[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
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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
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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]