[Federal Register: August 19, 2003 (Volume 68, Number 160)]
[Proposed Rules]
[Page 49737-49756]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19au03-26]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 390, and 397
[Docket No. FMCSA-97-2180; formerly FHWA-97-2180]
RIN 2126-AA07
Federal Motor Carrier Safety Regulations: Hazardous Materials
Safety Permits
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Supplemental Notice of Proposed Rulemaking (SNPRM).
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SUMMARY: The FMCSA proposes to establish a safety permit program for
motor carriers that transport any of the following hazardous materials
in interstate or intrastate commerce: a highway route-controlled
quantity of a Class 7 (radioactive) material; more than 25 kg (55
pounds) of a Division 1.1, 1.2, or 1.3 (explosive) material; more than
one liter (1.08 quarts) per package of a material in Division 2.3,
Packing Group I, Hazard Zone A, or Division 6.1, Packing Group I,
Hazard Zone A; and a shipment of compressed or refrigerated liquid
methane or natural gas in a packaging having a capacity equal to or
greater than 13,248 L (3,500 gallons) for liquids or gases. As part of
this safety permit program, FMCSA proposes to consider additional
``acute'' and ``critical'' regulations relevant to its determination of
a carrier's safety fitness rating and, accordingly, the issuance of a
safety permit.
This rulemaking would implement requirements in Federal hazardous
material transportation law that DOT must establish a safety permit
program and a motor carrier must hold a safety permit in order to
transport certain hazardous materials in commerce. This rulemaking
would also carry out a statutory provision to issue regulations
requiring a pre-trip inspection and certification of a motor vehicle
used to transport a highway route controlled quantity of a Class 7
(radioactive) material.
This rulemaking would also announce the agency's decision to not
prescribe a uniform permitting system for intrastate transportation of
hazardous materials, as proposed in the 1993 notice of proposed
rulemaking to this action. Specifically, FMCSA would not require States
that issue permits for the intrastate transportation of hazardous
materials to use uniform forms and procedures, or to require each State
to register all persons who transport hazardous materials--or cause
hazardous materials to be transported--intrastate by motor vehicle.
FMCSA believes that it is not possible to devise a uniform system that
would satisfactorily anticipate, address and resolve the myriad of
permitting challenges and concerns that are unique to individual
States.
This proposed rule, if promulgated, will promote the safe and
secure transportation of the designated hazardous materials and enhance
motor carrier safety.
DATES: Comments must be received on or before October 20, 2003.
ADDRESSES: You can mail, fax, hand deliver or electronically submit
written comments to the Dockets 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://dmses.dot.gov/submit. You must include the docket
number that appears in the heading of this document in your comments.
You can examine and copy all comments at the above address from 9 a.m.
to 5 p.m., e.t., 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 http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov/search.htm
by typing the last four digits of the docket
number appearing in 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-line.
Comments received after the closing date will be included in the
docket, and FMCSA will consider late-filed comments to the extent
practicable. Anyone is able to search the electronic form of all
comments received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review DOT's
complete Privacy Act Statement in the Federal Register published on
April 11, 2000 (Volume 65, Number 70; pages 19477-78) or you may visit
http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mr. James Simmons, (202) 493-0496,
Hazardous Materials Division, Federal Motor Carrier Safety
Administration, U.S. Department of Transportation, 400 7th Street, SW.,
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15
p.m., EST, Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Statutory Background
Federal hazardous material transportation law, 49 U.S.C. 5101 et
seq., was enacted ``to provide adequate protection against the risks to
life and property inherent in the transportation of hazardous material
in commerce * * *''. Certain provisions of this law, including sections
5105(e), 5109, and 5119, apply only to the transportation of hazardous
material by motor vehicle. The authority for implementing these
provisions (except section 5109(f)) has been delegated to FMCSA under
49 CFR 1.73(d)(2)). (This authority was transferred from the Federal
Highway Administration (FHWA) to a separate Office of Motor Carrier
Safety, 64 FR 56270 (Oct. 19, 1999), which became FMCSA on January 1,
2000. See 64 FR 72959 (Dec. 29, 1999), and 65 FR 220 (Jan. 4, 2000)).
[[Page 49738]]
Section 5105(e) provides that DOT ``shall require by regulation
that before each use of a motor vehicle to transport a highway-route-
controlled quantity of radioactive material in commerce, the vehicle
shall be inspected and certified as complying with this chapter and
applicable United States motor carrier safety laws and regulations.''
This section also provides that DOT ``may require that the inspection
be carried out by an authorized United States Government inspector or
according to appropriate State procedures.'' The definition of a
``highway route controlled quantity'' of a Class 7 (radioactive)
material is set forth at 49 CFR 173.403, in terms of the activity level
of the radioactive material in a single package. In general, this is a
quantity that emits high levels of radioactivity and, accordingly, the
packaging, hazard communication, and operating requirements that apply
to a shipment of a highway route controlled quantity of a Class 7
material are intended to both adequately identify the presence of this
material and ensure that the packaging will withstand normal
transportation conditions and foreseeable accidents, without a breach
of containment integrity.
Section 5109 requires DOT to issue regulations for safety permits
for transporting certain hazardous materials. A motor carrier must hold
a safety permit issued by DOT, and keep a copy of the permit or other
proof of its existence in the vehicle, in order to transport certain
hazardous materials in commerce or cause such materials to be
transported in commerce by motor vehicle. 49 U.S.C. 5109(a). A person
may not offer such hazardous materials for motor vehicle transportation
in commerce unless the motor carrier has a safety permit. 49 U.S.C.
5109(f).
Under section 5109(b), a safety permit is required for the
following four hazardous materials, above threshold amounts established
by DOT, but DOT may also prescribe additional hazardous materials, and
the amount of each, to be subject to the safety permit requirement:
1. A Class A or B explosive (now Division 1.1, 1.2, or 1.3
explosive);
2. Liquefied natural gas;
3. Hazardous material designated as extremely toxic by inhalation;
and
4. A highway route controlled quantity of radioactive material.
Other provisions in section 5109 require DOT to issue regulations
for issuing safety permits, including application procedures; the
duration, term, and limitations of a safety permit; other conditions
needed to protect public safety; and procedures to amend, suspend, or
revoke a safety permit. In order to issue a safety permit, DOT must
find that the motor carrier is fit, willing, and able to (1) Provide
the transportation to be authorized by the safety permit; (2) comply
with Federal hazardous material transportation law and DOT's
regulations under that law; and (3) comply with applicable Federal
motor carrier safety laws and applicable minimum financial
responsibility laws and regulations. 49 U.S.C. 5109(a).
Section 5119 directed DOT to establish a working group of State and
local government officials to make recommendations to DOT with respect
to uniform forms and procedures for a State ``to register persons that
transport or cause to be transported hazardous material by motor
vehicle in the State'' and ``to allow the transportation of hazardous
material in the State,'' including ``whether to limit the filing of any
State registration and permit forms and collection of filing fees to
the State in which the person resides or has its principal place of
business.'' After receiving a final report from the working group, DOT
``shall prescribe regulations to carry out the recommendations
contained in the [final] report * * * with which the Secretary
agrees.''
Prior Proceedings
On June 17, 1993, the Federal Highway Administration (FHWA)
published in the Federal Register a notice of proposed rulemaking to
establish a safety permit program covering the four hazardous materials
specified in 49 U.S.C. 5109(b), including the requirement for a pre-
trip inspection of a motor vehicle to be used to transport a highway
route controlled quantity of Class 7 (radioactive) material. 58 FR
33418. In response to that notice, FHWA received more than 50 written
comments, and these comments have been considered in the preparation of
this SNPRM, as discussed below.
On November 17, 1993, the Alliance for Uniform HazMat
Transportation Procedures (Alliance), established under 49 U.S.C. 5119,
transmitted its recommendations to DOT, and it submitted its final
report to DOT on March 15, 1996. According to the Alliance, ``[a]ll but
nine states have some type of permitting and/or registration program
for hazardous materials transportation.'' November 17, 1993 Report, p.
2-7. The Alliance recommended that DOT:
1. Explore options for consolidating State registration programs
with the Federal registration program (applicable to shippers and
carriers by all modes and administered by DOT's Research and Special
Programs Administration (RSPA), under 49 U.S.C. 5108);
2. Consider waiving the Federal requirement for a safety permit for
a motor carrier that obtains a permit under a uniform State permit
program; and
3. Promote a one-stop repository for up-to-date information on
hazardous materials routing designations.
In its final report, the Alliance described a two-year pilot
project carried out in four States (Minnesota, Nevada, Ohio, and West
Virginia) of a ``base-state'' system for registration and collection of
fees and reciprocity between States that require permits.
FHWA decided not to proceed with further rulemaking action to
implement the requirements in 49 U.S.C. 5109 and 5105(e) until it had
considered the final report and recommendations of the Alliance. In its
July 9, 1996 notice published in the Federal Register (61 FR 36016),
FHWA (1) summarized the Federal permit and registration requirements in
the Federal hazardous material transportation law, (2) discussed the
activities and recommendations of the Alliance, and (3) invited
comments on the Alliance's final report and recommendations. In a
supplemental notice published in the Federal Register on March 31, 1998
(63 FR 15362), FHWA discussed the comments received in response to its
July 9, 1996 notice and directed a series of additional questions to
State agencies and motor carriers. Only 11 States responded to the
notice, and they did not reach a clear consensus on the direction FHWA
should take. State designations and restrictions of highway routes for
transporting hazardous materials have been published in the Federal
Register on June 9, 1998 (63 FR 31549), and Dec. 4, 2000 (65 FR 75771),
and are maintained on FMCSA's Internet Web site at http://hazmat.fmcsa.dot.gov
.
DOT has asked Congress to amend or repeal 49 U.S.C. 5109 three
times since 1997, because ``many States have different permit
requirements'' for carriers of hazardous materials and because the
agency believed it had appropriate safety monitoring systems in place
to address unsafe carriers transporting these materials. In addition,
the pilot project under 49 U.S.C. 5119 revealed that a uniform permit
system will not likely resolve different States' concerns that their
needs will be met, and raises additional concerns related to
unnecessary preemption and expenses of a parallel Federal permitting
system. In place of a Federal safety permit, DOT proposed that it
should be authorized to continue
[[Page 49739]]
its safety monitoring of carriers transporting hazardous materials and
consider alternative means of enhancing safety in motor carrier
transportation of hazardous materials, by such means as additional
monitoring of the safety performance of carriers and performing a
safety review of ``new entrants'' within 18 months of the date when the
carrier begins operations. (On May 13, 2002, FMCSA published an interim
final rule in the Federal Register establishing minimum requirements
for new entrant motor carriers. The rulemaking seeks to ensure that
they are knowledgeable about the applicable Federal regulations and
advises that FMCSA will conduct a safety audit as soon as the new
entrant has been in operation for enough time (generally, at least
three months) to have sufficient records to evaluate the carrier's
basic safety management controls. 67 FR 31978.)
The SNPRM
Congress has not eliminated the statutory requirement for a Federal
safety permit. Accordingly, the FMCSA is issuing a revised proposal in
this SNPRM. The FMCSA invites all interested persons to comment on this
revised proposal and hopes to issue a final rule that will phase in the
requirement for a safety permit over the 2005-2006 time period as motor
carriers submit or update their Motor Carrier Identification Report
(Form MCS-150) (according to the schedule set forth in 49 CFR
390.19(a)).
Hazardous Materials for Which a Safety Permit Would Be Required
In the 1993 NPRM, FHWA proposed that a motor carrier would be
required to hold a safety permit in order to transport in commerce any
of the four hazardous materials specified in 49 U.S.C. 5109(b), in the
same threshold quantities for which the carrier must submit a
registration statement and pay a registration fee under 49 U.S.C.
5108(a)(1)(A)-(D):
1. A highway route-controlled quantity of a Class 7 (radioactive)
material;
2. more than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3
(explosive) material;
3. more than one liter (1.08 quarts) per package of a poisonous-by-
inhalation (PIH) material in Division 2.3, Packing Group I, Hazard Zone
A, or Division 6.1, Packing Group I, Hazard Zone A; and
4. a shipment of compressed or refrigerated liquid methane or
natural gas in bulk packaging having a capacity equal to or greater
than 13,248 L (3,500 gallons) for liquids or gases.
Accordingly, the motor carriers required to hold a safety permit
would be a subset of the carriers required to register and pay a
registration fee, and no carrier that did not have to register would be
required to hold a safety permit. In this SNPRM, FMCSA is proposing the
same scope of the safety permit requirement, with the following
modifications from the proposals in the NPRM:
--For motor carriers already transporting these materials in interstate
or intrastate commerce, there would be a two-year phase-in period to
obtain a safety permit based on the schedule in 49 CFR 390.19(a) for
submitting or updating the Motor Carrier Identification Report (Form
MCS-150). Also, there would not be a separate three-year phase-in
period for motor carriers who transport explosives, based on the amount
of explosives transported in a single shipment, as proposed in the 1993
NPRM.
--Liquefied natural gas would include all liquefied gases having a
methane content of at least 85%.
In response to the 1993 NPRM, several commenters supported limiting
the scope of the safety permit requirement to the materials specified
in the statute. The Edison Electric Institute (EEI) stated that the
requirement to hold a safety permit should not be extended to
additional classes and quantities of hazardous materials ``unless and
until DOT gathers substantial evidence that such extension would
significantly enhance transportation safety,'' based on its view that
this requirement ``would impose additional administrative burdens on
affected motor carriers and on FHWA.'' EEI quoted the statement from
DOT's comments on H.R. 3520, which became the Hazardous Materials
Transportation Uniform Safety Act of 1990, Public Law 101-615, 104
Stat. 3244 (Nov. 16, 1990), that ``it is essential to begin with a
limited permitting program that is administratively practicable, and
then consider expanding the program, as determined necessary.'' House
Report No. 101-444, Committee on Energy and Commerce, 101st Cong., 2d
Sess., pp. 66-67 (April 3, 1990).
