[Federal Register Volume 64, Number 55 (Tuesday, March 23, 1999)]
[Proposed Rules]
[Pages 13948-13952]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-6850]
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DEPARTMENT OF TRANSPORTATION
Bureau of Transportation Statistics
49 CFR Part 1420
[Docket No. BTS-98-4659]
RIN 2139-AA05
Revision to Reporting Requirements for Motor Carriers of Property
and Household Goods
AGENCY: Bureau of Transportation Statistics, DOT.
ACTION: Supplemental notice of proposed rulemaking.
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SUMMARY: The Bureau of Transportation Statistics (BTS) collects data
from motor carriers of property on annual report Form M and quarterly
report Form QFR. BTS proposes to adopt measures concerning what data
from those forms are made publicly available. Summary information,
where information cannot be readily matched to an individual carrier,
would always be made available. However, the proposed rules would
restrict access to individual carrier data for some of the operating
statistics, revenue equipment, and employment data items. Access to
these data items would be limited to the Department of Transportation
(DOT) and to such persons and in such circumstances as DOT determines
to be in the public interest or consistent with the Department's
regulatory functions and responsibilities.
DATES: Comments must be submitted by April 22, 1999.
ADDRESSES: Please direct comments to the Docket Clerk, Docket No. BTS-
98-4659, Department of Transportation, 400 Seventh Street, SW., Room
PL-401, Washington, DC 20590, from 10 a.m. to 5 p.m., Monday through
Friday, except Federal holidays.
Comments should identify the regulatory docket number and be
submitted in duplicate to the address listed above. Commenters wishing
the Department to acknowledge receipt of their comments must submit
with those comments a self-addressed stamped postcard on which the
following statement is made: Comments on Docket BTS-98-4659. The Docket
Clerk will date stamp the postcard and mail it back to the commenter.
If you wish to file comments using the Internet, you may use the
U.S. DOT Dockets Management System website at http://dms.dot.gov.
Please follow the instructions online for more information.
FOR FURTHER INFORMATION CONTACT: David Mednick, K-2, Bureau of
Transportation Statistics, 400 Seventh Street, SW., Washington, DC
20590; (202) 366-8871; fax: (202) 366-3640; e-mail:
ck@bts.gov.
SUPPLEMENTARY INFORMATION:
I. Electronic Access
You can examine all comments that were submitted to the Rules
Docket concerning this rulemaking at: Department of Transportation, 400
Seventh Street, SW., Room PL-401, Washington, DC 20590, from 10 a.m. to
5 p.m. , Monday through Friday, except Federal holidays. Internet users
can access the comments at the address: http://dms.dot.gov. Search for
Docket Number 4659. Please follow the instructions online for more
information and help.
You can download an electronic copy of this document using a modem
and
[[Page 13949]]
suitable communications software from the Federal Register Electronic
Bulletin Board Service at (202) 512-1661. If you have access to the
Internet, you can obtain an electronic copy at http://www.bts.gov/mcs/
rulemaking.htm.
II. Background
Authority
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,
Pub. L. 104-88, 109 Stat. 803 (1995) (codified at 49 U.S.C. 14123).
This authority has been delegated to the Director of the Bureau of
Transportation Statistics (BTS). 49 CFR 1.71.
Regulatory History
On November 3, 1998, BTS published a Notice of Proposed Rulemaking
(NPRM) which proposed rules for revising the data collected from Class
I and II motor carriers of property and household goods (63 FR 59263).
It also proposed a system for carriers to request exemptions from
filing reports and exemptions from public release of their reported
data. On November 25, 1998, BTS published a notice extending the
comment period until January 15, 1999 (63 FR 65163). In addition to
publishing this Supplemental Notice of Proposed Rulemaking (SNPRM), BTS
is also publishing the final rule on the NPRM (Final Rule). The Final
Rule is being published in this issue of the Federal Register. While
the NPRM and Final Rule addressed the issue of confidentiality of
individual carrier reports, they did not examine the issue of public
availability of the data generally.
Brief History of the Data Collection Program
The Interstate Commerce Commission (ICC) collected financial data
from regulated motor carriers from the 1930's until its sunset at the
end of 1995, when the data collection was transferred to the Department
of Transportation (DOT). See 49 U.S.C. 11145 and its implementing
regulations at 49 CFR part 1420.1 Between 1978 and 1994, the
ICC significantly reduced the reporting requirements. It substantially
shortened report forms and eased record retention requirements. These
changes followed the shift in the ICC's focus from close economic
regulation of the motor carrier industry to industry oversight. The
last revision to accounting and reporting requirements, ICC's Ex Parte
No. MC-206, 10 I.C.C.2d 329 (1994), contains additional background
information.
