[Federal Register Volume 64, Number 45 (Tuesday, March 9, 1999)]
[Proposed Rules]
[Pages 11414-11431]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5682]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 350
[FHWA Docket No. FHWA-98-4878]
RIN 2125-AE46
Motor Carrier Safety Assistance Program (MCSAP)
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: The FHWA proposes to amend the regulations governing the Motor
Carrier Safety Assistance Program (MCSAP) by incorporating provisions
of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L.
105-178, 112 Stat. 107 (1998). This action would broaden the scope of
the MCSAP beyond enforcement activities and programs by requiring
participating States to assume greater responsibility for improving
motor carrier safety. Proposed amendments would require States to
develop performance-based plans reflecting national priorities and
performance goals, revise the MCSAP funding distribution formula, and
create a new incentive funding program. The effect of this action would
be to implement the performance-based program requirements of TEA-21
and provide States greater flexibility in designing programs to address
national and State goals for reducing the number and severity of
commercial motor vehicle (CMV) crashes. Many of these revisions have a
congressionally mandated deadline of FY 2000 (October 1, 1999).
DATES: Comments to this NPRM should be received no later than May 10,
1999. Late comments will be considered to the extent practicable.
ADDRESSES: Signed, written comments should refer to the docket number
appearing at the top of this document and must be submitted to the
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW.,
Washington, DC 20590-0001. All comments received will be available for
examination at the above address between 9 a.m. and 5 p.m., e.t.,
Monday through Friday, except Federal holidays. If you desire
notification of receipt of comments, include a self-addressed, stamped
envelope or postcard.
FOR FURTHER INFORMATION CONTACT: Mr. Brian McLaughlin, Office of Motor
Carrier Safety & Technology, (202) 366-9579, or Mr. Charles Medalen,
Office of the Chief Counsel (HCC-20), (202) 366-1354, Federal Highway
Administration, U.S. Department of Transportation, 400 Seventh Street,
SW., Washington, D.C. 20590.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users may access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions on-line for more information and
help.
You may download an electronic copy of this document using a
personal computer, modem, and suitable communications software from the
U.S. Government Printing Office Electronic Bulletin Board Service at
(202) 512-1661. Internet users may reach the Federal Register home page
at URL: http://www.nara.gov/fedreg and from the U.S. Government
Printing Office databases at URL: http://www.access.gpo.gov/nara.
[[Page 11415]]
Background
The Motor Carrier Safety Assistance Program (MCSAP) is a Federal
grant-in-aid program. It is an outgrowth of a very successful pilot
program implemented in a few States in 1980 to reduce truck and bus
crash involvement by combining uniform safety inspections with size and
weight enforcement activities. The character of the program has evolved
from a pilot program to a mature and effective commercial motor vehicle
(CMV) safety program with participation by all eligible jurisdictions.
The MCSAP was first authorized in the Surface Transportation Assistance
Act of 1982 (STAA) (secs. 401-404, Pub L. 97-424, 96 Stat. 2097, 2154)
and reauthorized in the Commercial Motor Vehicle Safety Act of 1986
(sec. 12014, Pub. L. 99-570, 100 Stat. 3207, 3207-186) and again in the
Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) (secs.
4001-4004, Pub. L. 102-240, 105 Stat. 1914). The original authorization
contained certain eligibility requirements for financial assistance,
including agreement to adopt and enforce safety regulations compatible
with the Federal Motor Carrier Safety Regulations (FMCSRs) and
Hazardous Materials Regulations (HMRs). The regulatory compatibility
requirement remains today and ensures a permanent and consistent
enforcement and safety presence throughout the nation.
The Motor Carrier Safety Act of 1984 (Title II of Pub. L. 98-554,
98 Stat. 2832, 2838) created the Commercial Motor Vehicle Safety
Regulatory Review Panel (Safety Panel) to analyze State CMV safety
requirements and develop recommendations on how to achieve
compatibility with the Federal regulations. The Safety Panel
recommended, in part, that the FHWA establish procedures for the
continual review and analysis of the compatibility of State safety laws
and regulations with Federal requirements through the MCSAP. Consistent
with these recommendations, the FHWA incorporated an annual review
process as a MCSAP eligibility criterion. Sec. 208 of the 1984 Act also
authorized the Secretary to preempt those State laws and regulations
affecting interstate CMV safety found to be inconsistent with Federal
laws and regulations. Such a finding would have the effect of rendering
inconsistent State laws and regulations unenforceable.
The MCSAP implementing regulations, published in 1984, included two
types of grants. Small fixed-amount development grants were available
to assist all States in achieving minimum program conditions.
Implementation grants, based upon an allocation formula, were available
to those States meeting the funding conditions for reimbursement of the
Federal share (80 percent) of the cost of eligible enforcement
activities. The grant agreement was based on an approved State
Enforcement Plan (SEP) detailing activities proposed for the succeeding
fiscal year.
