[Federal Register: July 24, 2003 (Volume 68, Number 142)]
[Proposed Rules] 
[Page 43893-43895]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy03-55] 
 
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DEPARTMENT OF TRANSPORTATION
 
Federal Motor Carrier Safety Administration
 
49 CFR Parts 395 and 396
 
[Docket No. FMCSA-98-3414]
RIN 2126-AA36
 
 
Withdrawal of Advance Notice of Proposed Rulemaking; Out-of-
Service Criteria
 
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
 
ACTION: Withdrawal of advance notice of proposed rulemaking (ANPRM).
 
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SUMMARY: The FMCSA withdraws the ANPRM published in the Federal 
Register of July 20, 1998, concerning the use of the North American 
Uniform Out-of-Service Criteria (the Criteria). FMCSA has determined 
that including the Criteria in the Federal Motor Carrier Safety 
Regulations (FMCSRs), either through codification of each criterion or 
through incorporation-by-reference of a specific edition of the 
Criteria, would not provide any discernible safety benefits to the 
public or resolve issues raised by parties seeking such action. 
Adoption of the Criteria into the FMCSRs would only have the effect of 
regulating FMCSA enforcement actions during roadside inspections. 
However, it would not necessarily preclude the States from continuing 
to use the uniform international tolerances. Accordingly, this 
rulemaking proceeding has been terminated.
 
FOR FURTHER INFORMATION CONTACT: Larry Minor, Chief of the Vehicle and 
Roadside Operations Division (MC-PSV), (202) 366-4009, Federal Motor 
Carrier Safety Administration, Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590.
 
ADDRESSES: The electronic file of this document is available from the 
DOT public docket at http://dms.dot.gov, docket number FMCSA-98-3414. 
It is also available from FMCSA's Web site at http://www.fmcsa.dot.gov/rules_regulations/rules_development_and_administration/fmcrshome.htm
; or the Federal Register Web site at http://www.gpoaccess.gov If you do not have access to the Internet, you may 
request a copy of this document from the Docket Management System, U.S. 
Department of Transportation, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590. You must identify the title and docket number of 
the document.
 
SUPPLEMENTARY INFORMATION: 
 
Background
 
 On July 20, 1998 (63 FR 38791), the Federal Highway Administration 
(FHWA) published an ANPRM requesting public comment concerning the use 
of the Criteria. During roadside inspections, Federal, State and local 
enforcement officials use the Criteria as a guide in determining 
whether a commercial motor vehicle (CMV) or driver should be placed out 
of service. The Criteria provides a list of violations of the safety 
regulations that are so unsafe that they must be corrected before 
operations can resume. Correction of other less severe violations may 
be deferred to a later date, but generally no later than 15 days from 
the date the violations were discovered (49 CFR 396.9(d)(3)).
 Currently, the Criteria is published by the Commercial Vehicle 
Safety Alliance (CVSA), an association of Federal, State and Provincial 
official responsible for the administration and enforcement of motor 
carrier safety laws and regulations in the United States, Canada, and 
Mexico. Each year the CVSA reviews the Criteria through a committee 
process involving representatives from Federal, State, and Provincial 
governments and the motor carrier industry representatives, and adopts 
changes as necessary to reflect up-to-date information concerning the 
potential safety impacts of specific violations of motor carrier laws 
and regulations.
 
Discussion of Comments
 
 Thirty comments were received in response to the ANPRM. These came 
from 12 States and Provinces, associations representing State and 
Provincial enforcement and motor vehicle administrators, associations 
representing various segments of the trucking industry, safety 
advocates, unions representing drivers, trucking companies, and 
individual citizens.
 Most of the commenters expressed concern about incorporating the 
Criteria into the FMCSRs through codification of each criterion, or 
including the Criteria as an appendix to the FMCSRs. Generally, the 
commenters believes that subjecting the Criteria to the Federal 
rulemaking process would undermine the efforts of the States, Provinces 
and industry to work together through the CVSA's committee process to 
review and periodically revise the enforcement tolerances. However, 
most of the commenters who were opposed to codification of the criteria 
indicated that they would support incorporation-by-reference of the 
Criteria provided that such action would not delay, or
 
