[Federal Register Volume 61, Number 237 (Monday, December 9, 1996)]
[Proposed Rules]
[Pages 64849-64851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30218]
[[Page 64849]]
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DEPARTMENT OF TRANSPORTATION
Bureau of Transportation Statistics
49 CFR Ch. XI
Negotiated Rulemaking Committee to Revise the Motor Carrier
Financial and Operating Data Collection Program
AGENCY: Bureau of Transportation Statistics (BTS), DOT.
ACTION: Proposed establishment of negotiated rulemaking advisory
committee.
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SUMMARY: The Bureau of Transportation Statistics (BTS) proposes to
establish a negotiated rulemaking advisory committee (the Committee)
under the Federal Advisory Committee Act and the Negotiated Rulemaking
Act to consider the relevant issues and attempt to reach a consensus in
developing regulations governing the collection of financial and
operating data from motor carriers of property. This effort also is in
response to the President's Regulatory Reinvention Initiative, which
specifically directed agencies to increase use of regulatory
negotiation in rulemaking proceedings. The Committee would be composed
of people who represent the interests that would be substantially
affected by the rule. BTS invites interested parties to comment on the
proposal to establish the Committee, on the proposed membership of the
Committee, and on the proposed issues for consideration by the
Committee. Persons are also invited to submit applications or
nominations for membership on the Committee.
DATES: Interested parties may file comments and nominations for
committee membership on or before January 8, 1997.
ADDRESSES: When sending comments and/or nominations, send the original
plus three copies. Mail to Docket Clerk, Docket No. BTS-96-1979,
Department of Transportation, 400 Seventh Street, SW., Room PL-
401,Washington, D.C. 20590. Commenters desiring notification of receipt
of comments must include a stamped, self-addressed postcard. The Docket
Clerk will date stamp the postcard and mail it back to the commenter.
FOR FURTHER INFORMATION CONTACT: David Mednick, Bureau of
Transportation Statistics, K-2, 400 Seventh Street, SW., Washington,
D.C. 20590; by phone at (202) 366-8871; by e-mail at
david.mednick@bts.gov; or by Fax at (202) 366-3640.
SUPPLEMENTARY INFORMATION:
Background
The Secretary of Transportation has authority to establish
regulations for the collection of certain data from motor carriers of
property and others. Section 103 of the ICC Termination Act of 1995
(the Act), Pub. L. 104-88, 109 Stat. 803 (1995) (to be codified at 49
U.S.C. 14123). This authority is delegated to the Director of the
Bureau of Transportation Statistics.
For many years, the Interstate Commerce Commission (ICC)
administered a motor carrier financial data collection program. 49
U.S.C. 11145 (amended by the Act). Under this statute and its
implementing regulations, 49 CFR part 1249, the ICC collected data on
an annual and quarterly basis from freight and passenger motor
carriers. The program collected data on many aspects of the motor
carrier industry including financial, employee, and operating
statistics.
Before 1980, the ICC required detailed financial reports from all
classes of motor carriers with annual revenues over $500,000. The
reporting requirements reflected the ICC's close economic regulation of
the industry. In the years following trucking deregulation, the ICC
substantially reduced reporting requirements. It created classes of
reporting carriers based on revenues, raised the revenue levels for the
various carrier classes, and reduced the information required for each
class.
The quality of the data in the latter years of ICC administration
declined considerably, due to constraints on resources needed for
support and enforcement. Regulatory use of the data by the Federal
government has dwindled and is today, as far as BTS knows, almost
nonexistent. BTS is uncertain as to the extent of use for statistical
purposes or the value of the data as collected. Aggregate data have
been and continue to be published. Unless otherwise prohibited by law,
individual carrier reports are made available to the public.
For motor carriers of property, the current regulations create
three classes of carriers based on revenue. Class I carriers are those
with annual operating revenues of $10 million or greater and they file
annual report form M1 and quarterly report form QFR. Class II carriers
have annual operating revenues of between $3 and 10 million and file
annual report form M2. Class III carriers have annual operating
revenues of less than $3 million and are not required to file any
financial reports. The term ``motor carriers'' used here includes only
common and contract carriers--those providing motor vehicle
transportation for compensation. Private motor carriers--a retail
store's own fleet, for example--are excluded from the program.
