[Federal Register Volume 59, Number 23 (Thursday, February 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2118]
[[Page Unknown]]
[Federal Register: February 3, 1994]
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Part IV
Department of Transportation
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Federal Highway Administration
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49 CFR Part 350
Motor Carrier Safety Assistance Program; Amendment to Distribution
Formula; Interim Final Rule
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 350
[FHWA Docket No. MC-94-4]
RIN 2125-AD30
Motor Carrier Safety Assistance Program; Amendment to
Distribution Formula
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Interim final rule; request for comments.
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SUMMARY: This document modifies the Motor Carrier Safety Assistance
Program (MCSAP) distribution formula to allow States with incompatible
intrastate regulations limited participation in only the basic grant
program beyond October 1, 1994. It does not change the distribution
formula pertaining to those States that have achieved compatibility
with respect to both interstate and intrastate transportation. The
revised formula is necessary to provide continued funding for States
that have not achieved full compatibility in the enforcement of safety
regulations applicable to intrastate transportation. Such States will
be qualified through formula allocation, rather than suffering absolute
loss of eligibility after September 30, 1994.
DATES: This interim final rule is effective March 7, 1994. Comments on
this interim final rule must be received on or before April 4, 1994.
ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-94-4,
room 4232, HCC-10, Office of the Chief Counsel, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590. All
comments received will be available for examination at the above
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,
except legal Federal holidays. Those desiring notification of receipt
of comments must include a self-addressed, stamped postcard.
FOR FURTHER INFORMATION CONTACT: Ms. Linda Taylor, Office of Motor
Carrier Safety Field Operations (202) 366-6308, or Ms. Grace Reidy,
Office of the Chief Counsel, (202) 366-0834, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590. Office
hours are from 7:45 a.m. to 4:15 p.m., e.t. Monday through Friday,
except legal Federal holidays.
SUPPLEMENTARY INFORMATION: The Motor Carrier Safety Assistance Program
(MCSAP) was first authorized in the Surface Transportation Assistance
Act of 1982 (sec. 404, Pub. L. 97-424, 96 Stat. 2097, 2156) and most
recently reauthorized by the Intermodal Surface Transportation
Efficiency Act of 1991 (ISTEA) (sec. 4002, Pub. L. 102-240, 105 Stat.
1914, 2140) which was signed into law on December 19, 1991. The
original authorization contained certain conditions States had to meet
to be eligible for funding. One such condition required each State to
adopt and enforce commercial motor vehicle safety regulations which are
compatible with the Federal requirements. Title 49, Code of Federal
Regulations (CFR), part 350 was amended by a final rule published in
the Federal Register on September 8, 1992 (57 FR 40946), to reflect the
mandates of the ISTEA. The amended rule, among other things, defined
compatibility, with respect to interstate applicability, to mean
identical with the Federal Motor Carrier Safety Regulations (FMCSR)
and, with respect to intrastate applicability, to mean within the
Tolerance Guidelines. The rule also required interstate compatibility
to be achieved not later than October 1, 1993. The FHWA's Tolerance
Guidelines, which set the compatibility requirements for intrastate
regulations, were included in the new regulation as appendix C to part
350 and future funding under MCSAP was conditioned on achieving
intrastate compatibility by October 1, 1994.
With this rulemaking, the FHWA is modifying part 350 to allow
partial funding of States notwithstanding intrastate incompatibility.
States that have not achieved full intrastate compatibility will
receive 50 percent of their basic formula allocation. The formula funds
which are withheld from those States which do not have compatible
intrastate regulations will be made available to States with compatible
comprehensive programs to conduct certain high priority projects that
are innovative, successful, cost-effective and cost-efficient. This
change is consistent with the legislative direction in the ISTEA to
develop an improved distribution formula that both promotes innovative
programs and provides incentives to States that increase compatibility,
section 4002(k), Public Law 102-240. It rewards those States that have
fully compatible interstate and intrastate safety regulations,
encourages comprehensive programs, and provides funds for high priority
areas. The amendment will also enable the FHWA to maintain a basic
commercial motor vehicle inspection program uniformly and universally
applied by the States through the continued availability of Federal
funds.
