[Federal Register Volume 77, Number 93 (Monday, May 14, 2012)]
[Rules and Regulations]
[Pages 28448-28451]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-11437]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 350, 385, 395, and 396
[Docket No. FMCSA-2012-0006]
RIN 2126-AB45
Electronic On-Board Recorders for Hours-of-Service Compliance;
Removal of Final Rule Vacated by Court
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule rescinds the
final rule published on April 5, 2010,
entitled "Electronic On-Board Recorders
for Hours-of-Service Compliance" and
amended by a September 13, 2010,
technical amendment. This action
responds to a decision of the Court of
Appeals for the Seventh Circuit that
vacated the April 2010 final 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–2012–0006 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 documents
related to the April 2010 final rule, see
docket number FMCSA–2004–18940.
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. If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION: I. Legal Basis for Rulemaking
The legal basis for the April 2010 final
rule is fully addressed in the rule and
available at 75 FR 17209–17210.
However, this final rulemaking is made
necessary by the Court of Appeals for
the Seventh Circuit's vacatur of the
April 2010 rulemaking.
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). Because
this rule only makes changes that are
necessary in light of the court's decision
vacating the April 2010 rulemaking and
has no substantive effect on the public,
FMCSA finds that notice and
opportunity for public comment is
unnecessary and contrary to the public
interest under the APA.
Similarly, given that the changes
included in this rulemaking reflect the
regulatory requirements currently in
place as a result of the court's decision,
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). The 30-day delay would serve
no purpose other than continue the
inconsistency between the regulations
reflected in the CFR system and
regulations actually in effect.
II. Background Information
On April 5, 2010, FMCSA published
a final rule entitled "Electronic On-
Board Recorders for Hours-of-Service
Compliance" (EOBRs). See 75 FR 17208,
as amended by 75 FR 55488 (September
13, 2010). Among other changes, the
April 2010 final rule: (1) Prescribed new
performance standards for EOBRs
installed in commercial motor vehicles
(CMVs) manufactured on or after June 4,
2012; (2) provided for the issuance of
remedial directives to carriers that
demonstrated noncompliance with
Hours of Service rules at a prescribed
level during the course of compliance
reviews, requiring such carriers to use
EOBRs for a 2-year period; (3) altered
the Agency's safety fitness standard to
take into account issuance of a remedial
directive when determining a carrier's
fitness; and (4) modified supporting
document requirements and compliance
review procedures for those carriers that
voluntarily chose to use EOBRs. The
final rule took effect on June 4, 2010.1
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.
Owner-Operator Indep. Drivers Ass'n v.
Federal Motor Carrier Safety Admin., 656 F.3d 580 (7th Cir. 2011). The court
found that FMCSA's failure to address
the issue of harassment as part of the
rulemaking-a factor the Agency was
required to address under 49 U.S.C.
31137(a)-rendered the rulemaking
arbitrary and capricious. 656 F.3d at
582, 589. Although the court's opinion
focused on the remedial directive for
carriers that demonstrated
noncompliance with hours of service
rules, the court vacated the entire rule.
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.
III. Impact of Seventh Circuit Decision
The effect of the court's decision was
to void the changes to Title 49 of the
CFR that were part of the April 2010
final rule.2 Stated otherwise, the
provisions of Title 49 affected by the
rulemaking were modified as a result of
the court's action so as to return the
regulatory text to its posture on June 3,
2010, immediately before the effective
date of the rule vacated by the court.
This final rule takes the
administrative steps necessary to
remove language from the Code of
Federal Regulations (CFR) that was
added by the April 2010 final rule and
to reinstate prior regulatory language,
consistent with the court's decision.
IV. 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, as
explained above, this final rule is made
necessary by the court's decision
vacating the April 2010 rulemaking. The
rule simply codifies in Title 49 of the
CFR the effect of the court's decision.
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 required as a result of
the court's decision. Additionally, the
rule was vacated before it took effect, so
neither costs nor benefits were ever
realized.