The ICC Termination Act of 1995, which went into effect January 1,
1996, abolished the ICC and transferred some former ICC functions to
the Department of Transportation (DOT). The Secretary of Transportation
delegated responsibility and authority for the motor carrier financial
data reporting program to DOT's Bureau of Transportation Statistics
(BTS). Since Congress preserved the data collection provisions, albeit
with some differences, the regulations remain in effect until
``modified, terminated, superseded, set aside, or revoked'' by BTS.
That is, the program remains current and DOT will continue collecting
motor carrier financial data as was done when the ICC administered the
program.
Meanwhile, DOT is to redefine the reporting requirements within the
bounds of the Act. Revision is necessary because the Act changed the
laws governing data collection slightly. Similar to the old
legislation, the Act requires DOT to collect certain data from motor
carriers of property and motor carriers of passengers.
The Secretary shall require Class I and Class II motor carriers
to file with the Secretary annual financial and safety reports, the
form and substance of which shall be prescribed by the Secretary;
except that, at a minimum, such reports shall include balance sheets
and income statements.
However, the earlier statute did not explicitly charge ICC to
collect information relevant to safety. The Act also allows DOT to
collect certain other data as needed.
The Secretary may require motor carriers, freight forwarders,
brokers, lessors, and associations, or classes of them as the
Secretary may prescribe, to file quarterly, periodic, or special
reports with the Secretary and to respond to surveys concerning
their operations.
In designing the reporting program, DOT must consider, pursuant to
the Act: (1) Safety needs; (2) the need to preserve confidential
business information and trade secrets and prevent competitive harm;
(3) private sector, academic, and public use of information in the
reports; and (4) the public interest. Congress has also explicitly
called on DOT to ``streamline and simplify'' reporting requirements to
the maximum extent practicable. BTS notes that the data needs of the
public and private sectors have changed, and the technology to
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collect, process, and disseminate data is much improved. Further, as
part of the Regulatory Reinvention Initiative, the President asked that
agencies reduce by half the frequency of reports that the public is
required to provide.
Unlike the previous legislation, the Act authorizes two types of
exemptions from the reporting requirements. Each exemption is based on
certain criteria and is granted for a three-year period. The first is
an exemption from filing report forms. The requestor ``must
demonstrate, at a minimum, that an exemption is required to avoid
competitive harm and preserve confidential business information that is
not otherwise publicly available.'' The second is an exemption from
public release of data reported by the carrier. Similar to the other
exemption, the requestor must demonstrate that ``the exemption
requested is necessary to avoid competitive harm and to avoid the
disclosure of information that qualifies as a trade secret or
privileged or confidential information under section 552(b)(4) of title
5.'' Further, the requestor must not be a publicly held corporation and
must not be subject to financial reporting requirements of the
Securities and Exchange Commission.
As it redesigns the data collection program under the Act, BTS will
seek to determine the government and private needs for motor carrier
financial and operating data and how to balance these needs against the
burden on respondents. This rulemaking will form the basis for
addressing these questions, as well as others that may be identified as
this process continues. When complete, the Bureau hopes to resolve: (1)
Which motor carriers should report; (2) what data items should be
collected; (3) how often data should be collected; and (4) whether BTS
should release carrier-specific data in addition to aggregate data and,
if so, what entities should have access.
Pursuant to the Negotiated Rulemaking Act, 5 U.S.C. 561-570, the
agency is considering forming a negotiated rulemaking committee. The
agency believes that this approach is most likely to lead to a program
that provides the government with the data it needs for industry
oversight while minimizing the impact on respondents. Unlike
traditional, informal notice and comment rulemaking, this process would
allow for the open exchange of ideas and information among and between
parties with an interest in the outcome of this issue. The agency
believes that in adopting this approach, the process would lead to
creative, innovative approaches to resolving issues that might not
emerge through the individual efforts of commenters to a docket. The
process would still result in the promulgation of a notice of proposed
rulemaking. This would provide an opportunity for comment by other
interested parties and the general public, but the initial proposal
published for comment would reflect the exchange of ideas and differing
proposals that occur in negotiations. One result of the negotiations
would be better informed providers and users of motor carrier data with
a fuller understanding of the costs and benefits of the various methods
for collecting and utilizing motor carrier financial and operating
information.