The Chemical Waste Transportation Institute (CWTI) recommended that
the requirement for a safety permit be broadened to cover all motor
carriers required to register and pay a registration fee under 49
U.S.C. 5108. CWTI stated that any motor carrier that transports a
quantity of hazardous material for which a placard is required ``should
have a safety rating to demonstrate that [its] safety rating is above
``unsatisfactory,''' and the ``only `new' administrative burden would
be that created by the requirement to `review' each subject motor
carrier's rating every three years.''
Two commenters, Tri-State Motor Transport Co. (Tri-State) and the
International Brotherhood of Teamsters, suggested that a safety permit
should be required for motor carriers that transport any hazardous
materials, without specifying any threshold amounts. According to Tri-
State, ``the sooner the program is expanded to cover all hazardous
materials the more effect it will have in reaching this goal.'' The
Teamsters noted that ``all classes of hazmat'' are involved in
hazardous materials incidents.
Additional comments addressed the specific hazardous materials for
which a safety permit would be required. With respect to explosives, a
construction industry association stated that a safety permit should be
required only for a carrier that transports large quantities of
explosives ``from manufacturer to the supplier,'' and that ``[e]xisting
OSHA regulations can cover the transportation'' by a contractor who
used explosives at a specific jobsite, because the 25 kg threshold ``is
often transported in a small `pick-up' type truck.'' The American
Pyrotechnics Association (APA) stated that requiring a safety permit to
transport more than 25 kg of Division 1.3 G explosives (including
``display'' fireworks) would present ``unnecessary burdens'' for this
industry. APA referred to the seasonal nature of this industry (around
July 4), its ``excellent safety record'' as reflected in the few
incidents in RSPA's Hazardous Materials Information System, and other
requirements such as: (1) provisions in the Hazardous Materials
Regulations (HMRs, 49 CFR parts 171-180) on training of hazmat
employees, and (2) the Federal Motor Carrier Safety Regulations (49 CFR
parts 350-399) for the driver to have a commercial driver's license
with a hazmat endorsement. APA stated that a requirement for a safety
permit ``will do nothing to enhance public safety beyond that which
will be achieved through the [hazmat] training,'' and it expressed
concerns that States will develop separate programs ``with duplicative
permit requirements and unnecessary, burdensome paperwork.'' APA asked
for a delay in the effective date of the safety permit program for
carriers of explosives, while the Idaho State Police opposed any
extension of the three-year phase-in period. Tri-State also recommended
reducing the three-year phase-in period.
[[Page 49740]]
In the NPRM, FHWA proposed to limit the poisonous inhalation (PIH)
materials for which a safety permit would be required to those Packing
Group I materials in Hazard Zone A. However, it asked for information
on materials in Hazard Zone B and whether the safety permit requirement
``should be expanded to include the transportation of [PIH] Hazard Zone
B hazardous materials,'' which ``include such widely distributed
chemicals as chlorine, hydrogen sulfide, ethylene oxide, and nitric
oxide, to name a few.'' (58 FR at 33420). Two State police forces
recommended including Hazard Zone B materials (California) or giving
further consideration to Hazard Zone B materials (Idaho); with Idaho
suggesting that ``safety is a greater concern under the safety permit
program than under the registration program,'' so that the reasons for
not requiring registration by carriers of smaller amounts of Hazard
Zone B materials (in a bulk container with a capacity less than 3,500
gallons) should not apply to the requirement for a safety permit. Three
other commenters opposed expanding the safety permit requirement to
Hazard Zone B materials, including the Oregon Public Utilities
Commission, which stated that safety would not be increased by
requiring a safety permit for ``all movements of chlorine'' and ``many
pesticide movements.''
Many comments addressed the proposal to require a safety permit to
transport ``liquefied natural gas,'' including the gases covered by
that term. Several persons said that the NPRM was ambiguous and could
be read to cover all Division 2.1 materials that can be a ``liquid
natural gas'' and all liquid fuels derived from natural gas. Air
Products and Chemicals, Inc. stated that ``liquefied petroleum gases
and natural gas liquids represent at least comparable safety risks and
require at least comparable carrier expertise,'' while the National
Propane Gas Association (NPGA) opined that ``propane, also known as
liquefied petroleum gas or LP-gas, was not included in the statute as a
product to be regulated through a permit,'' based on ``the historical
safety of the propane gas transportation system under the existing
comprehensive DOT regulatory system.'' NPGA stated that there is no
basis in legislative history or experience to require a safety permit
for all Division 2.1 hazardous materials. The American Petroleum
Institute recommended that the proper shipping name(s) of the specific
materials be set forth in the regulations, rather than references to
Division 2.1 materials. Three commenters stated that the use of the
term `in bulk' to refer to a container with a capacity of 3,500 gallons
or more would be confusing, because a ``bulk packaging'' is defined in
49 CFR 171.8 to include a container having a ``maximum capacity greater
than 450 L (119 gallons) as a receptacle for a liquid'' and a ``water
capacity greater than 454 kg (1000 pounds) as a receptacle for a gas.''
Yellow Freight System, Inc. supported the 3,500-gallon capacity
threshold for liquefied natural gas, because ``[l]ess than `in bulk'
quantities generally are less likely to pose an immediate danger to
public safety while in transit compared to `in bulk' shipments.''
In the preliminary cost-benefit analysis of this rulemaking (a copy
of which has been placed in the docket), the agency considered three
different lists of hazardous materials for which a safety permit would
be required:
Option No. 1 is the ``statutory'' list of the four categories of
hazardous materials in 49 U.S.C. 5109(b), at the same threshold
quantities for which registration is required. Under this option,
almost 2,500 motor carriers (including about 800 intrastate carriers)
would be required to obtain a safety permit.
Option No. 2 includes an ``expanded'' list of the following
hazardous materials, which would make approximately 6,500 motor
carriers (including about 1,830 intrastate carriers) subject to the
safety permit requirement:
--Explosive materials: any quantity of Division 1.1 and 1.2 materials;
more than 25 kg (55 pounds) of Division 1.3 materials; and more than
454 kg (1,000 pounds) of Division 1.5 materials.
--PIH materials (in Divisions 2.3 and 6.1): Hazard Zone A materials in
any quantity; a shipment of Hazard Zone B materials in a bulk packaging
(capacity greater than 450 L [119 gallons]); a shipment of Hazard Zone
C or D materials in a bulk packaging having a capacity equal to or
greater than 13,248 L (3,500 gallons).
--Flammable gases (Division 2.1), anhydrous ammonia (Division 2.2), and
poisons (Division 6.1, Packing Group I, other than PIH materials): a
shipment in a bulk packaging having a capacity equal to or greater than
13, 248 L (3,500 gallons).
--Organic peroxides: any quantity of a Type B, temperature controlled
organic peroxide (Division 5.2) material.
--Infectious substances (Division 6.2): any quantity of a select agent
or toxin regulated by the Centers for Disease Control and Prevention
(CDC) under 42 CFR part 73, except for laboratory samples.
--Radioactive (Class 7) materials: any ``exclusive use'' shipment of
Class 7 materials transported in accordance with 49 CFR 427(a) as well
as any highway route controlled quantity.
Option No. 3 would apply the requirement for a safety permit to all
motor carriers subject to the security plan requirements in 49 CFR
172.800, adopted in the final rule published by RSPA under docket No.
RSPA-02-12064 (HM-232) on March 25, 2003 (67 FR 14521). This would be
more than 16,250 motor carriers (including about 4,600 intrastate
carriers) that are required to register with RSPA and pay a
registration fee or transport a select agent or toxin regulated by the
CDC under 42 CFR part 73.
FMCSA continues to believe that the initial requirements for a
safety permit should apply to only those motor carriers that transport
the materials mandated by Congress (option No. 1). However, expanding
the existing statutory list to require a safety permit for motor
carriers that transport other hazardous materials (covered by option
Nos. 2 or 3) should provide the public with additional safety measures,
and FMCSA invites comments on whether the agency should, in the future,
apply the requirement for a safety permit to motor carriers that
transport the hazardous materials in the ``expanded'' or ``HM-232''
lists above.
Intrastate and Foreign Motor Carriers
The requirement to hold a safety permit in 49 U.S.C. 5109 applies
to both interstate and intrastate motor carrier operations within the
United States. In the 1993 NPRM, FHWA proposed to require that
intrastate motor carriers must comply with ``all applicable parts of
the FMCSRs'' in order ``to use the provisions of part 385, `Safety
Fitness Procedures,' in making determinations to issue, or deny, a
request for a safety permit for either interstate or intrastate motor
carriers'' (58 FR at 33421). Several commenters raised concerns about
applying the financial responsibility requirements in 49 CFR part 387
to intrastate carriers that are subject only to State requirements when
they use a smaller vehicle (having a gross vehicle weight rating of
less than 10,000 pounds) to transport the hazardous materials for which
a safety permit would be required.
As discussed below under ``Conditions for issuing a safety
permit,'' FMCSA is still proposing to require that a motor carrier have
a ``satisfactory''
[[Page 49741]]
safety rating in order to obtain a safety permit. Accordingly, an
intrastate carrier would be required to apply for a U.S. DOT number as
a ``new entrant'' and subject itself to a compliance review. The safety
rating issued by FMCSA to an intrastate carrier would be used only for
purposes of issuing a safety permit; the safety rating issued to an
intrastate carrier would not be posted on FMCSA's Web site nor would it
be used by FMCSA for any purpose other than determining whether the
carrier is entitled to a safety permit.
FMCSA does not consider that section 5109 is a mandate to make all
intrastate motor carriers subject to provisions in the FMCSRs that do
not already apply to them, including the financial responsibility
requirements in 49 CFR part 387. Except for the requirement to hold a
safety permit, in order to transport any of the designated hazardous
materials, and to undergo a compliance review in order to demonstrate
its fitness to hold a safety permit, an intrastate carrier would not
become subject to other requirements in the FMCSRs that do not already
apply.
The definition of ``interstate commerce'' includes foreign
commerce. Therefore, Canadian and Mexico-domiciled motor carriers
transporting HM permitted materials in the United States would be
subject to the requirements proposed in this SNPRM.
Application Procedures
Each motor carrier that conducts operations in interstate commerce
must submit to FMCSA a Motor Carrier Identification Report, Form MCS-
150, before it begins operations and on a two-year cycle thereafter
(the month and year of submission are based on the last two digits of
the carrier's U.S. DOT number). 49 CFR 390.19(a). Effective January 1,
2003, a ``new entrant'' motor carrier must also submit Form MCS-150A,
Safety Certification for Application for a U.S. DOT Number, and other
forms to obtain operating authority. 49 CFR 385.305.
In the 1993 NPRM, FHWA proposed to use a revised Form MCS-150 as
the application for a safety permit. Two commenters supported the use
of the MCS-150 form (with revisions) for applying for a safety permit.
Other commenters suggested combining the safety permit and registration
programs, in terms of a single application form, registration and
permit number, and expiration dates.
FMCSA believes that the safety permit program can best be
coordinated with the biennial report filed on Form MCS-150 (and Form
MCS-150A for a new entrant). Rather than revising the Form MCS-150,
however, FMCSA proposes to create a new Form MCS-150B for a motor
carrier to provide the limited additional information required for
issuance of a safety permit. FMCSA believes that keeping the safety
permit program part of the motor carrier identification and safety
fitness program with the same schedule for renewal will be more
efficient than attempting to combine the safety permit application with
the registration program (which applies to offerors and carriers by all
modes of transportation, allows registration for one, two, or three
years at the registrant's option, and operates on a mid-year basis
[July 1 to June 30] rather than a staggered cycle throughout a two-year
period).
Implementation of the safety permit requirement would be phased in
beginning January 1, 2005. The actual date of compliance would depend
on whether the motor carrier is already involved in the transportation
of a permitted material. A motor carrier that is not involved in the
transportation of a permitted material on January 1, 2005, would need
to apply for and receive a safety permit before it may transport any of
the hazardous materials for which a safety permit would be required.
However, a ``new entrant'' motor carrier that applies for a U.S. DOT
number after January 1, 2005, would be required to apply for a safety
permit (by submitting Form MCS-150B) during 2005 or 2006. Thus, until
the motor carrier that is already operating is required to renew its
U.S. DOT number during 2005 or 2006, it need not apply for a safety
permit. In all cases, a safety permit will be valid until the next date
for filing Form MCS-150 (in accordance with the schedule set forth in
49 CFR 390.19(a)(2) and (3)).
A draft of Form MCS-150B is available in the docket (at the DMS Web
site http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov), and interested persons are invited to submit
comments on that draft. As indicated on that draft, FMCSA proposes to
require that an official of the motor carrier must certify ``under
penalties of perjury,'' but not to require notarization. As in the 1993
NPRM, FMCSA is not proposing to charge a fee for applying for a safety
permit, but it may consider the need to assess an application fee in
the future, especially if the safety permit program is expanded to
apply to motor carriers of additional types and quantities of hazardous
materials.
Conditions for Issuing a Safety Permit
In the 1993 NPRM, FHWA proposed that its determination on an
application for a safety permit would be based ``upon a safety fitness
finding made pursuant to 49 CFR part 385.'' 58 FR at 33421. FHWA also
proposed authority to issue a temporary safety permit to an unrated
motor carrier, pending a safety fitness determination, when the carrier
has certified in its application that it is operating in full
compliance with the FMCSRs and HMRs, or comparable State regulations
(including financial responsibility requirements in part 387 or State
regulations, whichever is applicable). Under the 1993 proposal, a
temporary safety permit would remain in effect for no more than 120
days ``or until a safety rating is assigned, whichever occurs first''
(58 FR at 33424).