The ISTEA reauthorized the MCSAP through FY 1997 and expanded the
scope of the program to include CMV safety initiatives beyond the
traditional inspection activities (e.g., hazardous materials training,
adoption and reporting of uniform truck and bus crash data elements,
commercial driver license (CDL) enforcement, and traffic enforcement
activities).
The ISTEA also allowed for in-kind contributions by States to be
counted toward their matching shares, increased the availability of
allocated funds for expenditure by the State to the year of allocation
plus one year, and specifically authorized discretionary reallocation
of unobligated funds. The regulations implementing ISTEA sought to
improve program effectiveness and transform the MCSAP into a more
performance-based program by encouraging innovation and initiative by
participating States. The regulations established special funding
categories rewarding those States designing comprehensive programs for
select activities and using their State CMV safety data in identifying
critical needs and then developing and implementing specific safety
performance outcomes, such as reduced crash rates.
New Legislation
The TEA-21 was signed into law on June 9, 1998. Sec. 4003 of TEA-21
authorizes the MCSAP at the following funding levels from FY 1998
through FY 2003: $79 million for FY 1998, $90 million for FY 1999, $95
million for FY 2000, $100 million for FY 2001, $105 million for FY
2002, and $110 million for FY 2003.
Section 4002 of the TEA-21 adds a new section 31100 to title 49 of
the U.S. Code which describes the purpose of the grant program. The
goals and directives outlined in that section closely parallel the
concepts and principles of a performance-based program. These changes
are intended to foster greater coordination and cooperation between
State and Federal jurisdictions in improving CMV safety. The changes
would also give States more flexibility to address their particular
safety issues through the MCSAP. Section 4002 of the TEA-21 also states
current program goals of (1) investing in activities achieving maximum
crash reductions, (2) assessing and improving statewide program
performance by setting program outcome goals, improving information and
analysis systems, and monitoring program effectiveness, (3) ensuring
adequate training of enforcement personnel, and (4) advancing promising
technologies and safe operating procedures.
Section 4003 of the TEA-21 expands the definition of ``commercial
motor vehicle'' to include vehicles with a gross vehicle weight (GVW)
or gross vehicle weight rating (GVWR) of at least 10,001 pounds. This
amendment will simplify enforcement in cases where a vehicle with a GVW
of more than 10,001 pounds does not have a corresponding manufacturer's
GVWR plate or is being operated in excess of the manufacturer's GVWR.
It also revises the hazardous materials portion of the definition of
``commercial motor vehicle'' in 49 U.S.C. 31101 to make it consistent
with the ``commercial motor vehicle'' definition in 49 U.S.C. 31132.
A key provision of TEA-21 is the section 4003 requirement that
MCSAP participating States implement performance-based CMV safety
programs by FY 2000. This provision shifts the emphasis of State
programs from measuring activity levels or inputs, (e.g., the number of
vehicles inspected) to focusing program effort on outcomes (e.g.,
reductions in CMV crashes, fatalities, and injuries). States have
reacted very positively to this change and all participating MCSAP
jurisdictions have implemented performance-based programs.
Section 4003 also revises the grant eligibility criteria and the
State plan format to require references to ``improving'' CMV safety and
``hazardous materials'' enforcement. This proposed amendment emphasizes
that the principal goal of the MCSAP is being expanded beyond simply
enforcing regulations to that of encouraging States to assume the
responsibility for finding ways to actively improve CMV safety. It also
reinforces the concept that it is equally important to adopt and
enforce both the FMCSRs and the HMRs. Additional proposed revisions
include (1) establishing programs ensuring proper and timely correction
of safety violations noted during roadside inspections, and (2)
ensuring that roadside inspections are conducted at locations that will
adequately protect the safety of both drivers and enforcement
personnel. These provisions would codify and reinforce
[[Page 11416]]
longstanding best practices of State CMV safety programs.
The legislation expands existing requirements that State agencies
coordinate the Commercial Vehicle Safety Plans (CVSP), originally
called the State Enforcement Plan, with the State Highway Safety Plans
under 23 U.S.C. 402. The TEA-21 mandates States participating in MCSAP
to coordinate the CVSP and data collection and information systems with
the State agency administering highway safety programs under title 23,
U.S.C. The January 1, 1994, deadline for SAFETYNET participation would
be deleted from the regulations since all States have met the
requirement. Each jurisdiction receiving MCSAP funding is required to
participate in SAFETYNET and other information systems. There is also a
new requirement for States to exchange information in a timely manner.
These revisions would encourage States and agencies within a State to
share best practices and develop broader-based safety programs.