Unfunded Mandates Reform Act of 1995
FMCSA is not required to prepare an
assessment under the Unfunded
Mandates Reform Act of 1995, 2 U.S.C.
1531, et seq., evaluating a discretionary
regulatory action because the Agency
has not issued an NPRM prior to this
action. Further, as addressed above,
promulgation of this final rule is
required as a result of the court's
decision.
Paperwork Reduction Act
In the April 2010 final rule, FMCSA
estimated a reduced annual burden for
purposes of the Paperwork Reduction
Act, 44 U.S.C. 3501, et seq., of 3,110,000
hours for FMCSA's information
collection OMB Control Number 2126–
0001, based on the remedial provisions
of the final rule. On August 20, 2010,
OMB approved FMCSA's most recent
calculation of the paperwork burden of
the Hours of Service rule. As a result of
the court's action, FMCSA removed the
reduction contemplated in the April
2010 final rule in its most recent
application for an extension of this
information collection. OMB approved
the application on December 11, 2011.
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.
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.
49 CFR Part 396
Highways and roads, Motor carriers,
Motor vehicle equipment, Motor vehicle
safety.
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
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.
2. Amend § 350.201 by revising the
introductory text and removing
paragraph (z) to read as follows:
§ 350.201 What conditions must a State
meet to qualify for Basic Program Funds?
Each State must meet the following
twenty-two conditions:
* * * * *
PART 385-SAFETY FITNESS
PROCEDURES
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.
4. Amend § 385.1 by revising
paragraph (a) to read as follows:
§ 385.1 Purpose and scope.
(a) This part establishes the FMCSA's
procedures to determine the safety
fitness of motor carriers, to assign safety
ratings, to direct motor carriers to take
remedial action when required, and to
prohibit motor carriers receiving a safety
rating of "unsatisfactory" from
operating a CMV.
* * * * *
5. Amend § 385.3 by removing the
definitions of the terms "safety fitness
determination" and "safety rating or
ratings" and by adding a definition for
the term "safety ratings," in alphabetical
order, to read as follows:
§ 385.3 Definitions and acronyms. * * * * * Safety ratings. (1) Satisfactory safety
rating means that a motor carrier has in
place and functioning adequate safety
management controls to meet the safety
fitness standard prescribed in § 385.5.
Safety management controls are
adequate if they are appropriate for the
size and type of operation of the
particular motor carrier.
(2) Conditional safety rating means a
motor carrier does not have adequate
safety management controls in place to
ensure compliance with the safety
fitness standard that could result in
occurrences listed in § 385.5 (a) through
(k).
(3) Unsatisfactory safety rating means
a motor carrier does not have adequate
safety management controls in place to
ensure compliance with the safety
fitness standard which has resulted in
occurrences listed in § 385.5 (a) through
(k).
(4) Unrated carrier means that a safety
rating has not been assigned to the
motor carrier by the FMCSA.
* * * * *
6. Revise § 385.5 to read as follows: § 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:
- Commercial driver's license
standard violations (part 383),
- Inadequate levels of financial
responsibility (part 387),
- The use of unqualified drivers
(part 391),
- Improper use and driving of motor
vehicles (part 392),
- Unsafe vehicles operating on the
highways (part 393),
- Failure to maintain accident
registers and copies of accident reports
(part 390),
- The use of fatigued drivers (part
395),
- Inadequate inspection, repair, and
maintenance of vehicles (part 396),
- Transportation of hazardous
materials, driving and parking rule
violations (part 397),
- Violation of hazardous materials
regulations (parts 170 through 177), and
- Motor vehicle accidents and
hazardous materials incidents.
7. Amend § 385.9 by revising
paragraph (a) to read as follows:
§ 385.9 Determination of a safety rating.
(a) Following a compliance review of
a motor carrier operation, the FMCSA,
using the factors prescribed in § 385.7 as
computed under the Safety Fitness
Rating Methodology set forth in
appendix B of this part, shall determine
whether the present operations of the
motor carrier are consistent with the
safety fitness standard set forth in
§ 385.5, and assign a safety rating
accordingly.