As in the 1993 NPRM, FMCSA proposes to require that a motor carrier
have a ``satisfactory'' safety rating in order to obtain a safety
permit. Appendix B to 49 CFR part 385 contains an explanation of the
safety rating process including a list of the regulations that FMCSA
considers ``acute'' (where noncompliance is so severe as to require
immediate compliance) and ``critical'' (where noncompliance relates to
management and/or operational controls). This SNPRM also proposes
additions to the list of ``acute'' and ``critical'' regulations in
Section VII of Appendix B to part 385.
FMCSA is also proposing to add two further conditions for issuing a
safety permit: (1) the motor carrier must show that it has a
satisfactory security program, and (2) the motor carrier must be
registered with RSPA (and remain registered). A satisfactory security
program would apply to motor carriers transporting hazardous materials
in commerce listed in this Supplemental Notice of Proposed Rulemaking
(SNPRM). A satisfactory security program must include: (1) A security
plan as prescribed in subpart I of Part 172 of this title, (2) means of
communication that will enable the vehicle operator to immediately
contact the motor carrier during the course of transportation as
required in this SNPRM, and (3) means of providing its hazardous
materials employees with security training for hazardous materials
employees. FMCSA is also proposing to issue a temporary safety permit,
valid for up to 270 days, to a motor carrier that does not have a
safety rating but certifies that it has a satisfactory security program
and is operating in full compliance with the HMRs, the FMCSRs or
comparable State regulations, and minimum financial responsibility
requirements in 49 CFR part 387 or State regulations (whichever are
applicable). However, FMCSA would not issue a temporary safety
[[Page 49742]]
permit to a motor carrier that, as indicated in the Motor Carrier
Management Information System (MCMIS), has a crash rate in the top 30%
of the national average; has a driver, vehicle, hazardous material, or
total out-of-service rate in the top 30% of the national average; or is
listed on FMCSA's SafeStat A, B, C, or D lists.
Comments to the 1993 NPRM supported use of the safety rating to
determine a motor carrier's fitness to hold a safety permit, but raised
questions about the manner in which a safety rating is assigned and
whether the 120 day limitation for a temporary safety permit was
sufficient, especially to cover all intrastate carriers that have not
previously been required to submit Form MCS-150 and obtain a U.S. DOT
number. The California Highway Patrol (CHP) recommended that a safety
rating be assigned only after a ``compliance review,'' with greater
emphasis on ``the mechanical condition of the carrier's vehicles,'' and
not a lesser ``safety review'' which it considered not to be
``sufficient to determine a carrier's actual safety compliance.'' CHP
also recommended that the compliance review be performed at the
principal location where hazardous materials operations take place,
rather than at its main office or headquarters which may be ``far
removed from the actual working locations.''
The Oregon Public Utilities Commission expressed concern that the
safety ``rating system is difficult to decipher and appears * * * to be
somewhat arbitrary'' with variations among different regions. Baker
Performance Chemicals, Inc. suggested that there be more discussion on
how the safety rating is determined. CWTI recommended that a written
notification of an ``unsatisfactory'' or ``conditional'' safety rating
include written notice that the carrier is prohibited from transporting
any of the hazardous materials for which a safety permit is required.
FMCSA believes that most, if not all, of the concerns expressed
about the safety rating system itself have been addressed in the 1997
revisions to 49 CFR part 385, including the addition of Appendix B to
that part (``Explanation of Safety Rating Process''). See the final
rules published May 28, 1997 (62 FR 28807), and November 6, 1997 (62 FR
60035). At present, FMCSA bases a safety rating only on a full
compliance review, and it retains the discretion to perform that review
at any of the motor carrier's facilities. FMCSA shares the concerns
that 120 days may not be sufficient time to perform a compliance review
for a motor carrier that does not have a safety rating, and the agency
proposes to allow a temporary safety permit to remain in effect for up
to 270 days, providing that the applicant satisfies all the conditions
for issuance of a temporary safety permit.
Permit Number and Evidence in the Vehicle
In the 1993 NPRM, FHWA proposed that its written notification of a
``satisfactory'' safety rating would ``serve as the safety permit and
shall include the safety permit number assigned.'' (59 FR at 33424) It
also proposed that the safety permit number must be ``clearly displayed
on shipping papers or the appropriate transportation document,'' in
order to meet the statutory requirement for the motor carrier to keep
``a copy of the permit, or other proof of its existence, in the
vehicle.'' 49 U.S.C. 5109(a). FHWA noted the prohibition in Sec.
5109(f) against a person offering a designated hazardous material for
transportation by motor vehicle unless the carrier holds a safety
permit, and it indicated that ``RSPA will subsequently initiate
rulemaking which will address shipper responsibility.'' (58 CR at
33419)
The National Motor Freight Traffic Association (NMFTA) supported
the use of a carrier's U.S. DOT number as the safety permit number and
stated that ``use of this number would minimize paperwork, inasmuch as
the assigned safety permit number would be displayed on the carriers'
transportation documents.'' It also stated that, since FHWA intended to
add a ``permit'' database to its existing information systems, ``safety
fitness and permit information would be readily available to federal
and state officials and enforcement personnel.'' CHP questioned whether
use of the U.S. DOT identification number would be sufficient because
``all private interstate motor carriers must obtain and display'' this
number. The Idaho State Police stated that ``there is no way for an
enforcement officer [to] know that the carrier has met the requirements
for having a safety permit,'' and it recommended the creation of an
approach providing ``adequate measures for ensuring that safety permit
numbers are legitimate and verifiable.''
Some commenters suggested that the same number should be used for
both registration and the safety permit, to cover the same period of
time, and that DOT should use information from the registration program
to issue safety permits to carriers with a U.S. DOT identification
number. CWTI suggested that the safety permit number should be included
on the registration certificate or another document carried on the
vehicle, rather than the shipping paper prepared by the shipper (or
offeror).
Other commenters objected to the proposed requirement that the
safety permit number must be on the shipping paper or stated that the
specific location and manner of displaying the safety permit number
needed to be addressed. Yellow Freight stated that law enforcement
officers should be able to determine ``through another source'' whether
a carrier holds a safety permit, and adding additional information to
shipping papers ``that is not essential to immediate safety concerns
will not enhance the transportation of hazardous materials.'' The
Institute of Makers of Explosives (IME) and the International Society
of Explosive Engineers (ISEE) stated that requiring the shipper to put
the carrier's safety permit number on the shipping paper would result
in more errors, as well as increase the time and effort of preparing
shipping papers. 3M suggested that the carrier (rather than the
shipper) should be responsible for putting the safety permit number on
shipping papers.
Associations of motor carriers endorsed the statutory requirement
that a shipper (or offeror) must verify that the carrier holds a safety
permit before offering a designated hazardous material for
transportation. 3M objected and Mobil stated that access to FMCSA's
Motor Carrier Management Information System (MCMIS) would be necessary
for a shipper to verify that it has a permit, and that there would be
no need to have the permit number on shipping papers if a carrier were
required to provide ``proof of fitness and safety permit issuance'' to
shippers. In addition, ISEE raised a concern about ``the availability
of explosives information to the public through the inclusion of
carrier permit information in MCMIS.''
In this SNPRM, FMCSA is no longer proposing that the carrier's
safety permit number must appear on the shipping paper, but the carrier
would be required to maintain a copy of the safety permit or another
document showing the permit number in the vehicle transporting a
designated hazardous material. A State or local law enforcement officer
would be able to confirm the validity of this number through real-time
or close to real-time information made readily accessible by FMCSA.
Section 5109(f) provides that a person may offer a designated
hazardous material to a motor carrier for transportation in commerce
``only if the carrier has a safety permit.'' The authority for
implementing this
[[Page 49743]]
provision has been delegated to RSPA. See 49 CFR 1.53(b)(2),
1.73(d)(2).
Written Route Plan and Communication
The 1993 NPRM included a proposal to require compliance with the
routing and route plan requirements then set forth in 49 CFR 177.825
(with regard to radioactive materials) and 397.9 (with regard to Class
A and B explosives). These requirements (now contained in 49 CFR 397.67
and 397.101) specify that the carrier must provide its driver with a
written route plan when the motor vehicle contains a highway route
controlled quantity of a Class 7 (radioactive) material or any quantity
of a Division 1.1, 1.2, or 1.3 (explosive) material.
FMCSA considers that preparation of and adherence to a written
route plan will improve the safety and security of transportation of
all materials for which a safety permit is required. Accordingly, in
this SNPRM, FMCSA is proposing to revise 49 CFR 397.67(d) to require
the carrier or its agent to prepare and provide its driver with a
written route plan covering any shipment of a PIH material or liquefied
natural gas for which a safety permit is required, in addition, to all
shipments of Division 1.1, 1.2, and 1.3 materials. We are also
proposing to require (in proposed Sec. 385.415) that the written route
plan be carried in the vehicle and followed, unless an alternate route
is required by a law enforcement officer or emergency conditions. The
written route plan when carried in the vehicle, must be maintained in
such a manner that ensures security requirements set forth in Subpart I
of part 172 of this title are met. The driver would no longer be
allowed to prepare the written route plan for the carrier, but the
driver would be required to amend the written route plan to show any
deviation. In addition, the driver would be required to communicate
with the carrier at least once every two hours and any time there is a
deviation from the written route plan, and the motor carrier would be
required to contact law enforcement officials in the event that there
has been no communication from its driver for more than three hours.
FMCSA is also proposing to require that the vehicle driver must
have in the vehicle, and make available to law enforcement officials
upon request, the telephone number of an employee of the motor carrier
who has a copy of the written route plan and is able to determine
whether the motor vehicle is on the route specified in that route plan.
Furthermore, FMCSA is proposing to require the motor carrier to
maintain a record of all communications with the vehicle driver during
transportation of a hazardous material for which a safety permit is
required, containing the name of the driver, identification of the
vehicle, the hazardous material(s) being transported, the date and time
of each communication, and each period of more than two hours without a
communication with the driver including a statement of the facts or
conditions that prevented communication for more than two hours.
Pre-Trip Inspections
To implement the pre-trip inspection requirement in 49 U.S.C.
5105(e), FHWA proposed in the 1993 NPRM to require an inspection of a
vehicle transporting a highway route controlled quantity of a Class 7
(radioactive) material, before each trip, in accordance with Appendix G
to the FMCSRs. FHWA also proposed that the inspector must have the
qualifications specified in 49 CFR 396.19 and that written
certification including certain information must be prepared and
retained by the carrier for one year. It invited comments on its
proposed inspection criteria and ``whether radiological monitoring
should be included.''
The comments on this topic addressed who should perform these
inspections, the inspection criteria, and whether or not the inspection
should include radiological monitoring. The Department of Energy (DOE)
and EEI expressed concern that a requirement for radiological
monitoring would duplicate the requirement in 49 CFR 173.441 to ensure
that a package containing radioactive material is checked before
shipment, but several other commenters supported a requirement for
monitoring as part of the pre-trip inspection. To the extent that
monitoring is performed, some commenters, including Tri-State, stated
that only the shipper has monitoring equipment and trained personnel so
that it (rather than the carrier) should perform the pre-trip
inspection. DOE endorsed ``the flexibility of allowing inspections to
be performed by inspectors from organizations other than the carrier
itself,'' and other persons (besides a motor carrier official) should
be allowed to sign the inspection certification. DOE also stated that
in any case, radiological monitoring should not be done by ``a
qualified vehicle inspector'' unless that person was also a qualified
health physicist.
Tri-State and CHP supported use of the proposed inspection criteria
and inspector qualifications in the FMCSRs. Others stated that the
criteria in Appendix G are not sufficient and suggested using standards
then under development by the Commercial Vehicle Safety Alliance
(CVSA). The Idaho State Police also recommended that ``in order to pass
the inspection, the vehicle must be defect free.'' CHP and Montana DOT
recommended that the inspection document or certification must be
carried on the vehicle.
In this SNPRM, FMCSA is proposing inspection standards similar to
those contained in the CVSA Level VI Inspection Program for Radioactive
Shipments. The pre-trip inspection would have to be performed by a
government inspector, (i.e., one employed by or under contract to a
Federal, State or local government). The inspector must have completed
an appropriate training program of at least 104 hours, including at
least 24 hours of training in conducting radiological surveys and
inspecting vehicles transporting highway route controlled quantity
(HRCQ) radioactive materials. The inspection must cover all applicable
requirements in the HMRs and FMCSRs, or compatible State regulations,
including 49 CFR parts 383 (commercial driver's license), 391 (driver
qualifications), 395 (hours of service), parts 393 and 396 (vehicle
condition), provisions in the HMRs on the transportation of radioactive
materials (49 CFR parts 171, 172, 173, and 178), and registration (49
CFR part 107, subpart G).
Denial, Suspension, or Revocation of a Safety Permit
As discussed above, in order to be issued a safety permit, a motor
carrier would have to be registered with RSPA and have a
``satisfactory'' safety rating and a satisfactory security program. A
temporary safety permit could be issued to a carrier that does not have
a safety rating, valid for up to 270 days; if the carrier receives a
``satisfactory'' safety rating, it would receive a safety permit, but
the temporary permit would be revoked if the carrier receives a safety
rating that is less than ``satisfactory.'' FMCSA is also proposing that
a safety permit will be subject to suspension or revocation if a
carrier fails to maintain its ``satisfactory'' safety rating or under
other specified circumstances, including the failure to submit a
renewal application or providing any false or misleading information on
a required application form; failure to maintain a satisfactory
security plan; failure to comply with an out-of-service order; failure
to comply with the FMCSRs, HMRs, or compatible State requirements, or
an order issued under any of these, in a manner that shows the
[[Page 49744]]
carrier is not fit to transport the hazardous materials for which a
safety permit is required; loss of its operating rights; and suspension
of its registration for failure to pay a civil penalty or abide by a
payment plan.