Section 4003(f) of TEA-21 removes the current funding set-asides
for research and development, traffic enforcement, hazardous materials
training, public awareness, and demonstration of technologies and
methodologies. These set-asides were created to encourage uniform State
implementation of significant national programs but limited States'
flexibility in allocating their MCSAP resources. They are being
replaced by new allocation criteria allowing the administrative
flexibility needed for States to design programs targeting their unique
safety problems as well as meeting national priorities. The new funding
allocation allows up to 5 percent of MCSAP funds to be designated for
States, local governments and other persons using and training
qualified personnel for high priority activities and programs that
improve CMV safety and compliance with safety regulations. Up to 5
percent of MCSAP funds will also be available to States, local
governments, and other persons using and training qualified personnel
to carry out border CMV safety programs, enforcement activities, and
projects. The Secretary may also reimburse State agencies, local
governments, or other persons up to 100 percent for public education
activities relating to border or high priority activities, programs,
and projects.
The overall MCSAP would consist of four parts:
1. Basic Program Funds emphasizing uniform roadside driver and CMV
safety inspections, data collection and reporting, traffic enforcement,
drug and alcohol enforcement, educational activities, compliance
reviews, and current complementary activities. These funds would
include a performance factor that redistributes some Basic Program
Funds to States that achieve improved CMV crash performance.
2. Incentive Funds that encourage States to improve CMV crash
performance and to meet other safety performance criteria.
3. High Priority and Border Activity Funds.
4. Administrative set-aside of 1.25 percent to cover program
administration and State personnel training costs.
The Proposal
The purpose of this proposal is to (1) improve the effectiveness of
the MCSAP by implementing performance-based, results-oriented programs,
(2) implement TEA-21 revisions to the MCSAP, (3) provide an improved
grant distribution scheme which supports and enhances the performance-
based concept and rewards States for their safety program improvements,
(4) rewrite the MCSAP regulations to be consistent with our zero-base
efforts to eliminate redundancy and clarify requirements, (5) define
key terms such as ``performance-based program,'' ``Basic Program
Funds,'' ``Incentive Funds,'' ``national program elements,'' ``traffic
enforcement'' as it pertains to the MCSAP, and (6) make other
conforming amendments reflecting changes in the law and new program
direction.
Format Changes to the MCSAP Regulations
In 1992, the FHWA initiated a complete review of the FMCSRs, a
process known as a zero-base initiative, to revise and reformat the
regulations. The majority of these revised regulations will be
published as a separate NPRM in the near future. Because of the
importance of the MCSAP grant program to State CMV safety enforcement
efforts, these revised regulations are being separately proposed at
this time. Consistent with this effort, the existing Appendix A--
Guidelines To Be Used in Preparing State Enforcement Plan, Appendix B--
Form of State Certification, and Appendix C--Tolerance Guidelines for
Adopting Compatible State Rules and Regulations, would be eliminated
and the pertinent information would be incorporated into the
corresponding sections of the new, proposed regulatory text.
The FHWA has made a special effort to ensure that the language used
in this proposal is logically presented, clearly formatted, and easily
understood. The following three techniques have been used:
1. Question and Answer Format: The FHWA constructed the proposed
rules so that each section heading asks a question, and the answer to
the question becomes the regulatory requirement.
2. The Active Voice: A sentence constructed using the active voice
is usually easier to understand than one using the passive voice.
3. ``Plain English'': On October 4, 1993, the President issued
Executive Order 12866, stating ``all information provided to the public
by the agency shall be in plain, understandable language.'' (Section
6(a)(3)(f)). This proposal uses basic English and simple sentence
structure. We have minimized the use of complex, technical, and legal
terms as much as possible and adopted a more conversational writing
style.
Consolidation of Appendices
The proposal incorporates into the rule text what is currently set
apart in Appendices A, B, and C.
The following table shows where each section of the current
regulations would appear in the new format:
Part 350.--Commercial Motor Carrier Safety Assistance Program
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Current regulation Proposed regulation
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350.1--Purpose......................................... 350.103
350.3--Definitions..................................... 350.105
350.5--Policy.......................................... 350.101
350.7--Objective....................................... 350.101
350.9--Conditions for basic grant approval............. 350.107, 350.201
350.11--Adopting and enforcing compatible laws and
regulations (generally):
350.11(a).......................................... 350.201(a)
[[Page 11417]]
350.11(b).......................................... 350.331(c)
350.11(c).......................................... Removed.
350.11(d).......................................... 350.105 (compatible/compatibility)
350.11(e).......................................... 350.203
350.11(f).......................................... 350.331(d)
350.11(g).......................................... 350.173
350.11(h).......................................... 350.335(a)
350.11(i).......................................... 350.335(b)
350.13--State Enforcement Plan (SEP) for a basic grant. 350.213
350.15--Certification of compliance by State........... 350.209
350.17--Maintenance of effort.......................... 350.301
350.19--Grant application submission................... 350.205
350.21--Distribution of funds:
350.21(a).......................................... 350.303
350.21(b).......................................... 350.305
350.21(c).......................................... 350.323(a)
350.21(d).......................................... 350.323(b)
350.21(e)-(f)...................................... 350.313, 350.315, 350.317, 350.319, 350.321, 350.323,
350.325, 350.327, 350.329
350.21(g).......................................... 350.307
350.23--Acceptance of State plan....................... 350.205, 350.207
350.25--Effect of failure to submit a satisfactory 350.205, 350.207
State plan.