The FHWA emphasizes that States must continue to meet the
requirement for interstate compatibility, and this interim final rule
change will not affect that requirement. The FHWA believes that fully
compatible safety and hazardous materials regulations are an essential
element of MCSAP. Through the MCSAP, the FHWA, the States, and the
Commercial Vehicle Safety Alliance (CVSA) have developed a coordinated,
nationwide program of uniform inspections, enforcement, and data
collection. This avoids duplication of efforts by the States and
promotes compliance by the industry.
The modification made by this interim final rule continues the
progress made through MCSAP by permitting States with only intrastate
variances to continue to participate in the basic program while
providing a strong incentive for them to adopt and enforce compatible
intrastate regulations.
Compatible Regulations
A major goal of the MCSAP is to achieve nationwide uniform
regulations, laws, and practices. The FHWA has determined that forty-
nine States, the District of Columbia, and three territories have
adopted compatible rules applicable to interstate commerce. Thirty-six
States and territories have adopted compatible intrastate rules. This
is indicative of the significant progress that the States and the FHWA
have made largely through the MCSAP toward reaching the goal of
national uniform commercial motor vehicle safety regulations and
enforcement.
Ideally, State commercial motor vehicle laws would exactly mirror
Federal regulations. Indeed, the States are encouraged to adopt
regulations applicable to both interstate and intrastate commerce which
are identical to the Federal regulations. Moreover, the FHWA strongly
encourages States to implement a system which allows them to
automatically adopt any new Federal regulation, which would preclude
any question of future incompatibility and reduce the chance of an
interruption in the States' MCSAP funding. The FHWA recognizes,
however, that circumstances may exist which make complete adoption by
the States difficult. The FHWA has therefore provided the States with
limited flexibility, through the Tolerance Guidelines, to address these
local issues. In accordance with the ISTEA mandate to issue these
guidelines in formal regulations, they were included in the FMCSRs as
appendix C to part 350 (57 FR 174, September 8, 1992). The Tolerance
Guidelines define the extent to which intrastate regulations can differ
from the FMCSRs, yet still be considered to be compatible. Additional
differences and industry exemptions are strongly discouraged. In order
to gain FHWA's approval of additional differences, a State must carry a
heavy burden of demonstrating that the difference would have little
impact on commercial vehicle safety.
Without this modification to part 350, 13 of the States who are
currently participating in MCSAP may not qualify for any MCSAP formula
grants in fiscal year (FY) 1995. These States (Alaska, Arizona,
California, Iowa, Kentucky, Maine, Maryland, Minnesota, Mississippi,
Nebraska, Pennsylvania, Washington, and Wisconsin) are allocated a
combined total of $16.7 million in Federal funds. These States
conducted a combined total of 530,886 of the 1.6 million driver/vehicle
inspections done in FY 1992. If the current part 350 requirements are
not changed as provided in this rule, these States will no longer
receive any MCSAP funding, which provides a significant portion of the
resources for them to conduct roadside commercial vehicle and driver
inspections, safety and compliance reviews, uniform accident and safety
data collection, drug and alcohol abatement programs and other similar
activities which have contributed to the significant reduction of
commercial vehicle accidents on our nation's highways since MCSAP began
in FY 1984. Thus, the FHWA has concluded that total loss of MCSAP funds
for these States with some remaining intrastate incompatible rules and
regulations would have an adverse impact on commercial motor vehicle
safety.
Change to MCSAP Rule, Part 350
This change will allow for distribution of 50 percent of the basic
formula allocation to those States which have incompatible intrastate
regulations after September 30, 1994. The FHWA has determined that a 50
percent reduction in an incompatible State's basic formula is
significant enough to serve as an incentive to the State to enact
compatible laws. It is believed that a lesser reduction would not send
as strong a message to those States which still have incompatible
regulations. Without this change in Part 350, the States with
incompatible regulations would not be eligible to receive any Federal
MCSAP funding for FY 1995.
The formula funds which are withheld from those States which do not
have compatible intrastate regulations will be made available to States
with comprehensive programs to conduct certain high priority projects
that are innovative, successful, cost-efficient and cost-effective. See
Sec. 4002(k) of the ISTEA. States with incompatible intrastate
regulations may also request these funds for activities aimed at
achieving a comprehensive program.