The SNPRM contains procedures for administrative review of a
denial, suspension, or revocation of a safety permit. A motor carrier's
rights to administrative review would depend on the ground for denial,
suspension, or revocation of the safety permit. In summary, where there
already exists a right to administrative review of the underlying basis
for denial, suspension, or revocation, the carrier must pursue its
existing rights to review. Accordingly, if the basis for denial,
suspension, or revocation of a safety permit is the carrier's failure
to receive or maintain a ``satisfactory'' safety rating, its review
rights are limited to those set forth in 49 CFR 385.15 (administrative
review of a proposed safety rating) and 385.17 (change to safety rating
based on corrective actions). If the basis for denial, suspension, or
revocation of a safety permit is the carrier's failure to pay a civil
penalty or abide by a payment plan, its review rights are limited to
the show cause proceedings set forth in 49 CFR 386.83(b) and 386.84(b).
When a denial, suspension, or revocation of a safety permit is
based on another ground, the SNPRM proposes that the carrier may submit
a written request for administrative review within 30 days after
service of a written notification that FMCSA has (1) denied a safety
permit, (2) immediately suspended or revoked a safety permit (when an
imminent hazard exists), or (3) proposed to suspend or revoke a safety
permit. The specific procedures that would apply to a request for
administrative review are contained in proposed Sec. 385.423(d).
State Permits
The 1993 NPRM contemplated that many States would continue to
require carriers to obtain a permit in order to transport hazardous
materials within the State. In the SNPRM, FMCSA proposes that the
Federal safety permit would be in addition to any required State
permit, but that FMCSA would issue a safety permit to a carrier without
further inspection or investigation when FMCSA is able to verify that
the carrier holds a safety permit issued by a State under a program
that is equivalent to the Federal safety permit program.
As stated in the 1993 NPRM, a State permit requirement would be
preempted ``if compliance with both the State and Federal permit
requirements is not possible, or if the State requirement creates an
obstacle to the accomplishment'' of Federal hazardous material
transportation law and the regulations.'' (58 FR at 33419) In addition
to these general preemption criteria now set forth in 49 U.S.C.
5125(a), a State may impose a fee for a permit to transport hazardous
materials, ``only if the fee is fair and used for a purpose related to
transporting hazardous material, including enforcement and planning,
developing, and maintaining a capability for emergency response.'' ( 49
U.S.C. 5125(g)(1)).
RSPA has stated that ``[a] permit may serve several legitimate
State police power purposes, and the bare requirement * * * that a
permit be applied for and obtained is not inconsistent with Federal
requirements. However, a permit itself is inextricably tied to what is
required in order to get it'' so that a permit requirement ``must be
considered together with the application requirements.'' Inconsistency
Ruling (IR) No. 2 (Rhode Island), 44 FR75566, 75570-71 (Dec. 20, 1979).
Accordingly, a State and local permit for hazardous materials
transportation is not preempted in all cases, but only when the
underlying requirements that must be fulfilled in order to obtain the
permit conflict with Federal hazardous materials law or the HMR. Id.;
Preemption Determination (PD) No. 14 (Houston), 63 FR 67506, 67510
(Dec. 7, 1998), 64 FR 949, 33952 (June 24, 1999); IR-28 (San Jose,
California), 55 FR 8884, 8890 (Mar. 8, 1990); IR-20 (Triborough Bridge
and Tunnel Authority), 52 FR 24396, 24397-98 (June 30, 1987); IR-3
(Boston), 46 FR 18918, 18923 (Mar. 26, 1981).
The November 17, 1993 report of the Alliance discussed the two
primary reasons that States carry out their own permit and registration
programs: (1) The issuance of a permit provides an enforcement
mechanism (suspension or revocation of the permit) if a carrier acts
irresponsibly or violates State transportation or environmental laws,
and (2) the registration or permit process provides a State information
about the business activities of persons who operate within the State
but are not based within the State. In its letter transmitting that
report, the Alliance stated that its members had operated under the
assumption that Federal hazardous material transportation law
``authorized a dual system for registering and permitting motor
carriers,'' and that a 1992 technical amendment to the law made this
explicit. The Alliance stated that the language in the two separate
sections of the law on a Federal safety permit and State permits (now
Sec. Sec. 5109 and 5119) does not restrict ``the types of hazardous
materials'' that may be covered under a State permit, and expressed
opposition to finding that a Federal safety permit program ``would
preempt state permitting of carriers of hazardous materials covered
under the federal program.''
CWTI concurred that a uniform State permit system proposed by the
Alliance and implemented under Federal regulations would not be subject
to preemption under the dual compliance and obstacle criteria,
contained in 49 U.S.C. 5125(a). It recommended that the applicability
of these criteria to State permits should be clarified in several
respects by placing the preemption standard in the regulations (rather
than just in the preamble) and explicitly stating that ``a motor
carrier holding a valid federal safety permit would be exempt from all
non-federal permit requirements.''
The Public Utilities Commission of Ohio stated that it would be
``against the public interest'' to establish a Federal program under
which a State permit program would be preempted with respect to the
hazardous materials for which a safety permit would be required, but
not with respect to other, ``lower risk'' materials. CHP asked for
further clarification of the preemption standard to be applied to State
permits, in light of the statement in the 1993 NPRM that a State permit
covering the ``same hazardous materials * * * based on a demonstration
of safety fitness'' would be preempted after implementation of a
Federal safety permit program. (58 FR at 33423)
Other persons submitting comments on the 1993 NPRM urged alignment
of the Federal and State programs, suggesting that States ``accept the
FHWA program'' (IME), ``closely align this permit program with the work
of the Alliance'' (Yellow Freight), ``see if one program could be
established'' under the Alliance proposal (Montana DOT), or ``consider
waiving the FHWA permitting requirement'' if a uniform State program
contained requirements that ``duplicate or exceed those contained in
the NPRM'' (DuPont).
FMCSA agrees that Federal hazardous materials transportation law
allows States to continue their permit requirements after the
implementation of a Federal safety permit requirement, and that, if a
State has a safety permit program that is equivalent to the
requirements in 49 U.S.C. 5109, FMCSA may properly accept the findings
of the State that a motor carrier is ``fit, willing, and able'' to
transport the designated
[[Page 49745]]
hazardous materials and to comply with the applicable laws,
regulations, and financial responsibility requirements. Section 5109
requires DOT to issue a Federal safety permit to a motor carrier that
meets these requirements, rather than simply allow the carrier to
operate under an equivalent State permit, so FMCSA proposes to issue a
Federal permit, without further inspection or investigation, when it
can verify that this condition exists. FMCSA encourages States to have
or implement a HM Permit program equivalent to a Federal permit that
will ultimately prevent duplication of a State and Federal requirement.
To the extent that a State permit program is equivalent to the
Federal requirements, no preemption issues would arise. It is only
differences between Federal and non-Federal requirements that should
raise issues of preemption. In this regard, FMCSA and RSPA consider
that the preemption criteria set forth in 49 U.S.C. 5125 will continue
to apply to non-Federal permit requirements, just as those criteria
have applied in the past, and that the impact on States of a Federal
permit program should be ``minimal.'' (58 FR at 33423)
Preemption would not necessarily arise simply if a State applies
its permit requirements to a smaller, larger, or different group of
hazardous materials, than those to be covered by a Federal safety
permit. In a recent determination, RSPA noted that it ``has considered
numerous challenges to non-Federal requirements without finding that
the specific requirements were preempted because they did not apply to
all hazard classes and all materials listed in the Hazardous Materials
Table in 49 CFR 172.101,'' although there are circumstances in which
``a specific non-Federal requirement that applies only to one hazardous
material may, indeed, be an obstacle to accomplishing and carrying out
Federal hazardous material transportation law or the HMR.'' PD-13(R)
(Nassau County), decision on petition for reconsideration, 65 FR 60238,
60241 (Oct. 10, 2000). As already discussed, in assessing a differing
State (or local) permit requirement, the issue will be whether the
underlying requirements that must be fulfilled in order to obtain the
permit conflict with Federal hazardous materials law or the HMR. The
preemption criteria set forth in 49 U.S.C. 5125 will continue to apply
to State permits, and it is not considered necessary to repeat those
criteria in the regulatory text of this final rule.
Related Regulations and Rulemaking Projects
As discussed above, in this SNPRM, we are proposing to require an
applicant for a safety permit to certify compliance with the HMR
security plan and training requirements adopted in a final rule
published by the Research and Special Programs Administration (RSPA) on
March 25, 2003 (68 FR 14509). That final rule, published under RSPA's
docket HM-232, requires persons who offer for transportation or
transport certain hazardous materials in commerce to develop and
implement security plans. The security plan requirement, codified in a
new subpart I of part 172 of the Hazardous Materials Regulations (HMR;
49 CFR Parts 171-180), applies to shipments of the following classes
and quantities of hazardous materials:
(1) A highway route-controlled quantity of a Class 7
(radioactive) material in a motor vehicle, rail car, or freight
container;
(2) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3
(explosive) material in a motor vehicle, rail car, or freight
container;
(3) More than one L (1.06 qt) per package of a material
poisonous by inhalation that meets the criteria for Hazard Zone A;
(4) A shipment of a quantity of hazardous materials in a bulk
packaging having a capacity equal to or greater than 13,248 L (3,500
gallons) for liquids or gases or more than 13.24 cubic meters (468
cubic feet) for solids;
(5) A shipment in other than a bulk packaging of 2,268 kg (5,000
pounds) gross weight or more of one class of hazardous materials for
which placarding of a vehicle, rail car, or freight container is
required;
(6) A select agent or toxin regulated by the Centers for Disease
Control and Prevention; and
(7) A quantity of hazardous material that requires placarding.
A security plan must include an assessment of possible
transportation security risks for shipments of the hazardous materials
listed above and appropriate measures to address the assessed risks.
Specific measures put into place by the plan may vary commensurate with
the level of threat at a particular time. At a minimum, a security plan
must cover personnel security, unauthorized access to shipments, and en
route security.
In addition, the HM-232 final rule requires all hazmat employees
(as defined in Sec. 171.8 of the HMR) to receive security awareness
training that provides an awareness of security risks associated with
hazardous materials transportation and methods to enhance
transportation security. This training must also include a component
covering how to recognize and respond to possible security threats.
As part of DOT's effort comprehensively to enhance hazardous
materials transportation security, FMCSA is conducting a field
operational test (FOT) to quantify the security costs and benefits of
an operational concept that applies technology and improved enforcement
procedures to hazardous materials transportation by motor carriers. The
FOT will demonstrate an approach that enhances the safety and security
of hazardous materials shipments from origin to destination by
examining possible vulnerabilities in the transportation system. In
parallel with the FOT, FMCSA will also conduct an independent
evaluation to ascertain whether the FOT met the objective of ensuring
the safety and security of hazardous materials shipments. This
evaluation will also include a benefit-cost analysis on the security
technologies tested, including remote vehicle tracking systems, remote
vehicle disabling systems, off-route alert systems, and electronic
ignition locks. We expect to begin the FOT in the fall of 2003 and
complete the FOT and evaluation by September 2004.
In a related action, on July 16, 2002, RSPA and FMCSA jointly
published an advance notice of proposed rulemaking (ANPRM) under docket
HM-232A to examine the need for enhanced security requirements for
hazardous materials transportation that would be in addition to the
security requirements adopted under HM-232 (67 FR 46622). The ANPRM
sought comments on the feasibility of specific security enhancements
and the potential costs and benefits of deploying such enhancements.
Security measures under consideration include escorts, vehicle tracking
and monitoring systems, emergency warning systems, remote shut-offs,
direct short-range communications, and pre-notification of shipments to
state and local authorities.
RSPA is currently evaluating comments received in response to the
HM-232A ANPRM to determine if additional security rulemaking is
necessary. This evaluation will include an examination of the security
threats posed by specific classes and quantities of hazardous materials
and an assessment of the effectiveness of specific operational or
technological measures in reducing security threats. Persons who may be
affected by the proposals in this NPRM should be aware that the ongoing
research and rulemaking projects described above may result in
modifications to the proposals in this NPRM.
[[Page 49746]]
Transportation Security Administration/Department of Homeland
Security will continue to evaluate security issues, and in the future,
may issue additional standards relating to security issues raised in
this rulemaking.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this rulemaking is a significant
regulatory action within the meaning of Executive Order 12866, and is
significant within the meaning of the Department of Transportation's
regulatory policies and procedures (DOT Order 2100.5 dated May 22,
1980; 44 FR 11034, February 26, 1979) because of significant public
interest in the issues relating to hazardous material permitting. The
FMCSA has estimated costs and benefits for three policy/regulatory
options. These estimates are discussed in detail in the full regulatory
evaluation contained in the docket. Option 1, the statutory option, is
the one preferred by FMCSA. It is an option involving a limited listing
of HM included by Congress in earlier rulemaking considerations. It is
anticipated that the economic impact of this rule, implementing option
1, would be $0.6 million in the first year and $10.5 million in each
subsequent year. The total discounted cost estimates are $74.5 million
over 10 years. The costs and benefits for this NPRM are discussed
below.
Permit Applications. Industry costs directly tied to obtaining a
permit include obtaining an application form, completing the
information requested on the form, and submitting the form to FMCSA.
Using data from RSPA on carriers that are registered with DOT under the
provisions of 49 CFR Part 107 (FY 2002, most recent year available),
FMCSA estimates that 2,434 carriers will be subject to this proposed
rule. FMCSA estimates that it will take carriers 2 hours to obtain and
complete the initial permit application at a total cost per carrier of
$42 ($15 per hour plus fringe benefits). There are no permit
application fees under the proposed program. The industry would thus
incur an estimated $102,228 in permit application costs. This is a one
time non-recurring cost.