[[Page 43894]]
 
otherwise interfere with, the current process administered by the CVSA.
 The American Trucking Associations, Inc., (ATA) believes that the 
development and maintenance of the Criteria would be severely hampered 
if it were subject to a notice and comment rulemaking process. ATA 
recommends incorporation by reference of the Criteria with the 
publication by FMCSA of a notice of availability and request for 
comments in January or February of each year. The comments would then 
be forwarded to CVSA for appropriate handling during CVSA's spring and 
fall meetings, and revised accordingly. Several other commenters had 
similar suggestions.
 The Canadian Council of Motor Transport Administrators (CCMTA) 
indicated that Canadian governments have expressed concern about 
placing the Criteria in the Federal safety regulations. They believe 
doing so would have an adverse impact on the international 
collaborative nature of developing, revising and implementing the 
Criteria throughout North America. CCMTA indicated that it would not 
object to FMCSA referencing the Criteria in such a way that the CVSA 
process could continue to be used to update the document.
 The International Brotherhood of Teamsters supports the formal 
adoption of the Criteria either through codification of each criterion 
or through incorporation-by-reference. The Teamsters believe the 
Criteria represent enforcement standards and that failure to adopt the 
Criteria through a notice and comment process may undermine the ability 
of the agency to pursue enforcement actions.
 The Advocates for Highway and Auto Safety (Advocates), Owner-
Operator Independent Drivers Association, Inc., (OOIDA), National Tank 
Truck Carriers, Inc., (NTTC) and the Iowa Department of Transportation 
support codification of the Criteria. Advocates does not belief the 
Criteria are legally binding on inspectors or their agencies since the 
document is not included in the FMCSRs. Advocates argues that the 
agency must assert the formal policy needed to bind field enforcement 
personnel by both directing and circumscribing the exercise of 
enforcement discretion through application of the Criteria. NTTC 
believes enforcement personnel treat the Criteria as substantive rules 
and that there are procedural and substantive deficiencies in the way 
the Criteria are structured and used. OOIDA believes the agency must 
adopt the Criteria as part of the FMCSRS because it represents the 
legal standard under which vehicles and drivers are placed out of 
service. Iowa DOT believes that including the Criteria in the 
regulations enhances the availability of the Criteria to motor carriers 
and drivers so that they will know which safety conditions will place 
them in jeopardy of not being able to complete their trip.
 
FMCSA Response to Comments
 
 FMCSA believes the commenters have made compelling arguments 
against the agency taking any action that could adversely impact the 
current process for amending or revising the Criteria. The agency 
agrees with commenters that the current process for maintaining the 
Criteria provides an effective mechanism for Federal, State and 
Provincial officials and industry representatives from the U.S., 
Canada, and Mexico to work together to ensure uniform international 
enforcement tolerances. The agency believes that it is in the public 
interest to continue this process for ensuring highway safety, and 
facilitating international trade between the U.S., Canada, and Mexico.
 However, the agency does not share commenters' belief that the mere 
act of adopting the Criteria into the Code of Federal Regulations would 
adversely impact the current process for maintaining the document. The 
adoption of the Criteria would amend the FMCSRs such that Federal 
personnel could use only those criterion included in the Federal 
regulations. The Federal version of the Criteria could only be amended 
or revised through notice-and-comment rulemaking. By contrast, each 
State would be responsible for taking the necessary actions to adopt 
compatible requirements under State laws and regulations, with the 
authority of State enforcement personnel being limited by those State 
laws and regulations, not the Federal regulations. Since States would 
be responsible for having a mechanism or process for adopting 
compatible laws and regulations, the States could adopt enforcement 
tolerances that differ from those used by the FMCSA if the State 
believes there is a safety problem that is not adequately addressed 
through the Federal enforcement tolerances.
 Section 3114(c)(4) of Title 49 of the United States Code allows the 
States to adopt more stringent requirements than those specified in the 
FMCSRs. Under this provision, if the FMCSA determines that a State law 
or regulation is additional to or more stringent than a regulation 
prescribed under the authority of 49 U.S.C. 31136, the State law or 
regulation may be enforced unless the agency decides that (1) the State 
law or regulation has no safety benefit; (2) the State law or 
regulation is incompatible with the regulation prescribed by the 
agency; or (3) enforcement of the State law or regulation would cause 
an unreasonable burden on interstate commerce. This means that Federal 
requirements would not automatically preempt more stringent State 
requirements. Therefore, irrespective FMCSA's decision concerning the 
Criteria, the States could adopt more stringent enforcement tolerances 
than the FMCSA. This could include the States adopting criteria 
independently of the FMCSA's enforcement tolerances.
 If the Criteria includes more stringent guidelines for determining 
when to place a driver or vehicle out of service than the Federal 
policy provides, the States would in effect, be adopting more stringent 
enforcement tolerances than those used by the FMCSA. Also, since State 
personnel conduct the overwhelming majority of the more than 2.7 
million roadside inspections completed each year in the United States, 
FMCSA's adoption of the Criteria would not alter in any meaningful way, 
the enforcement tolerances that interstate motor carriers are subjected 
to during such inspections. Federal adoption would only increase the 
likelihood of creating inconsistencies between the enforcement 
tolerances used by Federal personnel and those used by State officials 
with no readily apparent benefit to motor carrier safety. Furthermore, 
such inconsistencies would only worsen the problems perceived by those 
persons who believe it is necessary to adopt the Criteria into the 
FMCSRs. Due to the success of the collaborative process currently used 
for amending or revising the Criteria, enforcement agencies throughout 
North America have achieved a level of uniformity that negates the need 
for separate enforcement tolerances for each jurisdiction.
 With regard to commenters who believe that incorporation-by-
reference of the Criteria would be less likely to disrupt the current 
process used to amend or revise the enforcement tolerances than 
including the text of the guidelines in the regulations, the FMCSA 
considers this to be a distinction without a meaningful difference. The 
Office of the Federal Register prescribes regulations (1 CFR part 51) 
concerning Federal agencies' incorporation-by-reference of publications 
prepared by non-Federal entities. Section 51.1 limits the incorporation 
to the specific edition approved by the Director of the Federal 
Register. Future amendments or revisions of the Criteria would not be
 