* * * * *
8. Amend § 385.11 by revising the
section heading to read as set forth
below, and by removing paragraph (g).
§ 385.11 Notification of safety fitness
determination.
* * * * *
§ 385.13 [Amended]
9. Amend § 385.13 by removing
paragraph (e).
10. Amend § 385.15 by revising
paragraph (a) to read as follows:
§ 385.15 Administrative review.
(a) A motor carrier may request the
FMCSA to conduct an administrative
review if it believes the FMCSA has
committed an error in assigning its
proposed safety rating in accordance
with § 385.15(c) or its final safety rating
in accordance with § 385.11(b).
* * * * *
§ 385.17 [Amended]
11. Amend § 385.17 by removing
paragraphs (k) and (l).
12. Amend § 385.19 by revising
paragraphs (a) and (b) to read as follows:
§ 385.19 Safety fitness information.
(a) Final ratings will be made
available to other Federal and State
agencies in writing, telephonically or by
remote computer access.
(b) The final safety rating assigned to
a motor carrier will be made available
to the public upon request. Any person
requesting the assigned rating of a motor
carrier shall provide the FMCSA with
the motor carrier's name, principal
office address, and, if known, the
USDOT number or the ICCMC docket
number, if any.
* * * * *
13. Amend § 385.407 by revising
paragraph (a) to read as follows:
§ 385.407 What conditions must a motor
carrier satisfy for FMCSA to issue a safety
permit?
(a) Motor carrier safety performance. - The motor carrier must have a
"Satisfactory" safety rating assigned by
either FMCSA, pursuant to the Safety
Fitness Procedures of this part, or the
State in which the motor carrier has its
principal place of business, if the State
has adopted and implemented safety
fitness procedures that are equivalent to
the procedures in subpart A of this part;
and
- FMCSA will not issue a safety
permit to a motor carrier that:
- Does not certify that it has a
satisfactory security program as required
in § 385.407(b);
- Has a crash rate in the top 30
percent of the national average as
indicated in the FMCSA Motor Carrier
Management Information System
(MCMIS); or
- Has a driver, vehicle, hazardous
materials, or total out-of-service rate in
the top 30 percent of the national
average as indicated in the MCMIS.
* * * * * Subpart J-[Removed]
14. Remove and reserve subpart J to
part 385, consisting of § 385.801 through
§ 385.819.
15. Amend Appendix B to part 385 by
revising paragraphs (b), (c), and (d) and
section VI, paragraph (a), to read
follows:
Appendix B to Part 385-Explanation
of Safety Rating Process
* * * * *
(b) As directed, FMCSA promulgated a
safety fitness regulation, entitled "Safety
Fitness Procedures," which established a
procedure to determine the safety fitness of
motor carriers through the assignment of
safety ratings and established a "safety
fitness standard" which a motor carrier must
meet to obtain a satisfactory safety rating.
(c) Critical regulations are those identified
as such where noncompliance relates to
management and/or operational controls.
These are indicative of breakdowns in a
carrier's management controls. An example
of a critical regulation is § 395.3(a)(1),
requiring or permitting a property-carrying
commercial motor vehicle driver to drive
more than 11 hours.
(d) The safety rating process developed by
FMCSA is used to:
- Evaluate safety fitness and assign one of
three safety ratings (
satisfactory, conditional,
or unsatisfactory
) to motor carriers operating
in interstate commerce. This process
conforms to 49 CFR 385.5, Safety fitness
standard, and § 385.7, Factors to be
considered in determining a safety rating.
- Identify motor carriers needing
improvement in their compliance with the
Federal Motor Carrier Safety Regulations
(FMCSRs) and applicable Hazardous Material
Regulations (HMRs). These are carriers rated
unsatisfactory or conditional.