Permit renewal applications would be required every two years. The
estimated burden to complete a renewal application is 15 minutes per
carrier per year. This involves gathering some information and checking
off a few additional boxes on the MCS-150 Form. Using the same unit
cost of $15 per hour plus fringe benefits, the annual costs to industry
are estimated at $12,789.
Safety Record Standards Compliance. FMCSA data show that 1,865
motor carriers subject to the requirements proposed in this rule do not
currently possess a satisfactory safety rating and will need to obtain
one as part of the permit process. This includes carriers without a
current safety rating and those whose most recent safety ratings were
unsatisfactory or conditional. Carriers who transport HRCQ or
radioactive materials (RAM) are assumed to have met the safety record
requirements of this rule through their compliance with regulations
imposed by the Department of Energy and the Nuclear Regulatory
Commission. FMCSA assumes that a typical carrier will spend $182
preparing for the compliance review necessary to obtain a new safety
rating. This includes 2 hours for the carrier's safety director and 6
hours for a clerk to gather and process the necessary information. The
total one-time non-recurring permit application and safety compliance
costs to industry are, therefore, estimated to be $339,430.
Operational Costs. The proposed rule imposes four requirements on
carriers that will result in increased costs, most of which will recur
annually. The rule requires that drivers must be able to contact the
carrier and/or law enforcement in emergencies. While many carriers
employ sophisticated satellite communication systems, FMCSA assumes
that cell-phone type service will meet these requirements and that 90
percent of the vehicles in service already have such a device. The
service life of the communications equipment is assumed to be 10 years.
Utilizing data from the 1997 Vehicle Inventory and Use Survey (VIUS),
FMCSA estimates the total number of vehicles affected by the proposed
regulations to be 12,500. Ten percent of these vehicles will require
new equipment, estimated at $100 per vehicle, as well as a
communications service plan, estimated at $60 per month. The one-time
non-recurring communication requirement cost to industry is expected to
be $125,000 (1,250 vehicles x $100/vehicle) and $900,000 annual cost in
subsequent years (1,250 vehicles x $60/month x 12 months).
Under current requirements for the Commercial Vehicle Safety
Alliance (CVSA) Level VI inspections, point of origin inspections are
conducted on all shipments of HRCQ or radioactive materials (RAM).
Carriers of these HM are required to have route plans and satisfy
conditions for expeditious delivery. As such, HM carriers would not
incur extra costs under the proposed permit program to satisfy point-
of-origin inspections and route plan requirements.
The proposed rule requires carriers to develop and maintain route
plans and ensure that route verification contact numbers are carried on
the vehicle so that law enforcement could verify the correct location
of the shipment. It is believed that the carrier's representative
responsible for developing the route plans would be the one to ensure
the numbers are placed in the vehicles and available for inspection. It
was also assumed that the same individual would ensure that the permit
verification number is placed in the vehicle. A unit cost of $5.25 per
shipment was based on an hourly rate of $21 (including fringe benefits)
for a clerk and 15 minutes to complete the task and was derived from
comments to the joint FMCSA/RSPA ANPRM entitled ``Security Requirements
for Motor Carriers Transporting Hazardous Materials,'' published July
16, 2002 (67 FR 46622) (FMCSA Docket No. 2002-11650). FMCSA realizes
that some shipments are moved along the same routes repeatedly between
given origins and destinations and new route plans would not need to be
generated each year for these shipments. Further, the HM permits would
be valid for two years and the carrier contact numbers are not expected
to change frequently, if at all. Therefore, developing route plans and
providing verification contact numbers and permit numbers in the
vehicles are assumed to be repeated for only 50 percent of the
shipments in a given year. The annual number of shipments, 1,221,144,
were estimated with FMCSA data and VIUS data on the number of vehicles
transporting different HM and assumptions regarding the anticipated
number of trips per vehicle per year. Class 1.1, 1.2, and 1.3 and HRCQ
RAM shipments were excluded as they already meet the proposed
requirements. The estimated annual costs for industry compliance is
$3,205,503 ([1,221,144 annual shipments] x [\1/2\ of shipments
requiring action] x [$5.25/shipment]).
The cost to a carrier to document and maintain written
communication records between itself and its drivers assumes 15 minutes
of a clerk's time per shipment. All shipments are considered to require
this documentation. The estimated annual cost for this requirement is
$6,411,006 ([1,221,144 annual shipments] x [$5.25/shipment]).
Benefits. The benefits of the proposed HM permit program include
improved
[[Page 49747]]
safety due to reductions in accidental and intentional HM releases.
Secondary benefits were also considered. Among the secondary benefits
is the reduction in incident delays, evacuations, product losses,
property damages, environmental damages and cleanups. For accidental
releases, incident cost estimates for specific hazard classes from a
prior FMCSA risk study were combined with estimates of the number of
crashes expected to occur annually in each hazard class among the
permitted shipments. FMCSA assumes that the safety elements of the
proposed permitting program will reduce the number of HM incidents
among permitted shipments by 25 percent. Therefore, the expected annual
benefit from reducing accidental HM releases is $2,025,000.
The potential benefits of reducing intentional releases due to
increased security measures are consistent with those analyzed in the
NPRM for HM-232. The security measures under the HM-232 NPRM are
consistent with, and applicable to, the proposed permitting program.
Therefore, a separate analysis of the benefits of security was not
conducted.
It is difficult to accurately ascertain the direct benefit of this
proposal insofar as its impact upon reducing the malicious use of
hazardous materials in transportation. To begin with, the actual costs
that an averted terrorist attack of this nature would have imposed, and
its probability of success with and without these measures, is
unknowable. Terrorism is a fairly new phenomenon, and we have little
notion of a likelihood function under the current conditions for HM
transportation or under this proposal regarding hazardous materials
permitting procedures. Similarly, we have little idea of the expected
cost of a terrorist attack, given that one occurs. So although the
theory for calculating the benefit is straightforward and simple,
finding actual data for a future attack is not possible.
For purposes of this analysis and given the lack of data in this
area, FMCSA has assigned 1/1000 as the probability that this proposal
would be decisive in stopping an incident involving the malicious use
of hazardous materials. FMCSA interprets this to mean that this
proposal would result, over the next 1,000 years, in one additional
year that is free from a malicious hazardous materials incident than
would have occurred without these procedures. Interpreted differently,
FMCSA estimates that this proposal would completely foil one of the
next 1,000 attempted malicious hazardous materials incidents. FMCSA
interprets this to mean that this proposal would make each attempted
malicious hazardous materials incident less likely to inflict its
intended damage. Alternately, one could interpret this to mean that
these procedures will completely foil one of the next 1,000 attempted
malicious hazardous materials incidents.
Next, FMCSA derived a scaled estimate of $25 billion as the cost of
a malicious hazardous materials incident (This figure is based upon the
lowest estimate reported of the most costly terrorist attack ever--the
September 11th attacks and the costs of other recent terrorist attacks
occurring in the past ten years. Please refer to the regulatory
evaluation for this rulemaking, Hazardous Materials Carrier Permitting
Program; Benefit-Cost Analysis of Permitting Options, for a more
detailed discussion of how the scaled estimate was derived).
Finally, we multiplied the scaled estimate of the cost of a
malicious hazardous materials incident by the probability estimate as
follows: $25 billion x .001 =$25 million. Therefore, FMCSA estimates
that this proposal would result in a direct benefit of $25 million each
year for the ten-year planning horizon, insofar as it relates to a
malicious hazardous materials incident. When calculating total
benefits, these should be discounted using a standard 7% rate. We limit
the analysis to ten years to conform to FMCSA analytical standards.
(FMCSA uses a 10-year time frame for all its regulatory analyses to
allow comparability from one rule to another.) There is no reason to
believe that the benefits would stop unless the policy underlying this
proposed rulemaking was to be changed.
Therefore, the combined annual direct benefit of this proposal
would be $27 million ($2 million (rounded) + $25 million). FMCSA
invites comments from the public to assess any potential costs or
burdens that may be associated with this proposal.
Executive Order 13175 (Tribal Consultation)
The FMCSA has analyzed this action under Executive Order 13175,
dated November 6, 2000, and believes that the proposed rule would not
have substantial direct effects on one or more Indian tribes; would not
impose substantial direct compliance costs on Indian tribal
governments; and would not preempt tribal law. Therefore, a tribal
summary impact statement is not required.
Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this proposed rule under Executive Order 13211,
``Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use.'' FMCSA has preliminarily determined that
this action would not be a significant energy action under that
Executive Order because it is not likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, a
Statement of Energy Effects under Executive Order 13211 is not
required.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532, et seq.) requires each agency to assess the effects of its
regulatory actions on State, local, tribal governments, and the private
sector. Any agency promulgating a final rule that is 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. The FMCSA has determined that the changes proposed in this
rulemaking would not have an impact of $100 million or more in any one
year.
Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601-612) requires each
agency to analyze proposed regulations and assess their impact on small
businesses and other small entities to determine whether the proposed
rule is expected to have a significant impact on a substantial number
of small entities. Based on the assessment in the accompanying
regulatory evaluation, and the absence of contradictory information
submitted to the docket during the public comment period, FMCSA
certifies that the proposals in this rulemaking are not applicable to a
substantial number of small businesses.
The definition of ``small businesses'' has the same meaning as
under the Small Business Act, established by the Small Business
Administration (SBA), Office of Size Standards and codified in 13 CFR
121.201 . The FMCSA evaluated the effects of this proposed rule on
small business entities, including as applicable small businesses,
small non-profit organizations, and small governmental entities with
populations under 50,000. Many of these small business entities operate
as motor carriers of property in interstate or intrastate commerce.
[[Page 49748]]
Goal of the SNPRM. FMCSA is required by the Hazardous Materials
Transportation Uniform Safety Act (HMTUSA) of 1990 to develop and
implement a new motor carrier safety permit program. The safety permit
program is intended to enhance the safety and security of certain
hazardous materials shipments that, if released either accidentally or
intentionally during transportation, have the potential to kill or
injure large numbers of people and damage property and the environment.
Description of Actions. This SNPRM identifies specific fitness,
financial and regulatory criteria for interstate and intrastate motor
carriers to qualify and obtain a safety permit from FMCSA. Criteria
include imposing operational security requirements, setting minimum
safety and security standards, and making safety and security
assessments of carriers to ensure compliance with operational, safety,
and security standards. The specific hazardous materials covered by
this permit program are: highway route-controlled quantities of a Class
7 radioactive material; more than 25 kg (55 pounds) of a Division 1.1,
1.2, or 1.3 (explosive) material; more than one liter (1.08 quarts) per
package of extremely toxic-by-inhalation hazardous material; and
compressed or refrigerated liquid methane or natural gas in bulk
packaging of 13,248 liters (3,500 water gallons) or more.
Identification of potentially affected small entities. The proposed
rule would affect intrastate and interstate carriers of hazardous
materials. The number of small carriers is determined based on the
Small Business Administration (SBA) definition used for the RSPA
registration file. RSPA flags the small carriers in their registration
system based on the number of employees or annual revenue. Of the 2,434
total carriers expected to be affected by this proposed rule, 1,816
have been estimated to be small entities.
In addition to small carriers, other small businesses and small
entities potentially could be affected by the proposed permit system.
Small businesses that provide services to small carriers, offer
hazardous materials for transportation, or receive shipments could also
be affected by the proposed rule. The customers and suppliers of small
carriers could be adversely affected if a carrier were prohibited from
shipping certain hazardous materials because a permit was denied or
revoked. Similarly, local government entities such as police could be
affected by the proposed hazardous materials permitting requirements.
Local police would be notified anytime three or more hours elapsed
after the last time that a communication was received from the driver
of a hazardous materials vehicle covered by the permit. This probably
would require the expenditure of law enforcement resources to
investigate the communication lapse. The number of local police
entities that would be involved is difficult to estimate before the
permit program is implemented. It has been determined that 1,816 small
motor carriers will be affected by the statutory requirements of this
rule. Based on an expert judgment, the number of small businesses
affected by this rule, excluding small motor carriers, was determined
by doubling the number of small carriers affected by the statutory
requirements. The application of expert judgment suggests that there
could easily be two or more of these entities for each of the small
carriers affected. Therefore, it is estimated that as many as
approximately 4,000 small businesses could potentially be affected by
the rule.
Reporting and recordkeeping requirements. This SNPRM proposes
several new or modified recordkeeping requirements. While they have not
been fully defined, they are detailed in the section of this preamble
entitled ``Paperwork Reduction Act.'' FMCSA has built flexibility into
the proposed requirements, so that entities can choose the method by
which they comply with the proposals. For example, there is no
prescribed method of communication between the driver and the carrier.
Carriers are permitted to use any system which meets the performance
criteria specified. Similarly, there are no specifications for the
manner in which carriers develop and maintain route plans, allowing
either electronic or paper-based approaches to be used. Entities can
assess their own situations and tailor the requirements to fit them.
Related Federal rules and regulations. If this rule is adopted as
proposed, FMCSA will eliminate possible conflict with two pieces of
legislation: 49 U.S.C 5119 and U.S.C. 5105(e). 49 U.S.C. 5119
authorizes states to participate in the Alliance. The FMCSA intends to
automatically issue a Federal permit to a carrier that obtains a permit
from a State that is part of the Alliance program or another state that
has a program equivalent to the Federal permit program in operation.
Therefore, a comparable state program will be deemed equivalent to the
Federal HM Permit Program and no statutory conflict will exist. The
other area is the Point of Origin Inspections for Highway Route
Controlled Quantities (HRCQ) shipments that are required by 49 U.S.C.
5105(e). These inspections are currently being conducted via the CVSA
Level VI Enhanced Radioactive Materials Inspection Program. This
current program would fulfill the requirements of this proposed rule
and thus prevent any statutory conflict.