[[Page 43895]]
 
included. Incorporation of the Criteria would make it part of the 
regulations, regardless of whether the text appears in the Code of 
Federal Regulations. Also, material is incorporated as it exists on the 
date of the approval and a notice of any change in the materials must 
be published in the Federal Register. In terms of practical 
applications, codification of the Criteria would provide a means for 
the agency to request comments on only the criterion that would be 
amended or revised from year to year, as opposed to incorporation-by-
reference which would typically be an all-or-nothing proposition--a new 
edition would either be accepted in its entirety or rejected in its 
entirety. Although the agency could incorporate-by-reference portions 
of the Criteria while rejecting specific items, this approach would 
almost certainly make understanding the reference unnecessarily 
difficult from both an enforcement perspective and an industry 
perspective. Therefore, the agency has concluded that incorporation-by-
reference is not a practical alternative to codification of the 
Criteria text.
 In response to commenters who offered legal arguments suggesting 
that the agency must adopt the Criteria, the FMCSA does not believe 
those arguments have merit. The Criteria represent enforcement 
tolerances, and should not be construed to be regulations. The FMCSRs 
require compliance with all applicable requirements at all times. There 
is nothing in the FMCSRs that makes operating a commercial motor 
vehicle in interstate commerce, while violating any of the requirements 
contained therein, an acceptable practice. The agency recognizes that 
violations do occur and does not expect that motor carrier operations 
cease completely until 100 percent compliance is achieved. However, 
certain violations represent such serious safety risks to the motoring 
public that they must be corrected immediately. The Criteria presents a 
list of such violations developed over a period of more than 20 years 
by Federal, State and Provincial safety professionals, with input from 
the motor carrier industry, vehicle and equipment manufacturers, 
researchers, and other interested parties. The use of the Criteria is a 
matter of policy within FMCSA, so that the decision by Federal 
personnel to place a vehicle out-of-service is not an arbitrary action 
based solely on the discretion of the inspector. Likewise, the use of 
the Criteria by State officials is covered through either a documented 
policy, or State laws and regulations. The actions of State officials 
are based on the authority vested in them under their State statutes 
and should not be construed as arbitrary determinations by individual 
inspectors.
 
FMCSA Decision
 
 In consideration of the responses to the ANPRM, and for the reasons 
explained above, FMCSA has decided not to adopt the Criteria, either 
through codification of the text or through incorporation-by-reference, 
into the FMCSRs. FMCSA believes it is in the public interest that these 
enforcement tolerances be managed through a partnership between the 
Federal, State, and Provincial governments from the United States, 
Canada, and Mexico, with participation by the industry, motor vehicle 
and equipment manufacturers, researchers and other interested parties. 
The use of uniform international enforcement tolerances is necessary to 
ensure highway safety and to facilitate the efficient transportation of 
passengers and freight between States and Provinces, and between 
countries in North America.
 Therefore, this rulemaking proceeding is terminated.
 
 Issued on: July 11, 2003.
Annete M. Sandberg,
Acting Administrator.
[FR Doc. 03-18599 Filed 7-23-03; 8:45 am]