a) Registration required. A motor vehicle providing transportation
requiring registration under 49 U.S.C. 13902 may not be operated
without the required registration or operated beyond the scope of its
(b) Penalties. Every motor vehicle providing transportation
requiring registration under 49 U.S.C. 13902 shall be ordered out-of-
service if determined to be operating without registration or beyond
the scope of its registration. In addition, the motor carrier may be
subject to penalties in accordance with 49 U.S.C. 14901.
(c) Administrative Review. Upon the issuance of the out-of-service
order under paragraph (b) of this section, the driver shall comply
immediately with such order. Opportunity for review shall be provided
in accordance with section 554 of title 5, United States Code not later
than 10 days after issuance of such order.
Issued on: August 22, 2002.
Joseph M. Clapp,
[FR Doc. 02-21917 Filed 8-27-02; 8:45 am]
BILLING CODE 4910-EX-P