Alternate proposals for small businesses. The Regulatory
Flexibility Act directs agencies to establish exceptions and differing
compliance standards for small businesses, where it is possible to do
so and still meet the objectives of applicable regulatory statutes.
There are no significant alternatives to the proposed rule that would
accomplish the stated proposed HM permitting rule and which would
minimize any significant economic impact of the proposed rule on small
entities. Alternative permitting systems, such as that of the Alliance
program, could address national permitting needs if expanded to include
all states, but the effects on small entities would be the same as
under the proposed rule because the same requirements and provisions
would be in effect.
We developed this SNPRM under the assumption that small businesses
make up the majority of entities that will be subject to its
provisions. Thus, we considered how to minimize the expected compliance
costs as we developed this SNPRM.
Based on the discussion of the potential costs of this SNPRM in the
section of this preamble entitled ``Executive Order 12866 and DOT
Regulatory Policies and Procedures,'' FMCSA certifies that although
this rulemaking would impose a significant economic impact on those
small business entities, these small entities do not represent a
substantial number of small businesses within the trucking industry.
The Research and Special Programs Administration (RSPA) identifies the
small carriers in their registration system based on the number of
employees or annual revenue, consistent with the Small Business
Administration's Small Business Size Standards, which are matched to
the North American Industry Classification System (NAICS). FMCSA
estimates the costs to a small carrier to comply with this proposed
rule to be $4,512 in the initial year, and $4,093 in subsequent years.
A summary and breakdown of these first-year and annual costs is shown
in Table 1. Note that the number of shipments was determined by using
data provided by FMCSA in conjunction with U.S. Census Bureau Vehicle
Inventory and Use Survey (VIUS) data for the number of trucks
transporting particular HM, and assumptions regarding the anticipated
number of
[[Page 49749]]
trips per vehicle per year. Communication requirements were assumed to
be satisfied with a cell-phone-type service. Costs were calculated
based on the assumption that 90 percent of the vehicles already have
such a device and only 10 percent of the total vehicles will need new
devices. Additionally, the table shows that the cost for route plans,
route verification contact numbers, and permit verification is only
half that of communication recordkeeping requirements. This is because
the route planning activities are applied to only one half of
shipments. Divisions 1.1 and 1.2 and HRCQ of RAM were excluded because
all shipments of these materials have routing requirements under
current DOT regulations. Finally, the unit cost is assumed to be a
clerk's hourly pay of $15/hour plus fringe benefits (40%) for a total
of $21/hour. A unit cost of $5.25 represents fifteen minutes of a
clerk's labor.
Table 1.--Cost Summary per Small Carrier
----------------------------------------------------------------------------------------------------------------
Cost per
Cost per carrier for
Permit related activity Unit cost carrier for successive
first year years
----------------------------------------------------------------------------------------------------------------
Permit application...................... $21/hour.............................. $42.00 N/A
Permit renewal.......................... 21/hour............................... N/A $5.25
Safety record compliance................ 182/carrier........................... 182 N/A
Communication requirements.............. 100/vehicle, 60/month service......... 1,640 1,440
Route plans; route verification contact 5.25/shipment......................... 883 883
numbers; permit verification.
Communication record keeping 5.25/shipment......................... 1,765 1,765
requirements.
-----------------------------------------
Total Cost per Small Carrier........ ...................................... 4,512 4,093
----------------------------------------------------------------------------------------------------------------
Paperwork Reduction Act
We submitted the information collection and recordkeeping
requirements contained in this SNPRM to the Office of Management and
Budget (OMB) for approval under the provisions of the Paperwork
Reduction Act of 1995, Section 1320.8(d). Title 5, Code of Federal
Regulations requires FMCSA to provide interested members of the public
and affected agencies an opportunity to comment on information
collection and recordkeeping requests. Under the Paperwork Reduction
Act, no person is required to respond to an information collection
unless it has been approved by OMB and displays a valid OMB control
number.
FMCSA currently has an approved information collection under OMB
Control No. 2126-0013, ``Motor Carrier Identification Report'' with
74,250 burden hours and $0 cost. There will be an increase in the
burden for OMB Control No. 2126-0013 due to extension of the data
collection requirements to intrastate motor carriers that transport the
permitted hazardous materials. Using RSPA registration data, it is
estimated that 797 intrastate motor carriers will be required to comply
with this current data collection, with an annual burden per carrier of
2 hours. In addition, there will be a new information collection burden
for the new requirement to submit initial and renewal permit
applications. This new information collection, ``Hazardous Materials
Safety Permits,'' will be assigned an OMB control number after review
and approval by OMB.
The new information collection requires that the carriers provide
estimates of the anticipated annual shipments. It is assumed that this
information would be readily available for large carriers, which would
apply an inflationary estimate to the prior year's number from their
database. Small carriers would either have a ready estimate (due to a
limited number of shipments) or, more likely, could determine their
prior year shipment totals from data they are required to maintain to
support their reporting under the International Fuel Tax Agreement
(IFTA) and International Registration Plan (IRP).
The burden to provide estimates of anticipated shipments are as
follows: small carriers--30 minutes and large carriers--15 minutes. It
is estimated that an additional 0.25 burden hours (15 minutes) per
carrier will be required to complete the permit application form,
including information, such as, carrier name and address, DOT number,
etc. This results in a total burden of 1,671 hours as follows: [1,816
small carriers (596 intrastate + 1,220 interstate) x 0.75 hours per
carrier = 1,362 hours] + [618 large carriers (201 intrastate + 417
interstate) x 0.50 hours = 309 hours].
Permit renewal will require carriers only to check-off a few
additional boxes on the new MCS-150B Form as well as providing
estimates of the annual shipments. The burden hours to check-off the
additional boxes on MC-150B Form are considered negligible. The time
required to gather the required information for the permit renewal is
considered to be part of the time in estimating the number of
shipments.
The proposed permitting program requires that carriers develop and
maintain route plans and ensure that route verification contact numbers
are carried in the vehicle. These provisions would add an average
burden of 0.25 hour per day per carrier. The total burden hours were
estimated assuming 260 working days in a year, based on an average of
five working days per week--and one shipment per day on average. FMCSA
realizes that some shipments are moved along the same routes repeatedly
between given origins and destinations and new route plans would not
need to be generated each year for these shipments. Further, the HM
permits would be valid for two years and the carrier contact numbers
are not expected to change frequently, if at all. Therefore, in
estimating the burden hours involved in developing route plans and
providing verification contact numbers and permit numbers on the
vehicles, it was assumed that this activity will be repeated for only
50 percent of the shipments in a given year or 130 days per year [i.e.,
0.5 x 260 = 130 days]. Thus, the burden hours for this activity is
estimated as 79,105 hours [i.e., 2,434 (797 intrastate + 1,637
interstate) x 32.5 hours (0.25 hours per day x 130 days per year) =
79,105 hours].
The proposed permitting program also requires carriers to maintain
written records of the communication between drivers and the carriers.
The types of information required includes time of communication, HM
transported, vehicle, and reasons for any communication lapses. While
drivers and carriers are required under the
[[Page 49750]]
proposed permitting program to be in frequent contact, this requirement
places an additional reporting burden on the carriers. It is assumed
that recording and maintaining these communications between the driver
and carrier adds a burden of 0.25 hour per day on average per carrier.
The total burden hours were similarly estimated assuming 260 working
days in a year to be 158,210 hours as follows: [2,434 (797 intrastate +
1,637 interstate) x 65 hours (0.25 hours per day x 260 days per year) =
158,210 hours].
The total burden hours for the proposed rule are summarized in
Table 2.
Table 2.--First-Year Burden Hours
----------------------------------------------------------------------------------------------------------------
Carriers Burden hours
-------------------------------------------------------------------------------
Intrastate Interstate Total Per carrier Total
----------------------------------------------------------------------------------------------------------------
Increased reporting under OMB 797 N/A 797 2 1,594
Control No. 2126-0013..........
Annual shipment estimates:
Small carriers.............. 596 1,220 1,816 0.75 1,362
Large carriers.............. 201 417 618 0.50 309
Written route plans, 797 1,637 2,434 32.5 79,105
verification number details,
copy of permits................
Maintaining communications 797 1,637 2,434 65 158,201
records........................
-----------------
Total....................... .............. .............. .............. .............. 240,580
----------------------------------------------------------------------------------------------------------------
In subsequent years, we estimate that burden hours would include
the permit renewal application and the time to provide shipment
estimates, route plans, and communication records as indicated above.
Given the biennial renewal process, the burden hours for application
renewal and shipment estimates would be half as many in subsequent
years. However, the burden hours for maintaining route plans and
communication records will be the same for all years. Subsequent-year
burden hour estimates are shown in Table 3.
Table 3.--Subsequent-Year Burden Hours
----------------------------------------------------------------------------------------------------------------
Carriers Burden hours
-------------------------------------------------------------------------------
Intrastate Interstate Total Per carrier Total
----------------------------------------------------------------------------------------------------------------
Increased reporting under OMB 797 N/A 797 1 797
Control No. 2126-0013..........
Annual shipment estimates:
Small carriers.............. 596 1,220 1,816 0.375 681
Large carriers.............. 201 417 618 0.25 154.5
Written route plans, 797 1,637 2,434 32.5 79,105
verification number details,
copy of permit:................
Maintaining communications 797 1,637 2,434 65 158,210
records........................
-----------------
Total....................... .............. .............. .............. .............. 238,151
----------------------------------------------------------------------------------------------------------------
We estimate that the new total information collection and
recordkeeping burden resulting from the additional Motor Carrier
Identification Reports and permit applications under this rule are as
follows.
Motor Carrier Identification Report
[OMB No. 2126-0013]
Total Annual Number of Respondents: 275,297.
Total Annual Responses: 275,297.
Total Annual Burden Hours: 75,844.
Total Annual Burden Cost: $0.
Hazardous Materials Permit
[OMB No. 2126-xxxx]
First Year Annual Burden:
Total Annual Number of Respondents: 2,434.
Total Annual Responses: 1,835,367.
Total Annual Burden Hours: 240,580.
Total Annual Burden Cost: $0.
Subsequent Year Burden:
Total Annual Number of Respondents: 2,434.
Total Annual Responses: 1,835,367.
Total Annual Burden Hours: 238,151.
Total Annual Burden Cost: $0.
Send comments to the Office of Information and Regulatory Affairs,
Office of Management and Budget, 725 Seventeenth Street, NW.,
Washington, DC 20503, Attention: DOT Desk Officer. We particularly
request your comments on whether the collection of information is
necessary for the FMCSA to meet its goals of reducing truck crashes,
including whether the information is useful to this goal; the accuracy
of the estimate of the burden of the information collection; ways to
enhance the quality, utility and clarity of the information collected;
and ways to minimize the burden of the collection of information on
respondents, including the use of automated collection techniques or
other forms on information technology.
National Environmental Policy Act
FMCSA has performed an Environmental Assessment that is available
for review in the public docket on the DMS Web site, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov.
Based on the assessment, FMCSA has determined that this
SNPRM rule does not have any significant negative impacts to the
environment and may result in a net benefit from increased protection
and monitoring of hazardous materials shipments. Therefore, we find
that there are no significant environmental impacts associated with
this SNPRM. The agency solicits comments on this issue.
[[Page 49751]]
Executive Order 12988 (Civil Justice Reform)
This action would meet applicable standards in sections 3(a) and
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize
litigation, eliminate ambiguity, and reduce burden.
Executive Order 12612 (Federalism)
This proposed action has been analyzed in accordance with the
principles and criteria contained in Executive Order 13132 dated August
4, 1999, as discussed under ``State permits,'' above, where the
applicable law and the concerns previously expressed by State officials
are set forth.
Federal hazardous material transportation law allows States,
political subdivisions, and Indian tribes to continue their permit
requirements after the implementation of a Federal safety permit
program. To the extent that a State permit program is equivalent to the
Federal requirements, no preemption issues would arise. To the extent
that there are differences between Federal and non-Federal
requirements, the preemption provisions in 49 U.S.C. 5125 will continue
to apply to non-Federal permit requirements, just as those criteria
have applied in the past.
For these reasons, FMCSA believes that nothing in this proposed
rule, if adopted, will directly preempt any State law or regulation or
have a substantial direct effect or sufficient federalism implications
that would limit the policymaking discretion of the States. FMCSA
invites States and other interested parties to comment on whether they
believe any State permit requirement would be affected by the adoption
of this proposed rule.
Executive Order 13045 (Protection of Children)
We have analyzed this action under Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks'' (April 23, 1997, 62 FR 1985). This proposed rule is not an
economically significant rule because the FMCSA has determined that the
proposed rule, if adopted, will not present an environmental risk to
health or safety that may disproportionately affect children.
Executive Order 12630 (Taking of Private Property)
This proposed 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
Property Rights.
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 apply to this program.
Executive Order 13166 (Limited English Proficiency)
Executive Order 13166, ``Improving Access to Services for Persons
With Limited English Proficiency'' (LEP), requires each Federal agency
to examine the services it provides and develop reasonable measures to
ensure that persons seeking government services but limited in their
English proficiency can meaningfully access these services consistent
with, and without unduly burdening, the fundamental mission of the
agency.
Its purpose is to clarify for Federal-fund recipients the steps
those recipients can take to avoid administering programs in a way that
results in discrimination on the basis of national origin. Thus, we
believe that this proposed action complies with the principles
enunciated in the Executive Order.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety, Reporting and recordkeeping
requirements; Safety fitness procedures.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 397
Administrative practice and procedure, Highway safety,
Intergovernmental relations, Motor carriers, Parking, Radioactive
materials, Reporting and recordkeeping requirements, Tires.