350.27--Procedure for withdrawal of approval........... 350.215
350.29--Eligible costs................................. 350.311, 350.315
350 App A--Guidelines To Be Used in Preparing State 350.213 The SEP has been renamed the Commercial Vehicle
Enforcement Plan. Safety Plan (CVSP).
350 App B--Form of State Certification................. 350.211
350 App C--Tolerance Guidelines for Adopting Compatible
State Rules and Regulations:
paragraph 1........................................ Removed.
paragraph (2)(a)................................... 350.337
paragraph (2)(b)................................... 350.337
paragraph (3)(a)................................... Removed.
paragraph (3)(b)................................... 350.341(a)
paragraph (3)(c)................................... 350.341(b)
paragraph (3)(d)................................... 350.341(c)
paragraphs (3)(d)(1)-(d)(11)....................... 350.343
paragraph (3)(e)................................... 350.341(d)
paragraph (3)(f)................................... 350.341(e)
paragraph (3)(g)................................... 350.341(f)
paragraph (3)(h)................................... 350.341(g)
paragraph (3)(i)................................... 350.341(h)
paragraph (3)(j)................................... 350.203
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Substantive Program Changes to the MCSAP Regulations
This section introduces new and revised terms for the MCSAP program
and discusses proposed changes affecting the character of the MCSAP
program.
Definitions
Removals: The term ``basic allocation'' would be removed and
replaced by either the term ``Basic Program Funds'' or ``Incentive
Funds.'' The term ``basic grant'' would be removed and replaced by the
term ``Basic Program Funds.''
Additions: Five new terms are proposed and would be defined under
Sec. 350.105: ``Basic Program Funds,'' ``Border Activity Funds,''
``High Priority Activity Funds,'' ``Incentive Funds,'' ``North American
Standard Inspection,'' and ``Performance Factor.''
Revisions: Three terms would be revised. The term ``commercial
motor vehicle'' (CMV) would be broadened to include vehicles with a
gross vehicle weight (GVW), gross vehicle weight rating (GVWR), gross
combination weight (GCW), or gross combination weight rating (GCWR) of
at least 10,001 pounds. The definition would also include CMVs hauling
placardable amounts of hazardous materials as described in the HMRs (49
CFR part 172, subpart F). This proposal would match the hazardous
materials portion of the definition of a CMV found in 49 U.S.C. 31132.
The term ``compatible/compatibility'' would reflect new regulations
of the Research and Special Programs Administration requiring
transporters of hazardous materials to comply with the HMRs for both
interstate and intrastate operation.
MCSAP Changes
With the enactment of TEA-21, the Congress has endorsed and
promoted the performance-based approach to MCSAP by all but eliminating
activity-specific funding set-asides from previous legislation. The
TEA-21 creates two new funding categories within the MCSAP:
High Priority Activities and Projects
The proposed rule would define this category as national program
activities designed to improve CMV safety and compliance with CMV
safety regulations, including public awareness efforts, education, and
technology demonstration. The Secretary may designate up to 5 percent
of available MCSAP funds each year for this purpose.
The proposed high priority funding allocation would allow the FHWA
to continue funding uniform national
[[Page 11418]]
emphasis area programs while allowing States to allocate formula funds
to address their own most pressing safety problems. The TEA-21 ensures
that high priority funds can be awarded to States, local governments,
and other persons that use and train qualified officers and employees
in coordination with State CMV safety agencies, through grants,
contracts, and cooperative agreements. Should High Priority Activity
Funds be available in a given fiscal year, the FHWA will solicit grant
proposals from the States.
Border Commercial Motor Vehicle Safety and Enforcement Programs
The new legislation establishes funding for border activities to
provide national resources to assist States along the nation's borders
with the added safety responsibilities they face with the full
implementation of the NAFTA. The Secretary may designate up to 5
percent of available amounts for the MCSAP allocation in a fiscal year
for States, local governments, and other persons for carrying out CMV
safety programs and enforcement activities and projects at the borders
of the United States. These amounts would be allocated to State
agencies, local governments, and other persons that use and train
qualified officers and employees in coordination with State CMV safety
agencies.
Commercial Vehicle Safety Plan (CVSP)
The FHWA proposes to change the requirements relating to what a
State would include in the CVSP in order to reflect a performance-based
program. The TEA-21 eliminates the current statutory requirement that
States enact an out-of-service (OOS) verification program. Instead,
States would be required, as part of the CVSP, to certify that they
have a process in place for timely and proper correction of all CMV
safety violations noted during inspections. States would also be
required to ensure that all inspections are conducted in locations that
adequately protect the safety of both drivers and enforcement
personnel. The new CVSP format would incorporate these provisions into
the CVSP Certification. States would be required to expand their
current practice of coordinating the State CVSP with the Highway Safety
Plan developed under 23 U.S.C. 402. The TEA-21 requires that States
coordinate their plan, data collection, and information systems with
State highway safety programs under title 23, U.S.C. The FHWA strongly
encourages State MCSAP agencies to take a leadership role in
coordinating planning, data collection, and information systems with
State highway safety programs under title 23. The guidelines for
preparing the CVSP would be removed from appendix A to Part 350 and
incorporated into the regulatory text of Sec. 350.213.