A comprehensive program is one in which a State has and enforces
compatible regulations which pertain to both interstate and intrastate
transportation and has a motor carrier safety program which includes
roadside inspections; compliance reviews; traffic enforcement;
hazardous materials training; drug and alcohol enforcement; a fully-
implemented SAFETYNET program, including the National Governors
Association accident data collection, and as otherwise defined by FHWA
policy. The FHWA believes that States which integrate these activities
into their MCSAP have the most effective, cost efficient, and
successful commercial vehicle safety programs.
States with comprehensive programs which are applying for these
redistributed funds should request these funds for high priority
projects. High priority projects are those projects identified by FHWA,
in consultation with the States, as having the highest impact on
commercial motor vehicle and driver safety. Generally, the FHWA would
not support the use of these funds for activities that create one-time
personnel hiring which could not be funded in following years. High
priority projects will change from year to year to support the growth
of the program. Current high priority projects include advanced brake
inspection technologies, roadside data collection and communication
devices, border enforcement to support the North American Free Trade
Agreement, local commercial vehicle enforcement, and drug and alcohol
enforcement activities.
Section-by-Section Analysis
Section 350.11 Adopting and Enforcing Compatible Laws and Regulations
This section is amended to correct an error which appears in
Sec. 350.11(a). This correction changes the word ``applicable'' to
``inapplicable'' in paragraph 350.11(a). This subsection provides the
discretion to allow funding notwithstanding the incompatibility of
State laws and regulations applicable to intrastate commerce.
Section 350.21 Distribution of Funds
This section is amended to clarify that full basic allocations will
only be available to those States which have adopted and are enforcing
compatible regulations applicable to both interstate and intrastate
commerce. States with incompatible intrastate regulations will be
eligible for only 50 percent of the basic formula allocation.
Appendix C to Part 350, Tolerance Guidelines for Adopting Compatible
State Rules and Regulations
A paragraph is added to appendix C which allows limited funding for
States which have incompatible intrastate regulations.
Rulemaking Analyses and Notices
Administrative Procedure Act
The FHWA has waived prior notice and opportunity for public comment
on this rule because it believes that such prior notice and opportunity
for public comment, at this time, would be contrary to public interest
within the meaning of section 4(b)(3)(B) of the Administrative
Procedure Act, 5 U.S.C. 553(b)(3)(B).
The final MCSAP rule published on September 8, 1992, indicated that
States must achieve compatibility with Federal safety rules within
published Tolerance Guidelines by October 1, 1994, the first day of
Federal fiscal year 1995. Based on State submissions for Federal fiscal
year 1994, the FHWA now believes that 13 States have not yet achieved
an acceptable level of compliance for intrastate safety rules and,
unless changes are made in such State laws, these States will lose all
MCSAP funding on October 1, 1994. Each of these States, however, has
achieved full interstate compliance and substantial intrastate
compliance. The FHWA has decided that it should revise the amount of
MCSAP funds subject to reduction due to a lack of intrastate
compatibility to ensure that important safety programs may be continued
in the States while providing an incentive to States to achieve further
intrastate compatibility with Federal motor carrier safety rules.
By promulgating an interim final rule at this time, the FHWA hopes
to provide State legislatures sufficient time to consider amendments to
State laws, if necessary. Typically, State legislatures meet during the
first three months of the calendar year. While the FHWA notes that the
effect of this interim final rule is to lessen the reduction in MCSAP
funds States will experience unless they revise their intrastate rules,
the FHWA also recognizes that this action will reinforce for the States
the consequences of this incompatibility. Concurrent with this action,
the FHWA is writing to the 13 affected States explaining the basis for
determining that their intrastate rules do not fall within the
Tolerance Guidelines.
Likewise, the FHWA believes that adopting an interim final rule at
this time will provide State agencies with adequate time to adjust
their programs to accommodate lower MCSAP funding levels before October
1, 1994. If the FHWA delays this action to accept public comment before
taking the action, the FHWA believes that States will not have adequate
notice before October 1, 1994, to take action to avoid the reduction in
MCSAP funds or to plan accordingly.