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\1\ The regulations were recently transferred from 49 CFR part
1249 to 49 CFR part 1420. See Reports of Motor Carriers;
Redesignation of Regulations Pursuant to the ICC Termination Act of
1995, 63 FR 52192 (Sept. 30, 1998).
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Changes Made to the Data Collection Program by the Final Rule
The Final Rule, discussed above in ``Regulatory History,''
implements the ICC Termination Act of 1995 (the ICCTA), which abolished
the ICC and transferred some of the data collection program to DOT.
While the ICCTA continued the program, it made several changes to it.
Similar to the legislation replaced by the ICCTA, then codified at 49
U.S.C. 11145, the ICCTA 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.
The former 49 U.S.C. 11145 did not explicitly charge ICC to collect
information relevant to safety and did not specify minimum data to be
collected. The ICCTA 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.
The ICCTA specifies the criteria to be used in designing the reporting
program. DOT must consider: (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. In the ICCTA,
Congress explicitly called on DOT to streamline and simplify these
reporting requirements to the maximum extent practicable.
Unlike the former 49 U.S.C. 11145, the ICCTA 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 a carrier's report. 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,
for the latter exemption the requestor must not be a publicly held
corporation or must not be subject to financial reporting requirements
of the Securities and Exchange Commission.
To implement the ICCTA, BTS proposed changes to the reporting
requirements and proposed procedures for carriers to request
exemptions. After receiving comments on the proposal, BTS issued the
Final Rule, which made a number of changes to the data collection
program. Class I carriers, those with annual operating revenues of $10
million or more, will now file significantly reduced annual and
quarterly reports. Class II carriers, those with annual operating
revenues of between $3 and $10 million, will file a modified annual
report. In addition, the Final Rule sets out procedures for carriers to
request exemptions from filing and exemptions from public release of
their reports. For more information, please refer to the NPRM and Final
Rule.
Content of Carrier Reports
The annual report collects financial and operating data from Class
I and Class II for-hire motor carries of property and motor carriers of
household goods. The types of data, with varying amount of detail for
each, are: (1) Assets, (2) liabilities; (3) operating revenue; (4)
other revenue; (5) detailed operating expenses; (6) other expenses; (7)
miles, tons, shipments, and ton-miles by industry segment; (8) revenue
equipment; and (9) employment and compensation. Only Class I carriers
are required to file the quarterly report, which contains much fewer
data items and in much less detail. The types of data required in the
quarterly report are: (1) Operating revenue; (2) other revenue; (3)
operating expenses; (4) other expenses; and (5) miles, tons, and
shipments.
The data are used by the Department of Transportation, other
federal agencies, motor carriers, shippers, industry analysts, labor
unions, segments of the insurance industry, investment analysts, and
the consultants and data vendors that support these users. Among the
uses of the data are: (1) Developing the U.S. national accounts and
preparing the quarterly estimates of the Gross Domestic Product; (2)
measuring the performance of the for-hire motor carrier industry
[[Page 13950]]
and segments within it; (3) monitoring carrier safety; (4) benchmarking
carrier performance; and (5) analyzing motor carrier safety,
productivity, and its role in the economy.
Confidentiality--Background
Under the current policy, individual carrier reports are made
available to the public, unless otherwise prohibited by law. This
policy was carried over from the time when the ICC administered the
program. With the changes made by the ICCTA, as implemented by the
Final Rule, privately held carriers are able to request that their
report be kept confidential.
To understand how confidentiality is treated in the ICCTA requires
a bit of background about the Freedom of Information Act (FOIA) (5
U.S.C. 552). Under FOIA, any person can obtain records from a federal
agency, unless the records (or a part of the records) are protected
from disclosure by any of the law's nine exemptions. Records include
reports filed with the government by private entities, such as Form M
and Form QFR. Of FOIA's nine exemptions, where disclosure is not
mandatory, Exemption Four is relevant here. It protects ``trade secrets
and commercial or financial information obtained from a person (that
is) privileged or confidential.'' Information is confidential under
Exemption Four if disclosure would be likely ``to cause substantial
harm to the competitive position of the (reporting carrier)'' or
``impair the Government's ability to obtain necessary information in
the future.'' 2
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\2\ National Parks & Conservation Ass'n v. Morton, 498 F.2d 765
(D.C. Cir. 1974).