Negotiated Rulemaking Process--Conveners
As provided for in 5 U.S.C. 563(b), a convener assists the agency
in identifying the persons or interests that would be significantly
affected by the proposed rule. The convener conducts discussions with
representatives of such interests to identify the issues of concern to
them and to ascertain the feasibility of establishing a negotiated
rulemaking committee.
BTS retained the services of an attorney working for the United
States Coast Guard to act as a convener and provide advice on the
feasibility of using a negotiated rulemaking process for this rule. The
convener met with BTS officials to review background information on the
issues, including the history of the program, potential interested
parties, and agency objectives.
The convener attempted to develop the range of interests that would
be affected by the rule and identify individuals who would be able to
represent or articulate those interests. The convener then sought to
interview those individuals to determine their views on the issues
involved and whether they would be interested in participating in the
negotiated rulemaking. Each party was also asked if there were other
individuals or groups which should be contacted and these additional
parties were interviewed. Based upon these interviews, the convener
submitted a convening report in October 1996 to BTS recommending that
the agency proceed with the negotiated rulemaking process.
Determination of Need for a Negotiated Rulemaking Committee
The purpose of a negotiated rulemaking committee is to develop
consensus on a proposed rule. ``Consensus'' means the unanimous
concurrence among the interests represented on the negotiated
rulemaking committee unless the committee explicitly adopts some other
definition. This requirement also means that the agency itself
participates in the negotiations in a manner similar to that of any
other party.
Before establishing such a negotiated rulemaking committee, the
Negotiated Rulemaking Act (5 U.S.C. 563(a)) directs the head of an
agency to consider whether:
1. There is a need for the rule;
2. There are a limited number of identifiable interests that will
be significantly affected by the rule;
3. There is a reasonable likelihood that a committee can be
convened with a balanced representation of persons who can adequately
represent those interests and are willing to negotiate in good faith to
reach a consensus on a proposed rule;
4. There is a reasonable likelihood that a committee will reach
consensus on the proposed rule within a fixed period of time;
5. The negotiated rulemaking will not unreasonably delay the
issuance of the notice of proposed rulemaking and the final rule;
6. The agency has adequate resources and is willing to commit such
resources, including technical assistance, to the committee; and
7. The agency, to the maximum extent possible, consistent with its
statutory authority and legal obligations, will use the consensus of
the committee as the basis for the rule proposed by the agency for
notice and comment.
BTS believes that all of the requisite negotiated rulemaking
factors are satisfied with regard to redesigning the motor carrier data
collection program and that the negotiating process could provide
significant advantages over conventional informal rulemaking. This
determination is based on the convener's report. There is broad
consensus among the parties contacted by the convener that the data
collection program in place today does not serve current users' needs,
warranting changes in the types of data collected as well as the
universe of reporting carriers. The potentially affected interests are
limited in number; there are clearly fewer than 25 distinct interests
that would be affected by the rule. A balanced committee representing
the various interests at stake in this matter can be empaneled. The
parties contacted by the convener have expressed their interests in
discussing the issues and believe that there is a strong likelihood of
reaching consensus on the issues within a reasonable period of time.
BTS believes that these negotiations would not delay, but
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expedite the rulemaking process since the negotiations would enable the
agency to benefit from the committee members' practical, first-hand
insights and knowledge into what data are needed for what purposes, and
how these data can be most efficiently obtained. The information BTS
hopes to gain would be valuable to rulemaking even if full consensus is
not reached. Further, BTS has a much greater chance of obtaining this
information and resolving the controversies through negotiated
rulemaking than through informal notice and comment rulemaking. The
agency is committed to facilitating the negotiated rulemaking process
and will devote the necessary resources, including technical
assistance, to the Committee. The member or members of the Committee
representing the agency shall participate in the deliberations and
activities of the Committee with the same rights and responsibilities
as other members of the Committee, and shall be authorized to fully
represent the agency in discussions and negotiations of the Committee.
The agency, to the maximum extent possible, consistent with its
statutory authority and legal obligations, will use the consensus of
the Committee as the basis for the rule proposed by the agency for
notice and comment.