In consideration of the foregoing, the Federal Motor Carrier Safety
Administration proposes to amend 49 CFR chapter III as set forth below:
PART 385--SAFETY FITNESS PROCEDURES [AMENDED]
1. Revise the authority citation for part 385 to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(c), 5109, 5113,
13901-13905, 31136, 31144, 31148, and 31502; Sec. 350 of Pub. L.
107-87; and 49 CFR 1.73.
2. Amend Sec. 385.1 by redesignating paragraph (c) as paragraph
(d) and by adding a new paragraph (c) to read as follows:
Sec. 385.1 Purpose and scope.
* * * * *
(c) This part establishes the safety permit program for a motor
carrier to transport the types and quantities of hazardous materials
listed in Sec. 385.403 of this part.
* * * * *
3. Add a new subpart E to this part 385 to read as follows:
Subpart E--Hazardous Materials Safety Permits
Sec.
385.401 What are the definitions of terms used in this subpart?
385.403 Who must hold a safety permit?
385.405 How does a motor carrier apply for a safety permit?
385.407 What conditions must a motor carrier satisfy for FMCSA to
issue a safety permit?
385.409 When may a temporary safety permit be issued to a motor
carrier?
385.411 Must a motor carrier obtain a safety permit if it has a
State permit?
385.413 What happens if a motor carrier receives a proposed safety
rating that is less than satisfactory?
385.415 What operational requirements apply to the transportation of
a hazardous material for which a permit is required?
385.417 Is a motor carrier's safety permit number available to
others?
385.419 How long is a safety permit effective?
385.421 Under what circumstances will a safety permit be subject to
revocation or suspension by the FMCSA?
385.423 Does a motor carrier have a right to an administrative
review of a denial, suspension, or revocation of a safety permit?
Subpart E--Hazardous Materials Safety Permits
Sec. 385.401 What are the definitions of terms used in this subpart?
(a) The definitions in parts 390 and 385 of this subchapter apply
to this subpart, except where otherwise specifically noted.
(b) As used in this part,
Hazardous material has the same meaning as under Sec. 171.8 of
this title, a substance or material that the Secretary of
Transportation has determined as capable of posing an unreasonable risk
to health, safety, and property when transported in commerce, and has
designated as hazardous under section 5103 of Federal hazardous
materials
[[Page 49752]]
transportation law (439 U.S.C. 5103). The term includes hazardous
substances, hazardous wastes, marine pollutants, elevated temperature
materials, materials designated as hazardous in the Hazardous Materials
Table (see 49 CFR 172.101), and materials that meet the defining
criteria for hazard classes and divisions in part 173 of subchapter C
of this chapter.
Hazmat employee has the same meaning as under Sec. 171.8 of this
title, a person who is employed by a hazmat employer as defined under
Sec. 171.8 of this title, and who in the course of employment directly
affects hazardous materials transportation safety. This term includes
an owner-operator of a motor vehicle which transports hazardous
materials in commerce. This term includes an individual, including a
self-employed individual, employed by a hazmat employer who, during the
course of employment:
(1) Loads, unloads, or handles hazardous materials;
(2) Manufactures, tests, reconditions, repairs, modifies, marks, or
otherwise represents containers, drums, or packaging as qualified for
use in the transportation of hazardous materials;
(3) Prepares hazardous materials for transportation;
(4) Is responsible for safety of transporting hazardous materials;
or
(5) Operates a vehicle used to transport hazardous materials.
Liquefied natural gas (LNG) means a Division 2.1 liquefied natural
gas material that is transported in a liquid state with a methane
content of 85% or more.
Safety permit means a document issued by FMCSA that contains a
permit number and confers authority to transport in commerce the
hazardous materials listed in Sec. 385.403(a) of this subpart.
Shipment means the offering or loading of hazardous material at one
loading facility using one transport vehicle, or the transport of that
transport vehicle.
Sec. 385.403 Who must hold a safety permit?
After the date following January 1, 2005 that a motor carrier is
required to file a Motor Carrier Identification Report (Form MCS-150)
according to the schedule set forth in Sec. 390.19(a) of this
subchapter, the motor carrier may not transport in interstate or
intrastate commerce any of the following hazardous materials, in the
quantity indicated for each, unless the motor carrier holds a safety
permit:
(a) A highway route-controlled quantity of a Class 7 (radioactive)
material, as defined in Sec. 173.403 of this title;
(b) More than 25 kg (55 pounds) of a Division 1.1, 1.2, or 1.3
(explosive) material;
(c) More than one liter (1.08 quarts) per package of a ``material
poisonous by inhalation,'' as defined in Sec. 171.8 of this title,
that meets the criteria for ``hazard zone A,'' as specified in
Sec. Sec. 173.116(a) or 173.133(a) of this title; or
(d) A shipment of liquefied natural gas in a packaging having a
capacity equal to or greater than 13,248 L (3,500 gallons).
Sec. 385.405 How does a motor carrier apply for a safety permit?
(a) Application form(s). To apply for a new safety permit or
renewal of the safety permit, a motor carrier must complete and submit
Form MCS-150B, HM Permit Application. If the motor carrier does not
have a current U.S. DOT identification number, it must also submit Form
MCS-150, Motor Carrier Identification Report (see Sec. 390.19 of this
subchapter). A new entrant must also submit Form MCS-150A, Safety
Certification for Application for U.S. DOT Number (see subpart D of
this part).
(b) Where to get forms and instructions. The forms listed in
paragraph (a) of this section and instructions for completing them, may
be obtained on the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fmcsa.dot.gov or by
contacting FMCSA at Federal Motor Carrier Safety Administration, MC-
RIS, Room 8214, 400 7th St. SW., Washington, DC 20590, Telephone: 1-
800-802-5668.
(c) Signature and certification. An official of the motor carrier
must sign each of these forms and certify that the information is
correct.
(d) Updating information on Form MCS-150B. A motor carrier that
holds a safety permit must report to the FMCSA in writing any change in
the information on its Form MCS-150B, within 30 days of the change,
using the contact information in paragraph (b) of this section.
Sec. 385.407 What conditions must a motor carrier satisfy for FMCSA
to issue a safety permit?
(a) Satisfactory safety rating. The motor carrier must have a
``satisfactory'' safety rating assigned by either FMCSA, pursuant to
the Safety Fitness Procedures of part 385 of this subchapter, 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 part 385 of this
subchapter.
(b) Satisfactory security program. The motor carrier must establish
that it has a satisfactory security program, including:
(1) A security plan meeting the requirements of part 172, subpart I
of this title. The security plan must address how the carrier will
ensure the security of the written route plan required by this part;
(2) A communications system installed on each motor vehicle used to
transport a hazardous material listed in Sec. 385.403(a) of this
subpart that enables the vehicle operator to immediately contact the
motor carrier during the course of transportation of the hazardous
material, and each operator must be trained in the use of the
communications system; and
(3) Hazmat employees who have all successfully completed the
security training required in Sec. 172.704(a)(4) of this title.
(c) Registration with RSPA. The motor carrier must be registered
with RSPA in accordance with subpart G of part 107 of this title.
Sec. 385.409 When may a temporary safety permit be issued to a motor
carrier?
(a) Temporary safety permit. If a motor carrier does not have a
safety fitness rating, FMCSA may issue a temporary safety permit. To
obtain a temporary safety permit a motor carrier must certify on Form
MCS-150B that it is operating in full compliance with the HMRs, the
FMCSRs, or comparable State regulations, and the minimum financial
responsibility requirements in part 387 of this subchapter or State
regulations, whichever is applicable.
(b) FMCSA will not issue a temporary safety permit to a motor
carrier that meets any of the following conditions. The motor carrier:
(1) Does not certify that it has a satisfactory security program as
required in Sec. 385.407(b) of this subpart;
(2) Has a crash rate in the top 30% of the national average as
found in the FMCSA Motor Carrier Management Information System (MCMIS);
(3) Has a driver, vehicle, hazardous material, or total out-of-
service rate in the top 30% of the national average as found in the
FMCSA MCMIS; or
(4) Is on the FMCSA SafeStat List A, B, C, or D.
(c) A temporary safety permit shall be valid for 270 days after the
date of issuance or until the motor carrier is assigned a safety
rating, whichever occurs first.
(1) A motor carrier that receives a satisfactory safety rating will
be issued a safety permit.
(2) A motor carrier that receives a less than satisfactory safety
rating, is
[[Page 49753]]
ineligible for a safety permit and will be subject to revocation of its
temporary safety permit.
(d) If a motor carrier has not received a safety rating within the
270-day time period, the FMCSA will extend the effective date of the
temporary safety permit for an additional 60 days, provided the motor
carrier demonstrates that it is continuing to operate in full
compliance with the FMCSRs and HMRs.
Sec. 385.411 Must a motor carrier obtain a safety permit if it has a
State permit?
Yes. However, if FMCSA is able to verify that a motor carrier has a
safety permit issued by a State under a program that FMCSA has
determined is equivalent to the provisions of this subpart, FMCSA will
immediately issue a safety permit to the motor carrier upon receipt of
an application in accordance with Sec. 385.405 of this subpart,
without further inspection or investigation.
Sec. 385.413 What happens if a motor carrier receives a proposed
safety rating that is less than satisfactory?
(a) If a motor carrier does not already have a safety permit, it
will not be issued a safety permit unless and until a satisfactory
safety rating is issued to the motor carrier.
(b) If a motor carrier holds a safety permit (including a temporary
safety permit), the safety permit will be subject to revocation or
suspension (see Sec. 385.421 of this subpart).
Sec. 385.415 What operational requirements apply to the
transportation of a hazardous material for which a permit is required?
(a) Information that must be carried in the vehicle. During
transportation, the following must be maintained in each motor vehicle
that transports a hazardous material listed in Sec. 385.403(a) of this
subpart and, upon request, made available to an authorized official of
a Federal, State, or local government agency:
(1) A copy of the safety permit or another document showing the
permit number;
(2) A written route plan that meets the requirements of Sec.
397.101 of this subchapter (for Class 7 (radioactive) materials) or
Sec. 397.67 of this subchapter (for non-radioactive materials); and
(3) The telephone number of an employee of the motor carrier who
has a copy of the route plan required in paragraph (a)(2) of this
section and is able to determine whether the motor vehicle is on the
route specified in that route plan. This phone number must be monitored
by the motor carrier at all times the vehicle is in transit.
(b) Inspection of vehicle transporting Class 7 (radioactive)
materials. Before a motor carrier may transport a highway route
controlled quantity of a Class 7 (radioactive) material, the motor
carrier must have a pre-trip inspection performed on each motor vehicle
to be used to transport a highway route controlled quantity of a Class
7 (radioactive) material, in accordance with the following
requirements:
(1) The inspection must be performed by a inspector who--
(i) Is employed by or under contract to a Federal, State, or local
government, and
(ii) Has completed a commercial vehicle inspection-training program
of at least 104 hours in duration, including 24 hours on the inspection
of vehicles transporting HRCQ of Class 7 (radioactive) materials and
conducting radiological surveys.
(2) The inspection must determine whether the motor carrier,
driver(s) and the motor vehicle are in compliance with requirements
governing:
(i) Commercial driver's licenses, in part 383 of this subchapter;
(ii) Qualifications and hours of service of drivers, in parts 391
and 395 of this subchapter, or compatible State requirements that are
applicable;
(iii) The mechanical condition of the vehicle, in parts 393 and 396
of this subchapter, or compatible State requirements that are
applicable;
(iv) The requirements in the Hazardous Materials Regulations (49
CFR parts 171 through 180) and compatible State requirements applicable
to the acceptance and transportation of a highway route controlled
quantity of a Class 7 (radioactive) material, including the limits for
external radiation, heat, and contamination specified in Sec. Sec.
173.441, 173.442, and 173.443 of this title;
(v) Registration and payment of the registration fee, in subpart G
of part 107 of this title; and
(vi) Requirements for motor carriers and drivers, in subpart D of
part 397 of this title.
(3) If any violation of the requirements in paragraph (b)(2) of
this section is discovered, the vehicle may not begin transportation
until the violation has been corrected. If any violation of the
requirements in paragraph (b)(2)(iii) of this section is discovered,
the vehicle must be placed ``out of service'' and may not be moved
until completion of all repairs necessary for compliance with the
requirements in paragraph (b)(2)(iii) of this section.
(4) If the inspector determines that the driver(s) and vehicle are
in compliance with all the requirements set forth in paragraph (b)(2)
of this section, the inspector shall affix to the vehicle a decal
indicating the nature of the inspection and containing the date of the
inspection. This decal must be removed upon delivery of the shipment to
the consignee.
(c) Additional requirements. (1) The operator of a motor vehicle
used to transport a hazardous material listed in Sec. 385.403(a) of
this subpart must:
(i) Follow the written route plan required by paragraph (a)(2) of
this section, unless an alternate route is required by a law
enforcement official or emergency conditions (in which case the
operator must amend the written route plan to show the deviation); and
(ii) At least once each two hours during transportation of a
hazardous material for which a safety permit is required, and any time
there is a deviation from the written route plan required by paragraph
(b) of this section, communicate with the motor carrier by means of the
communications system required by Sec. 385.407(b)(2) of this subpart.
(2) The motor carrier must contact law enforcement authorities at
any time more than three hours have elapsed since the last
communication from the operator of a motor vehicle used to transport a
hazardous material listed in Sec. 385.403(a) of this subpart. The
motor carrier must maintain a record for 6 months after the initial
acceptance of a shipment of hazardous material for which a safety
permit is required, containing the name of the operator, identification
of the vehicle, hazardous material(s) being transported, the date and
time of each communication, and each period of more than two hours
without a communication with the operator including a statement of the
facts or conditions that prevented communication for more than two
hours.
Sec. 385.417 Is a motor carrier's safety permit number available to
others?
Upon request, a motor carrier must provide the number of its safety
permit to a person who offers a hazardous material listed in Sec.