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Like FOIA, the ICCTA both calls for information to be available and
restricts availability in certain instances. While nothing in the
statutory authority explicitly requires that information be made
publicly available, it is implied. BTS, in designing the data
collection program, must consider not just government needs but also
safety needs; use of the data by the private sector, academics, and the
public; and the public interest. This gives a strong public policy
statement in support of making individual carrier data accessible to
the public. While summary data may meet certain needs, individual
carrier data would be more helpful to some analyses. Furthermore,
effective safety monitoring requires individual carrier data. The
implication that individual carrier data generally be made publicly
available is further supported by the fact that the ICCTA defines the
circumstances under which a carrier's data must be withheld from
disclosure. BTS must withhold carrier information from public release
in those situations where the carrier can show competitive harm would
result. In this case, the carrier's entire report is withheld for three
years, except for internal DOT use or in aggregate form.
Confidentiality also plays a role in shaping the data collection, since
the ICCTA instructs BTS to take into account the need to preserve
confidential business information and prevent competitive harm.
Confidentiality--Comments in the NPRM
As discussed above, individual carriers are able to request an
exemption if public release would likely result in substantial
competitive harm. Several commenters, however, advocated that some or
all of the information should be kept confidential for all carriers.
That is, the information could cause competitive harm not just in a
particular carrier's case, but for carriers generally. These commenters
said that is it common knowledge the data can be used by competitors to
the reporting carrier's detriment. Publishing only aggregate data would
serve most purposes because private data users have other means of
getting data. Furthermore, in other industries companies are not
required to divulge financial information. Since no public purpose
would be served and the information provided by carriers is private,
otherwise confidential, commercially sensitive information, it should
not be publicly released. These commenters generally stated that the
data collected (presumably all or most) fell into the confidentiality
category. One wanted all data protected, but was most concerned about
operating statistics (schedules 300 and 400 of proposed Form M). This
was identified as information that could, when used in combination with
other financial information, be used by competitors to the detriment of
the reporting carrier. That is, the units of operation are most
sensitive because they allow calculation of such items as revenue per
mile and cost per mile.
By contrast, some other commenters pointed to the need for
individual carrier data. They stated that the reports enable not only
the government but also non-governmental entities to review the
financial status of the motor carriers. This helps ensure that those
carriers who are most likely to create safety risks are subject to
oversight and evaluation. Some representatives and associations of
insurance companies stated that they use reports to ascertain and
evaluate the financial condition of insured and applicant motor
carriers. They also state that this type of information is not
generally available otherwise. A motor carrier supported continued
availability, saying the information is pro-competitive, as it allows
the public to monitor the profile of motor carriers. Furthermore,
markets, including the motor carrier industry, operate most efficiently
in the light of adequate competitive information. Without this
essential data, shippers would have diminished ability to compare
carriers, and carriers would have less incentive to benchmark their
operations. Another commenter pointed out that the financial
information is useful to shippers, who are concerned about the
financial well-being of carriers they use.
Confidentiality--Proposal
The goal of the Final Rule is to determine what data items to
collect. BTS had to balance user needs with the burden the data
collection places on respondents and strike this balance within the
guidelines and restrictions of the ICCTA. In this Supplemental Notice
of Proposed Rulemaking, BTS seeks to strike a similar balance and again
within the confines of the ICCTA. Data users need access to data, often
at the individual carrier level. Respondents face the burden of having
data they believe are proprietary and sensitive made available to
competitors, shippers, and the public.
To protect carriers from any potential harm, BTS could either
eliminate sensitive items from the data collection, withhold carrier
reports from public release individually, or withhold some or all data
from public release for all carriers. BTS proposes to use a combination
of these approaches. The Final Rule will reduce the data items we
collect to those that are most important. It also allows individual
carriers to assert competitive harm with respect to their
circumstances. This proposal would, to the extent allowed by law,
protect for all carriers the most sensitive of the information that is
collected under the revised forms. The proposal also includes a
provision for releasing individual carrier data in certain
circumstances, to ensure continued access for key uses.