Adoption and Implementation of Performance-Based Programs
The TEA-21 also requires that all States adopt and implement a
performance-based MCSAP by the year 2000. This mandate has already been
achieved because participating States began developing performance-
based, results-oriented programs and CVSPs in FY 1998. The FHWA
recognizes and emphasizes that adopting a performance-based grant
program is an evolutionary process requiring continual improvement and
enhancement.
States have always been required to include an evaluation of their
program in the annual safety plan. For the most part, success was
measured by the number of activities conducted rather than outcomes
achieved. Even though these evaluations helped States identify program
improvements, a results-oriented program would better enable States to
identify problems and develop effective solutions. Adopting a
performance-based program gives the added benefit of allowing a State
to better support program decisions and more accurately measure the
effectiveness of individual activities and the overall program.
The following is a discussion of key sections proposed for the
CVSP:
State Agency Goal or Mission--This section would contain a brief
statement describing the mission of the MCSAP lead agency.
Program Evaluation--This section would contain a comprehensive
evaluation of the effectiveness of prior years' program activities as
defined by the State. The evaluation period should be at least 2 years
and could be up to 5-10 years. States would describe the methodology
and results of the evaluation. States would comprehensively discuss
progress toward individual performance objectives listed under the
``Objectives'' section of the previous years' CVSP and identify any
safety or performance problems discovered. States would identify those
problems in the new or modified CVSP. The discussion would set forth
the original problem, the intended objectives (activities and
strategies), performance measures achieved, recommended modifications
to the CVSP, if any, and the actual final outcome. States may carry
over objectives from one year to the next. However, modified or new
objectives would have to be discussed in the new or modified CVSP and
approved before implementation. The State would need to identify the
specific period defined in its evaluation discussion (e.g., 2 years, 5
years, etc.).
The issue of what period of time must or should be covered by
States in a program evaluation has created confusion for many years. In
order to assess progress in achieving safety goals, States must have a
process to measure the impact of their program efforts. In past years,
many States have indicated that they could not provide evaluation data
for the previous fiscal year's program activities in the current year
CVSP. States indicated this could not be done either because program
activities were still underway or that program data had not yet been
fully collected, processed, or evaluated. This led to CVSPs containing
limited evaluation data.
What the agency proposes with this rule is for States to provide
trend data in their CVSP as a means of evaluating program progress made
to date. Ideally, these evaluations would include a breakdown of impact
by fiscal or calendar year. In the absence of available data for the
year immediately preceding the current CVSP, the agency requests that
the States include trend analysis for the program area in question
using the most current data available.
National Program Elements--Each CVSP would address, in a
performance-based manner, the national elements described in
Sec. 350.109: (a) driver/vehicle inspections, (b) traffic enforcement,
(c) compliance reviews, (d) public education and awareness, and (e)
data collection and upload. Even if a State plans no activities for a
given element, it would be required to explain the basis for that
resource allocation.
Problem Statement--This would be a brief, yet definitive, statement
for each identified safety or performance problem to be addressed in
the plan. The statement would be supported by data or other
information. States would provide specific detail about what is
contributing to or causing the problem (if known), or whether further
research is needed to identify these factors. A hypothetical problem
statement follows: ``The 1997 Inspection System Report indicates that
30 percent of inspection reports for the State were rejected. We have
determined that the error rate was caused because inspectors improperly
recorded U.S. DOT identification numbers, resulting in an inability to
match the inspection with a known carrier (non-match).''
[[Page 11419]]
Performance Objectives--This section would clearly tie the
objectives of the plan to the problems identified. Each objective would
clearly state, in measurable terms, what the plan intends to
accomplish. Objectives would be realistic and have an adequate time
frame for achievement. Here is an example of a performance objective
for the hypothetical problem statement above: ``Decrease the non-match
rate for the State inspection reports to 20 percent or less in FY 99.''
Strategy--This section would describe the general, measurable
method(s) to be used to accomplish each objective. Here is an example
of a strategy for the hypothetical performance objective above:
``Improve inspectors'' knowledge of proper carrier identification and
recording procedures.''
Activity--States would specify how they intend to use resources to
implement the strategy identified above. Here are three sample
activities for the hypothetical strategy above: (1) Send 30 inspectors
to the ``Inspection Recording Techniques'' training class conducted by
the National Training Center by 9/30/99, (2) Use laptop and OMC
inspection software, (3) Provide ``supervised'' inspection activities
(on-the-job training), and (4) Provide all inspectors with training in
carrier identification techniques.