Therefore, based on this analysis of the seven factors mentioned
above, the agency has concluded that the use of the negotiated
rulemaking procedure in this case is in the public interest.
Potential Topics for the Negotiated Rulemaking Process
Based on the interviews conducted with potential committee members
and the report provided by the convener, BTS proposes consideration of
the following issues in the negotiated rulemaking process.
1. What financial and operating information about the motor carrier
industry and individual motor carriers is needed by the Federal
government, the private sector, academia, and the general public for
statistical purposes?
2. What financial and operating information about the motor carrier
industry and individual motor carriers is needed by the Federal
government for the purpose of promoting safety?
3. What other sources exist to provide needed data?
4. What approach to data collection provides the optimum balance
between minimizing the reporting burden to motor carriers on one hand
and meeting governmental and other data needs on the other?
4. What approach to data use provides the optimum balance between
preventing competitive harm and preserving confidential business
information and trade secrets on one hand and meeting governmental and
other data needs on the other?
5. What categories of reporting and non-reporting motor carriers
should be created? Should all carriers within a category report or just
a sample? What data items should each category report? How often should
the data items be reported?
6. In addition to aggregate data, what carrier-specific data should
be made available? What entities, inside and outside the Federal
government, should have access to carrier-specific data?
Potential Participants Who Were Interviewed by the Convener
The following entities were identified as interested parties that
should be included in the negotiated rulemaking process either directly
as members of the Committee or as a part of a broader caucus of similar
or related interests:
Government Agencies
U.S. Department of Transportation
Carriers
American Trucking Associations
Drivers
International Brotherhood of Teamsters
Insurance
American Insurance Association
Central Analysis Bureau, Inc.
Industry Analysts
Transportation Technical Services
University of Michigan Program on the Trucking Service Industry
Proposed Agenda and Schedule
BTS anticipates that the negotiated rulemaking committee will hold
six two-day meetings, approximately once a month. The first committee
meeting will focus on such matters as: determining if there are
additional interests that should be represented on the Committee;
identifying issues to be considered; and setting ground rules, a
schedule, and an agenda for future Committee meetings.
Administrative Support
BTS will select and fund a facilitator, who is neutral, has the
relevant skills, and is acceptable to all participants. BTS will also
supply logistical, technical, and administrative support to the
Committee. The meetings will be held in Washington, D.C., where a
majority of the prospective Committee members are likely to be located.
In general, Committee members will be responsible for their own
expenses, but BTS will consider requests for reimbursement in
accordance with 5 U.S.C. 568(c).
Applications for Membership on Committee
BTS is soliciting comments on this proposal to establish a
negotiated rulemaking advisory committee, on the proposed membership of
the Committee, and on the proposed issues for consideration by the
Committee. Persons may apply or nominate another person for membership
on the Committee in accordance with the following procedures:
Persons who will be significantly affected by the proposed rule and
who believe that their interests will not be adequately represented by
any person on the previously discussed list of potential participants
may apply for, or nominate another person for, membership on the
negotiated rulemaking committee. Each application or nomination shall
include:
1. the name of the applicant or nominee and a description of the
interests such person shall represent;
2. evidence that the applicant or nominee is authorized to
represent parties related to the interests the person proposes to
represent;
3. a written commitment that the applicant or nominee shall
actively participate in good faith in the development of the rule under
consideration; and
4. the reasons that the persons specified in this notice do not
adequately represent the interests of the person submitting the
application or nomination.
As a general rule, the Federal Advisory Committee Act provides that
no advisory committee may meet or take any action until an approved
charter has been filed with the appropriate House and Senate committees
with jurisdiction over the agency using the committee. Only upon the
Secretary of Transportation's approval of the charter and the list of
organizations or interests to be represented on the Committee and the
filing of the charter will BTS form the Committee and begin
negotiations.
After review of the comments received in response to this notice,
BTS will issue a final notice announcing formation of the Committee,
its members, the issues for consideration, and the date of the first
Committee meeting.
Authority: 5 U.S.C. 561-570.
Issued in Washington, DC, on November 20, 1996.
Robert A. Knisely,
Deputy Director, Bureau of Transportation Statistics.
[FR Doc. 96-30218 Filed 12-6-96; 8:45 am]
BILLING CODE 4910-FE-P