* * * * * VI. Conclusion
(a) The FMCSA believes this "safety fitness
rating methodology" is a reasonable
approach for assigning a safety rating which
best describes the current safety fitness
posture of a motor carrier as required by the
safety fitness regulations (§ 385.9). This
methodology has the capability to
incorporate regulatory changes as they occur.
* * * * *
Appendix C to Part 385-[Removed] 16. Remove Appendix C to part 385.
PART 395-HOURS OF SERVICE OF
DRIVERS
17. 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.
§ 395.2 [Amended]
18. Amend 395.2 by removing the
definitions of "CD–RW," "CMRS," "802.11," "Electronic on-board
recording device (EOBR)," "Integrally
synchronized," "USB," and "UTC."
19. Amend § 395.8 by revising
paragraphs (a)(2) and (e) to read as
follows:
§ 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 § 395.15
of this part. The requirements of § 395.8
shall not apply, except paragraphs (e)
and (k)(1) and (2) of this section.
* * * * *
(e) Failure to complete the record of
duty activities of this section or
§ 395.15, failure to preserve a record of
such duty activities, or making of false
reports in connection with such duty
activities shall make the driver and/or
the carrier liable to prosecution.
* * * * *
§ 395.11 [Removed and Reserved] 20. Remove and reserve § 395.11.
21. Amend § 395.13 by revising
paragraph (b)(2) to read as set forth
below and removing paragraph (b)(4).
§ 395.13 Drivers declared out of service. * * * * *
(b) * * *
(2) No driver required to maintain a
record of duty status under § 395.8 or
§ 395.15 of this part shall fail to have a
record of duty status current on the day
of examination and for the prior seven
consecutive days.
* * * * *
22. Amend § 395.15 by revising the
heading of paragraph (a) and paragraph
(a)(1) to read as follows:
§ 395.15 Automatic on-board recording
devices.
(a) Authority to use automatic onboard
recording device. (1) A motor
carrier may require a driver to use an
automatic on-board recording device to
record the driver's hours of service in
lieu of complying with the requirements
of § 395.8 of this part.
* * * * *
§ 395.16 [Removed] 23. Remove § 395.16. § 395.18 [Removed] 24. Remove § 395.18. Appendix A to Part 395-[Removed] 25. Remove Appendix A to part 395.
PART 396-INSPECTION, REPAIR AND
MAINTENANCE
26. The authority citation for part 396
continues to read as follows:
Authority: 49 U.S.C. 31133, 31136, 31151,
and 31502; and 49 CFR 1.73.
27. Amend § 396.9 by revising the
section heading, the heading of
paragraph (c), and paragraph (c)(1) to
read as follows:
§ 396.9 Inspection of motor vehicles and
intermodal equipment in operation.
* * * * *
(c) Motor vehicles and intermodal
equipment declared "out-of-service." (1)
Authorized personnel shall declare and
mark "out-of-service" any motor vehicle
or intermodal equipment which by
reason of its mechanical condition or
loading would likely cause an accident
or a breakdown. An "out-of-Service
Vehicle" sticker shall be used to mark
vehicles and intermodal equipment
"out-of-service."
* * * * *
1 The September 13, 2010 rulemaking, referenced
above, 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.
2 The court’s decision did not affect carriers that
voluntarily elect to use EOBRs that satisfy
preexisting regulatory requirements to track
compliance with Hours of Service regulations. See
49 CFR 395.15, as modified by this rulemaking. Nor
did the court’s decision affect carriers that agree to
use electronic monitors that go beyond the minimal
requirements of 49 CFR 395.15 under settlement
agreements entered as part of the Agency’s
enforcement proceedings. The court’s decision
eliminated the supporting document relief adopted
as part of the April 2010 final rule and reflected in
49 CFR 395.11, but it did not affect an Agency
policy encouraging carriers to employ qualifying
electronic mobile communication/tracking
technology by reducing the type of supporting
documents the carrier must maintain. See 75 FR
32984 (June 10, 2010).
Issued on: May 1, 2012.
Anne S. Ferro,
Administrator.
[FR Doc. 2012–11437 Filed 5–11–12; 8:45 am]
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