For these reasons, the FHWA finds that it would be contrary to the
public interest to provide notice and opportunity for public comment
before issuing this rule. Nevertheless, the FHWA is opening a public
docket for this rule and providing 60 days for the receipt of public
comment. The FHWA will consider all comments received during this 60
day period in determining whether any revision is necessary to the rule
published today.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this document does not contain
significant regulatory action under Executive Order 12866 or a
significant regulation under the regulatory polices and procedures of
the DOT. It is anticipated that the economic impact of this rulemaking
will be minimal; therefore, a full regulatory evaluation is not
required. There should be no economic impact on private entities as the
action is entirely related to adjusting distribution of funds to public
entities to maintain or enhance enforcement of safety regulations. This
rule will allow the 13 States with identified intrastate
incompatibilities to remain in the MCSAP at a 50 percent funding level.
The additional funds made available from these incompatible States will
potentially provide increased funding for innovative and high priority
projects for the States with comprehensive programs.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this rule on small
entities. Based on the evaluation, the FHWA hereby certifies that this
action will not have a significant economic impact on a substantial
number of small entities. This rule relates to the requirements States
must meet to qualify for Federal funding under the MCSAP. This rule
does not impose any direct requirement on small entities that will
result in increased economic costs.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612. This is a grant program to
induce States to adopt compatible safety regulations. The effect of the
change adopted today will be to reduce the impact on States that have
made substantial efforts to adopt compatible regulations, but which do
not fully comply. The action increases the individual discretion of
States which would otherwise lose access to Federal funds because of
exemptions and other tolerances applicable to wholly intrastate
transportation.
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.
Paperwork Reduction Act
This action does not contain a collection of information
requirement for purposes of the Paperwork Reduction Act of 1980, 44
U.S.C. 3501-3520.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et. seq.) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 350
Grant programs--transportation, Highway safety, Highways and roads,
Motor carriers, Motor vehicle safety, Penalties, Uniformity.
Issued on: January 25, 1994.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA is amending title 49,
Code of Federal Regulations, subtitle B, chapter III, part 350 as
follows:
PART 350--[AMENDED]
1. The authority citation for part 350 continues to read as
follows:
Authority: 49 U.S.C. app. 2301-2304, 2505-2507; 49 U.S.C. 3102;
Secs. 401-404, Pub. L. 97-424, 96 Stat. 2097, 2154; Sec. 15(d), Pub.
L. 101-500, 104 Stat. 1213, 1219; Secs. 4002 and 4009, Pub. L. 102-
240, 105 Stat. 2140; and 49 CFR 1.48.
2. Section 350.11 is amended by revising paragraph (a) to read as
follows:
Sec. 350.11 Adopting and enforcing compatible laws and regulations.
(a) No funds shall be awarded under this part to States that do not
adopt and enforce laws and regulations that are compatible with the
FMCSR (except as may be determined by the Administrator to be
inapplicable) and the FHMR, unless otherwise provided in the Tolerance
Guidelines (appendix C to this part).
* * * * *
3. Section 350.21 is amended by adding paragraph (d)(3) to read as
follows:
Sec. 350.21 Distribution of funds.
* * * * *
(d) * * *
(3) Beginning on October 1, 1994, and each October 1 thereafter,
more than 50 percent of the basic formula allocation provided for in
this section if any such State has adopted and is enforcing compatible
regulations applicable to interstate transportation, but has not
adopted or is not enforcing compatible regulations applicable to
intrastate transportation.
* * * * *
Appendix C [Amended]
4. Appendix C to part 350 is amended by adding a new paragraph (j)
under item number 3 to read as follows:
* * * * *
3. Tolerance Guidelines for State Rules and Regulations Where the U.S.
Department of Transportation Regulations do not apply
* * * * *
(j) States whose rules and regulations do not meet these
guidelines may still be considered qualified for participation under
Sec. 350.21. However, their formula allocations for basic grant
funds will be subject to the limitations of Sec. 350.21 (d).
[FR Doc. 94-2118 Filed 2-2-94; 8:45 am]
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