Performance Measures--This section would list quantitative guides
used to rate the progress and effectiveness of the program. These
guides would be listed for individual elements of the CVSP or the
overall plan. This information would be used for on-going program
monitoring and the annual evaluation. An example of a performance
measure is ``Thirty inspectors complete Inspection Recording Techniques
training by 9/30/99.''
Performance Monitoring--This section would discuss the method the
State would use to monitor how effectively the CVSP is being
implemented. The State would clearly designate (1) who will monitor the
CVSP, (2) how frequently the plan will be monitored, (3) to whom
reports would be submitted, and (4) how reports will be submitted. The
information derived from this process would demonstrate the State's
progress toward achieving its objectives, provide a tool for improving
the plan, and provide interim data for evaluation.
Resources--States would provide a comprehensive description of all
resources required to accomplish proposed objectives. Resources would
be consistent with eligible expenses under Sec. 350.311, including
personnel, equipment, materials and supplies, information systems, and
contractual services needed to accomplish those objectives. States
would describe resources and estimate the total dollar expense. States
are encouraged to be creative and consider joint ventures with other
States as well as using existing Federal government, university, and
commercial resources.
Additional Activities--This section would indicate, in a
performance-based manner, planned enforcement activities in which the
State is involved (e.g., vehicle size and weight, alcohol/controlled
substance checks, drug interdiction).
Local Jurisdictions
This NPRM provides a process for making High Priority and Border
Activity Funds available to local jurisdictions as well as lead MCSAP
State agencies. This provision could enhance MCSAP effectiveness by
providing additional enforcement and safety resources in every State.
The FHWA has long considered local agency participation to be critical
in improving enforcement/compliance activities and building a uniform
enforcement presence throughout the nation. This proposed provision is
not intended to enable local agencies to circumvent lead agency
authority. The FHWA would require local agencies to coordinate
activities with the lead State MCSAP agency, to the extent practicable,
in order to ensure national and State program uniformity and sharing of
best practices. The FHWA would provide grants directly to local
agencies only in cases where it is not possible to work through the
lead MCSAP agency. It is critical that inspections and other compliance
or enforcement activities be conducted uniformly. Therefore, we would
require local agencies and MCSAP agencies to coordinate development of
the CVSP and implementation of program activities. The basic conditions
being proposed for local agencies to qualify for these funds are
consistent with the conditions established for the State's MCSAP
agency.
Improved Allocation Formula and Processes
The same five formula factors, updated yearly, have been used to
allocate Basic Program Funds since the beginning of the MCSAP in 1984.
The national motor carrier safety program is being restructured to
focus on strategic safety investments, increased flexibility for
grantees, updated information systems and analysis, and improved driver
programs. The Basic Program Funds allocation formula is used to
determine the amount of funds the States participating in the MCSAP are
eligible to receive. While the reauthorization of the program was
pending, the FHWA reexamined the formula to explore possible changes to
the factors to reflect and support a performance-based approach.
During the reauthorization process, the Congress supported the use
of performance as a criterion for allocating MCSAP funds. The FHWA,
therefore, proposes to link some portion of this formula funding to
safety performance. To minimize program disruption in the States, the
FHWA recommends a gradual transition from allocating essentially all
MCSAP funds based upon formula factors to allocating a portion of MCSAP
funds to States based upon their CMV safety performance. For example,
after deducting the high priority, border, and administrative takedown
funds, in the year 2000, 90 percent of the remaining appropriated funds
will be allocated as Basic Program Funds according to the formula. The
remaining 10 percent of the funds available for allocation will be
placed in an incentive account from which States will receive
additional funds based on safety improvements. In the year 2001, to
encourage continued improved safety performance, the split is proposed
at 85 percent for the Basic Program Funds and 15 percent for the
Incentive Funds. In the year 2002, the split is proposed at 80 percent
and 20 percent. In 2003, the split is proposed at 75 percent and 25
percent. The following chart sets forth the proposed allocation of
MCSAP funds for a 4-year period.
Proposed MCSAP Funds Distribution
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal year 2000 Percent 2001 Percent 2002 Percent 2003 Percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total MCSAP Funds..................................... $95,000,000 ........ $100,000,000 .......... $105,000,000 ........ $110,000,000 ........
Administrative Takedown............................... 1,187,500 ........ 1,250,000 .......... 1,312,500 ........ 1,375,000 ........
High Priority Activities.............................. 4,750,000 ........ 5,000,000 .......... 5,250,000 ........ 5,500,000 ........
Border Activities..................................... 4,750,000 ........ 5,000,000 .......... 5,250,000 ........ 5,500,000 ........
[[Page 11420]]
Basic Program Funds................................... 75,881,250 90 75,437,500 85 74,550,000 80 73,218,750 75
Incentive Funds....................................... 8,431,250 10 13,312,500 15 18,637,500 20 24,406,250 25
--------------------------------------------------------------------------------------------------------------------------------------------------------
Incentive Funds would be used to reward those States achieving
improved safety performance or that meet specified safety performance
criteria.