The new rules would limit access to the following data items on the
report forms: all of the Operating Statistics data items, the Cost
column of the Revenue Equipment data items, and the Total Compensation
and Hours Earned or Miles Operated columns of the Employment
Information data items. We believe this is information that is
generally kept confidential by motor carriers and not voluntarily
disclosed to
[[Page 13951]]
shippers and competitors. Furthermore, these data elements of operating
information are those most likely to result in substantial competitive
harm for carriers if released. This information would be given a three
year confidentiality period, which is the amount of time confidential
business information is to be withheld from public release under the
ICCTA. Furthermore, three years is long enough to greatly diminish the
harmful potential of the data.
Summary data that do not identify individual carriers may be
released any time. In addition, individual carrier data withheld from
public disclosure may be released by BTS to: (1) Other components of
DOT for their internal use only; and (2) such persons and in such
circumstances as the Department of Transportation determines to be in
the public interest or consistent with the Department's regulatory
functions and responsibilities. Examples of uses that would likely
receive access to data restricted under this proposal include those
aimed at improving motor carrier safety or research evaluating policy
questions such as the impacts of changes to the driver hours of service
regulations. The user would have to state its intended use and agree to
abide by BTS's disclosure rules related to the restricted data. Uses
that would likely not receive access include individual carriers or
shippers seeking to improve their competitive position. There is no
absolute guarantee that this information can be withheld from
disclosure if requested under the Freedom of Information Act. If such
requests are filed, they would be dealt with on a case-by-case basis.
Certain financial and operating information submitted to BTS by air
carriers have been accorded confidential treatment under similar
guidelines and the system has worked quite well. (See 14 CFR 298.62(d)
and 14 CFR part 241 sections 19-6, 19-7 and 22). A similar system is
likewise used by the Surface Transportation Board regarding the rail
waybill data it collects (see 49 CFR 1244.8) and DOT's National Highway
Traffic Safety Administration in its class determinations of
confidentiality in certain circumstances (see 49 CFR 512.10 and
appendix B to 49 CFR part 512).
Effects of the Proposed Revisions
These proposed rules, in combination with the Final Rule, are
designed to minimize any potential detrimental affects of public access
to individual carrier data to the extent possible under law. The
changes incorporate aspects of the three major suggestions made by
commenters favoring greater protection. The new rules significantly
reduce the number and detail of data items class I carriers are
required to report. The proposed rules would restrict access to
individual carrier data for those data items that are most sensitive.
Carriers will still be able to claim that, despite the shortened report
form and protection of the most sensitive data items, in their
situation competitive harm still result. That is, a carrier will be
able to request that BTS further restrict public access to its report
or request that BTS waive the reporting requirements altogether.
BTS also notes that the data collection benefits carriers as they
are a large component of the data users. The data users will benefit
from the changes as BTS retained reporting of key information in the
Final Rule and is preserving access to data to meet most needs. First,
users will have access to most of the data at the individual carrier
level. Second, where individual carrier data are needed for one of the
broad listed uses, the user will also have access. Third, all users
will have access to all data at an aggregate level. Fourth, they will
have access to all data after three years.
III. Request for Comments
The goal of this proposed rulemaking is to reach an equitable and
practical balance, within the context of the ICC Termination Act of
1995, between access and confidentiality. It presumes that a certain
set of data is likely to be commercially sensitive and creates a system
designed to protect against the potential for competitive harm to
carriers while permitting access for principal uses. The issue of
protecting classes of data was not directly discussed in the earlier
NPRM and BTS did not seek comment on it. Nor has the public had a
chance to comment on the details of the system we are currently
proposing. Therefore, BTS is issuing this SNPRM and requests comments
concerning the above revisions to the public availability of the
information collected in motor carrier report Forms M and QFR. Among
other topics, you may wish to address one or more of the following: (1)
Would public availability of the identified data items be likely to
cause substantial competitive harms and why or why not; (2) are there
other data items that are confidential and public release of them would
either cause substantial competitive harm or would impair an important
government interest; (3) what changes, if any, need to be made to the
proposal to ensure that the ICCTA's goal of providing information for
listed uses is fulfilled.
IV. Rulemaking Analyses and Notices
Executive Order 12866 and DOT Regulatory Policies and Procedures
This rule is not considered a significant regulatory action under
section 3(f) of Executive Order 12866 and therefore is not reviewed by
the Office of Management and Budget.
This final rule is not considered significant under the regulatory
policies and procedures of the Department of Transportation (44 FR
11034). It would not affect reporting burden and would have no economic
impact. If anything, it would reduce the burden on motor carriers by
protecting sensitive information from public release.