385.403(a) of this subpart for transportation in commerce. A motor
carrier's permit number will also be available to the public on the
FMCSA Safety and Fitness Electronic Records System at http://www.safer.fmcsa.dot.gov
.
Sec. 385.419 How long is a safety permit effective?
Unless suspended or revoked, a safety permit (other than a
temporary safety permit) is effective for two years, except that:
[[Page 49754]]
(a) a safety permit will be subject to revocation if a motor
carrier fails to submit a renewal application (Form MCS-150B) in
accordance with the schedule set forth for filing Form MCS-150 in Sec.
390.19(a)(2) and (3) of this subchapter; and
(b) a safety permit will remain in effect pending FMCSA's
processing of an application for renewal if a motor carrier submits the
required application (Form MS-150B) in accordance with the schedule set
forth in Sec. 390.19(a)(2) and (3) of this subchapter.
Sec. 385.421 Under what circumstances will a safety permit be subject
to revocation or suspension by the FMCSA?
(a) Grounds. A safety permit will be subject to revocation or
suspension by the FMCSA for the following reasons:
(1) A motor carrier fails to submit a renewal application (Form
MCS-150B) in accordance with the schedule set forth in Sec.
390.19(a)(2) and (3) of this subchapter;
(2) A motor carrier provides any false or misleading information on
its application (Form MCS-150B), Form MCS-150A (when required), or an
update of information on its Form MCS-150B (see Sec. 385.405(e) of
this subpart);
(3) A motor carrier is issued a final safety rating that is less
than satisfactory;
(4) A motor carrier fails to maintain a satisfactory security plan
as set forth in Sec. 385.407(b) of this subpart;
(5) A motor carrier fails to comply with applicable requirements in
the FMCSRs, the HMRs, or compatible State requirements governing the
transportation of hazardous materials, in a manner that shows that the
motor carrier is not fit to transport or offer for transportation the
hazardous materials listed in Sec. 385.403(a) of this subpart;
(6) A motor carrier fails to comply with an out-of-service order;
(7) A motor carrier fails to comply with any other order issued
under the FMCSRs, the HMRs, or compatible State requirements governing
the transportation of hazardous materials, in a manner that shows that
the motor carrier is not fit to transport or offer for transportation
the hazardous materials listed in Sec. 385.403(a) of this subpart;
(8) A motor carrier fails to maintain the minimum financial
responsibility required by Sec. 387.9 or an applicable State
requirement;
(9) A motor carrier fails to maintain current hazardous materials
registration with the Research and Special Programs Administration; or
(10) A motor carrier loses its operating rights or has its
registration suspended in accordance with Sec. 386.83 or Sec. 386.84
of this subchapter for failure to pay a civil penalty or abide by a
payment plan.
(b) Effective date of suspension or revocation. A suspension or
revocation of a safety permit is effective:
(1) immediately when FMCSA determines that an imminent hazard
exists, when FMCSA issues a final safety rating that is less than
satisfactory, or when a motor carrier loses its operating rights or has
its registration suspended for failure to pay a civil penalty or abide
by a payment plan;
(2) 30 days after service of a written notification that FMCSA
proposes to suspend or revoke a safety permit, if the motor carrier
does not submit a written request for administrative review within that
time period; or
(3) as specified in Sec. 385.423(c) of this subpart, when the
motor carrier submits a written request for administrative review of
FMCSA's proposal to suspend or revoke a safety permit.
Sec. 385.423 Does a motor carrier have a right to an administrative
review of a denial, suspension, or revocation of a safety permit?
A motor carrier has a right to an administrative review pursuant to
the following procedures and conditions:
(a) Less than satisfactory safety rating. If a motor carrier is
issued a proposed safety rating that is less than satisfactory, it has
the right to request (1) an administrative review of a proposed safety
rating, as set forth in Sec. 385.15 of this part, and (2) a change to
a proposed safety rating based on corrective action, as set forth in
Sec. 385.17 of this part. After a motor carrier has had an opportunity
for administrative review of, or change to, a proposed safety rating,
FMCSA's issuance of a final safety rating constitutes final agency
action, and a motor carrier has no right to further administrative
review of FMCSA's denial, suspension, or revocation of a safety permit
when the motor carrier has been issued a final safety rating that is
less than satisfactory.
(b) Failure to pay civil penalty or abide by payment plan. If a
motor carrier is notified that failure to pay a civil penalty will
result in suspension or termination of its operating rights, it has the
right to an administrative review of that proposed action in a show
cause proceeding, as set forth in Sec. 386.83(b) or Sec. 386.84(b) of
this subchapter. The decision by FMCSA's Chief Safety Officer in the
show cause proceeding constitutes final agency action, and a motor
carrier has no right to further administrative review of FMCSA's
denial, suspension, or revocation of a safety permit when the motor
carrier has lost its operating rights or had its registration suspended
for failure to pay a civil penalty or abide by a payment plan.
(c) Other grounds. Under circumstances other than those set forth
in paragraphs (a) and (b) of this section, a motor carrier may submit a
written request for administrative review within 30 days after service
of a written notification that FMCSA has denied a safety permit, that
FMCSA has immediately suspended or revoked a safety permit or that
FMCSA has proposed to suspend or revoke a safety permit. The rules for
computing time limits for service and requests for extension of time in
Sec. Sec. 386.31 and 386.33 apply to the proceedings on a request for
administrative review under this section.
(1) The motor carrier must send or deliver its written request for
administrative review to FMCSA Chief Safety Officer, with a copy to
FMCSA Chief Counsel, at the following addresses:
FMCSA Chief Safety Officer, Federal Motor Carrier Safety
Administration, c/o Adjudications Counsel (Room 8302A), 400 Seventh
Street, SW., Washington, DC 20590.
FMCSA Chief Counsel, Federal Motor Carrier Safety Administration,
Office of the Chief Counsel, Room 8125, 400 Seventh Street, SW.,
Washington, DC 20590.
(2) A request for administrative review must state the specific
grounds for review and include all information, evidence, and arguments
upon which the motor carrier relies to support its request for
administrative review.
(3) Within 30 days after service of a written request for
administrative review, the Office of the Chief Counsel shall submit to
the Chief Safety Officer a written response to the request for
administrative review. The Office of the Chief Counsel must serve a
copy of its written response on the motor carrier requesting
administrative review.
(4) The Chief Safety Officer may decide a motor carrier's request
for administrative review on the written submissions, hold a hearing
personally, or refer the request to an administrative law judge for a
hearing and recommended decision. The Chief Safety Officer or
administrative law judge is authorized to specify, and must notify the
parties of, specific procedural rules to be followed in the proceeding
(which may include the procedural rules in Part 386 of this subchapter
that are considered appropriate).
[[Page 49755]]
(5) If a request for administrative review is referred to an
administrative law judge, the recommended decision of the
administrative law judge becomes the final decision of the Chief Safety
Officer 45 days after service of the recommended decision is served,
unless either the motor carrier or the Office of the Chief Counsel
submits a petition for review to the Chief Safety Officer (and serves a
copy of its petition on the other party) within 15 days after service
of the recommended decision. In response to a petition for review of a
recommended decision of an administrative law judge:
(i) The other party may submit a written reply within 15 days of
service of the petition for review.
(ii) The Chief Safety Officer may adopt, modify, or set aside the
recommended decision of an administrative law judge, and may also
remand the petition for review to the administrative law judge for
further proceedings.
(6) The Chief Safety Officer will issue a final decision on any
request for administrative review when:
(i) The request for administrative review has not been referred to
an administrative law judge;
(ii) A petition for review of a recommended decision by an
administrative law judge has not been remanded to the administrative
law judge for further proceedings; or
(iii) An administrative law judge has held further proceedings on a
petition for review and issued a supplementary recommended decision.
(7) The decision of the Chief Safety Officer (including a
recommended decision of an administrative law judge that becomes the
decision of the Chief Safety Officer under paragraph (c)(5) of this
section) constitutes final agency action, and there is no right to
further administrative reconsideration or review.
(8) Any appeal of a final agency action under this section must be
taken to an appropriate United States Court of Appeals. Unless the
Court of Appeals issues a stay pending appeal, the final agency action
shall not be suspended while the appeal is pending.
4. Appendix B to Part 385 is amended by adding to the List of Acute
and Critical Regulations under Paragraph VII the following information
in numerical order between Sec. Sec. 171.16 and 177.800:
APPENDIX B TO PART 385--EXPLANATION OF SAFETY RATING PROCESS
* * * * *
VII. List of Acute and Critical Regulations
Sec. 172.313(a) Accepting for transportation or transporting a
package containing a poisonous-by-inhalation material that is not
marked with the words ``Inhalation Hazard'' (acute).
Sec. 172.704(a)(4) Failing to provide security awareness training
(critical).
Sec. 172.704(a)(5) Failing to provide in-depth security awareness
training (critical).
Sec. 172.800(b) Offering or transporting HM without a security plan
that conforms to Subpart I requirements (acute).
Sec. 172.800(b) Failure to adhere to a required security plan
(acute).
Sec. 172.802(b) Failure to make copies of security plan available to
hazmat employees (critical).
Sec. 173.24(b)(1) Accepting for transportation or transporting a
package that has an identifiable release of a hazardous material to the
environment (acute).
Sec. 173.421(a) Accepting for transportation or transporting a Class
7 (radioactive) material described, marked, and packaged as a limited
quantity when the radiation level on the surface of the package exceeds
0.005mSv/hour (0.5 mrem/hour) (acute).
Sec. 173.431(a) Accepting for transportation or transporting in a
Type A packaging a greater quantity of Class 7 (radioactive) material
than authorized (acute).
Sec. 173.431(b) Accepting for transportation or transporting in a
Type B packaging a greater quantity of Class 7 (radioactive) material
than authorized (acute).
Sec. 173.441 Accepting for transportation or transporting a package
containing Class 7 (radioactive) material with external radiation
exceeding allowable limits (acute).
Sec. 173.442(b) Accepting for transportation or transporting a
package containing Class 7 (radioactive) material when the temperature
of the accessible external surface of the loaded package exceeds
50[deg]C (122[deg]F) in other than an exclusive use shipment, or
85[deg]C (185[deg]F) in an exclusive use shipment (acute).
Sec. 173.443 Accepting for transportation or transporting a package
containing Class 7 (radioactive) material with removable contamination
on the external surfaces of the package in excess of permissible limits
(acute).
4a. Appendix B to to Part 385 is amended by adding to the List of
Acute and Critical Regulations under Paragraph VII the following
information in numerical order after Sec. 177.800(c):
Sec. 177.801 Accepting for transportation or transporting a forbidden
material (acute).
4b. Appendix B to Part 385 is amended by adding to the List of
Acute and Critical Regulations under Paragraph VII the following
information in numberical order after Sec. 177.823(a):
Sec. 177.835(a) Loading or unloading a Class 1 (explosive) material
with the engine running (acute).
Sec. 177.835(c) Accepting for transportation or transporting Division
1.1 or 1.2 (explosive) materials in a motor vehicle or combination of
vehicles that is not permitted (acute).
Sec. 177.835(j) Transferring Division 1.1, 1.2, or 1.3 (explosive)
materials between containers or motor vehicles when not permitted
(acute).
* * * * *
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
5. The authority citation for Part 390 continues to read as
follows:
Authority: 49 U.S.C. 13301, 13902, 31131, 31133, 31502, and
31504, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); and
49 CFR 1.73.
Sec. 390.3 General applicability.
* * * * *
(g) Motor carriers that transport hazardous materials in intrastate
commerce. The rules in the following provisions of subchapter B of this
chapter apply to motor carriers that transport hazardous materials in
intrastate commerce and to the motor vehicles that transport hazardous
materials in intrastate commerce:
(1) Subparts A, C, and E of Part 385, for carriers subject to the
requirements of Sec. 385.403(a) of this subchapter.
(2) Part 386, Rules of practice for motor carrier, broker, freight
forwarder, and hazardous materials proceedings.
(3) Part 387, Minimum Levels of Financial Responsibility for Motor
Carriers, to the extent provided in Sec. 387.3 of this subchapter.
(4) Section 390.19, Motor carrier identification report, and Sec.
390.21, Marking of CMVs, for carriers subject to the requirements of
Sec. 385.403(a) of this subchapter. Intrastate motor carriers
operating prior to January 1, 2005, are excepted from Sec.
390.19(a)(1).
PART 397--TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND
PARKING RULES [AMENDED]
7. The authority citation for Part 397 continues to read as
follows:
Authority: 49 U.S.C. 322, 5112; 49 CFR 1.73. Subpart A also
issued under 49 U.S.C. 5103, 31136, 31502, and 49 CFR 1.53. Subparts
C, D, and E also issued under 49 U.S.C. 5112, 5125.
8. Amend Sec. 397.67 to revise paragraph (d) to read as follows:
[[Page 49756]]
Sec. 397.67 Motor carrier responsibility for routing.
* * * * *
(d) Before a motor carrier requires or permits the operation of a
motor vehicle containing any of the following hazardous materials, the
carrier or its agent shall prepare and furnish to the vehicle operator
a written route plan that complies with this section:
(1) A Division 1.1, 1.2, or 1.3 (explosive) material (see Sec.
173.50 of this title);
(2) More than one liter (1.08 quarts) per package of a ``material
poisonous by inhalation,'' as defined in Sec. 171.8 of this title,
that meets the criteria for ``hazard zone A,'' as specified in
Sec. Sec. 173.116(a) or 173.133(a) of this title); or
(3) A shipment of liquefied natural gas in a bulk packaging (see
Sec. 171.8 of this title) having a capacity equal to or greater than
13,248 L (3,500 gallons) for liquids or gases.
Issued on: August 11, 2003.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 03-20887 Filed 8-18-03; 8:45 am]