The MCSAP Formula Workgroup
In 1997, the FHWA convened a MCSAP Formula Workgroup. The Workgroup
was comprised of OMC representatives from each of the nine FHWA
Regions, FHWA Headquarters, and a team from Oak Ridge National
Laboratory. This Workgroup had the following five objectives:
1. Review the current Basic Program Funds formula and its factors
in a historical context of fairness, equity, and safety impact.
2. Understand the needs of each of the States and Territories and
provide an analytical approach to the reexamination of the formula.
3. Consider potential new factors and evaluate their impact upon
recipients of MCSAP funds.
4. Discuss options for building safety performance measurements
into the process of apportioning funds to the States.
5. Produce a Basic Program Funds formula which more effectively
apportions the available funds as fairly as possible as an incentive
for improved CMV safety performance.
During the most recent Basic Program Funds formula review, the
Workgroup re-examined the five current formula factors (road mileage,
vehicle miles traveled, registrations, population, and fuel
consumption). Each factor was examined for reliability, stability over
time, and for correlation with other factors to ensure that they were
not redundant. The Workgroup found that truck registration data do not
measure CMV activity, because vehicles may be registered in one State
but operate primarily in another State. The Workgroup also recognized
that CMV registration often reflects where registration costs are the
lowest, rather than where the vehicle is operated. Furthermore, the
quality of registration data is suspect since vehicle registration
numbers can fluctuate greatly year by year. The four remaining factors
were considered valid because they continue to provide a measure of
overall traffic volume, indicate the potential for crashes, relate to
motor carrier activity levels, are easy to understand, and are derived
from reliable sources. The Workgroup also decided that annual
population estimates issued by the U.S. Bureau of the Census are
preferred to the decennial census because the annual figures more
accurately represent the current population and its gradual change over
the years does not cause extreme fluctuation of the funding allocation.
Potential New Factors
The Workgroup discussed a large number of potential Basic Program
Funds formula factors. These factors were identified in an attempt to
better and more fairly quantify the level of CMV activity within any
given State or Territory. The following sixteen potential formula
factors were considered and ultimately rejected for the reasons
provided.
1. Cost of Living. Proposed funding increases need to be driven by
CMV safety program requirements rather than the general condition of
the U.S. economy.
2. Intelligent Transportation System (ITS) activities. MCSAP funds
are safety enforcement-oriented. Other funding sources are available to
develop new technology.
3. Intermodal Activities. There are no reliable data sources
available at the current time.
4. Number of CMV Crashes. The Motor Carrier Management Information
System (MCMIS) crash file is not yet sufficiently populated to be
considered ready for rigorous use as a funding factor.
5. Number of Commercial Buses. There is no reliable source of data
at this time.
6. Number of Commercial Driver's Licenses (CDL). The current system
does not purge records of inactive drivers, creating difficulty in
establishing an accurate count of active CMV drivers.
7. State Contribution/Effort. This factor is a very difficult
number to quantify and verify.
8. Land Area. Land area was not considered to be a fair factor
because larger geographical areas do not necessarily represent more
motor carrier activity.
9. Commercial Truck VMT. This factor is not easy to derive from
``Highway Statistics'' data since that publication reports the total
VMT of all vehicles. Neither the International Registration Plan (IRP)
nor the International Fuel Tax Agreement (IFTA) can be used as a source
of data because they currently lack uniformity and consistency.
10. Hazardous Materials. It is very difficult to establish a
reliable, easily verifiable number of motor carriers.
11. Number of Commercial Motor Carriers. The MCMIS carrier census
file does not contain information on the number of intrastate motor
carriers. It is difficult to derive the number of intrastate motor
carriers within a State using the MCMIS and other data sources (e.g.,
the Truck Inventory and Use Survey [TIUS]).
12. Lane Miles. Lane miles are highly correlated with road miles
which is a well-understood current factor.
13. Miles of Interstate Highways. Interstate miles are also highly
correlated with road miles.
14. Miles of National Highway System (NHS). NHS miles are also
highly correlated with road miles. The category, however, is too
restrictive by itself to be a factor.
15. Three-year Moving Average of Population Estimates. The annual
population estimates are easier to use and more accurate and
verifiable.
16. Traffic Density Index. Traffic density was defined by VMT/road
miles, VMT/lane miles, and commercial VMT/lane miles. All three
definitions were tested. Analysis suggested that the traffic density
index at the State level does not accurately reflect the potential for
crash involvement.
Proposed Allocation Formula
After extensive analysis, the Workgroup proposed that the following
four factors be included in the Basic Program Funds formula for
determining funds allocation to the States:
1. Road Miles. This factor measures crash exposure, is easily
understood, applies to all types of vehicles, is very stable over time,
and is recognized by the States.
2. Total vehicle miles traveled (VMT). This is acceptable for the
same reasons listed in number 1.
3. Annual population estimates. Population is a factor which is
recognized by the States. The annual estimates are preferred because
they are highly correlated to the decennial
[[Page 11421]]
census yet most accurately reflect population sizes each year versus
every 10 years.