The major beneficiaries of the data collection are the federal
government, the motor carrier industry, industry associations,
transportation investment analysts, transportation research analysts,
and motor carrier safety analysts. The program provides data that are
used in developing the national accounts, data for monitoring industry
trends, and data useful to the public and private sectors regarding the
operation and health of the trucking industry and individual carriers.
Regulatory Flexibility Analysis
Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), BTS
must consider whether a final rule would have a significant economic
impact on a substantial number of small entities. The definition of
``small business'' is contained in the Small Business Administration's
small business size standard regulations. For motor carriers of
property, small businesses are those with annual receipts of up to
$18.5 million. Under the current classification, there are about 2,800
reporting carriers of which an estimated 2,180 (or 78 percent) are
small businesses (all class II carriers and 31 percent of class I
carriers are classified as small businesses). The proposed changes will
not affect reporting burden for any reporting carriers. Instead they
would reduce the burden on motor carriers by protecting sensitive
information from public release. In addition, the changes would not
impose any new regulatory requirements, directly or indirectly, on
small entities. Therefore, I certify this proposal if adopted would not
have a significant economic impact on a substantial number of small
entities.
Paperwork Reduction Act Analysis
In this SNPRM, no changes are being proposed to either Form M or
Form QFR.
[[Page 13952]]
Other Determinations
BTS has analyzed this action for the purposes of the National
Environmental Protection Act. It will not have a significant impact
upon the quality of the human environment or the conservation of energy
resources. Accordingly, an Environmental Impact Statement is not
required. BTS has analyzed this action in accordance with the
principles and criteria contained in Executive Order 12612
(``Federalism'') and determined that the rule does not have sufficient
federalism implications to warrant the preparation of a federalism
assessment. This action does not impose unfunded mandates under the
Unfunded Mandates Reform Act of 1995. It does not result in costs of
$100 million or more to state, local, or tribal governments, in the
aggregate, or to the private sector, and is the least burdensome
alternative that achieves the objectives of the rule. Similarly,
because this action does not create an unfunded Federal mandate on
state, local or tribal governments, the requirements of section 1(a) of
Executive Order 12875, Enhancing Intergovernmental Partnerships, do not
apply. This action does not have potential takings implication under
Executive Order 12630 because it does not authorize any takings. In
accordance with Executive Order 12630, regarding Governmental Action
and Interference with Constitutionally Protected Property Rights, BTS
finds that this SNPRM implicates no takings, in that it does not
propose or implement licensing, permitting, or other conditions,
requirements, or limitations on private use, nor does it require
dedications or exactions from owners of private property. BTS has
reviewed this action in accordance with Executive Order 12988, Civil
Justice Reform, and has determined that this action meets the
applicable standards provided in section 3(b) of the Executive Order.
Nor does this action require OMB review in accordance with Executive
Order 13045, entitled Protection of Children from Environmental Health
Risks and Safety Risks.
Regulation Identifier Number
A regulation identifier 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 number 2139-AA05 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 1420
Motor carriers, Reporting and classification.
Proposed Rule
Accordingly, the Bureau of Transportation Statistics proposes to
amend 49 CFR part 1420 Reports of Motor Carriers, as follows:
PART 1420--REPORTS OF MOTOR CARRIERS
1. The authority citation for part 1420 continues to read as
follows:
Authority: 49 U.S.C. 14123.
2. In Sec. 1420.10, paragraph (c) is redesignated as paragraph (d).
3. Section 1420.10 is amended by adding paragraph (c) to read as
follows:
Sec. 1420.10 Public release of motor carrier of property data.
* * * * *
(c) Exceptions relating to certain operating information.
(1) The following data items contained in annual report Form M or
quarterly report Form QFR shall be withheld from public release for a
period of three years after the report's due date: all of the Operating
Statistics data items, the Cost column of the Revenue Equipment data
items, and the Total Compensation and Hours Earned or Miles Operated
columns of the Employment Information data items.
(2) Except as provided in paragraph (b) of this section, individual
carrier financial data withheld from public disclosure may be disclosed
by BTS to such persons and in such circumstances as BTS determines to
be in the public interest or consistent with the Department of
Transportation's regulatory functions and responsibilities.
(3) This paragraph applies to annual reports covering 1998 and
later years, and quarterly reports beginning with the first quarter of
1999.
* * * * *
Ashish Sen,
Director, Bureau of Transportation Statistics.
[FR Doc. 99-6850 Filed 3-22-99; 8:45 am]
BILLING CODE 4910-FE-P