4. Special fuel consumption. This factor reflects the level of
motor carrier activity within a State, is derived from an audited
program for all States, and is based on actual fuel usage within a
State.
The Workgroup recommends that each factor be equally weighted at 25
percent. The rationale for this decision is that the resulting MCSAP
allocations would likely correlate with the crash rates reported by the
Fatal Analysis Reporting System (FARS). The formula, using four factors
equally weighted, would allocate the greatest share of formula funds to
the States with the largest number of crashes, and would provide
funding levels largely consistent with current formula allocations.
In order to achieve a balanced program and ensure every State is
afforded an opportunity to participate in the MCSAP, the apportionment
formula was adjusted for maximum and minimum allocations. The ceiling
amount was held at 4.944 percent of the total amount available for
allocation. The Territories receive a fixed amount of $250,000 (their
1996 formula funding level without the Traffic Enforcement and
Hazardous Materials earmarked funds). The minimum allocation for the
States and Puerto Rico was raised to $350,000 or 0.44 percent of the
formula funds available for allocation, whichever is greater. The
rationale for setting higher minimum allocations for the States and
Puerto Rico than for the Territories is because the Territories have
low population levels, road miles, and VMT (no statistics are provided
for special fuel consumption).
The FHWA proposes a Basic Program Funds allocation formula based
upon the four equally-weighted factors computed considering maximum and
minimum limits.
Performance Factor
After calculating a State's Basic Program Funds using the formula,
the FHWA proposes to adjust the State's basic program funding level by
applying a factor based upon a State's performance in reducing its CMV
crash rate. ``Crash rate'' is defined as the number of fatal crashes
involving large CMVs, as measured by the FARS, divided by the State's
annual population estimate. If the crash rate for the most recent
calendar year for which data are available exceeds the individual
State's 10-year average crash rate, the State's Basic Program Funds
allocation would be decreased by the amount that the crash rate
increased, up to a maximum penalty of 1 percent for each consecutive
year of increase in the State crash rate.
The methodology for incorporating the performance factor would be
as follows:
1. For the FY 2000 distribution, the FHWA would calculate a State's
10-year average crash rate period from 1988 through 1997. The 10-year
average crash rate would be calculated by dividing [the number
representing the State's aggregate number of large truck involved fatal
crashes as reported in FARS from 1988 through 1997] by [the number
representing the State's aggregate annual population estimate as
reported by the U.S. Census Bureau for the same 10-year period].
[GRAPHIC] [TIFF OMITTED] TP09MR99.051
2. The FHWA would then calculate the State's 1998 crash rate. The
formula would be as follows:
[GRAPHIC] [TIFF OMITTED] TP09MR99.052
3. If a comparison reveals the State's crash rate has increased,
the State would be penalized by the amount representing the rate of
increase. For example, if the 10-year average crash rate for the period
from 1988-1997 is .001865, and the 1998 crash rate is .001878, the
factor would be calculated as follows: .001878 minus .001865 equals
.000013 The number .000013 divided by .001865 times 100 equals 0.70
percent. The State would, therefore, lose 0.70 percent of its FY 2000
Basic Program Funds. The maximum forfeiture for FY 2000 would be 1
percent.
.001878 - .001865 = .000013
.000013 .001865 x 100 = .70% increase in rate
4. If a comparison reveals that the crash rate has decreased, the
State would be eligible for an upward adjustment of its Basic Program
Funds allocation. The funds forfeited by States under the performance
adjustment would be redistributed equally among those States where the
crash rate improves. These adjustments would be made prior to
distribution of funds.
5. The performance factor would limit the penalty for a State with
an increased crash rate to no more than 1 percent for each consecutive
year the crash rate increased. For example, if a State were to
experience an increase in crash rate in year 1, the penalty would be a
maximum of 1 percent. If in year 2, the State crash rate remained level
with year 1, the State would receive its full Basic Program Funds
allocation. If in year 2, the State crash rate went down, the State
would receive the full Basic Program Funds allocation plus an upward
adjustment to reflect its improved crash rate. If in year 2, the crash
rate went up, the State would lose a maximum of 2 percent. If the crash
rate continues to be above the 10-year average rate in consecutive
years, the maximum forfeiture will increase to 2 percent, 3 percent,
and 4 percent, in the second, third, and fourth occurrences,
respectively.
6. The calculations in steps 1 through 5 would be repeated in FY
2001 through 2003, adjusting the variables as follows:
[[Page 11422]]
----------------------------------------------------------------------------------------------------------------
Most recent data Maximum penalty
Calculation year Ten-year variable year variable cap (percent)
----------------------------------------------------------------------------------------------------------------
2001................................................... 1989-1998 1999 2
2002................................................... 1990-1999 2000 3
2003................................................... 1991-2000 2001 4
----------------------------------------------------------------------------------------------------------------
Incentive Funding
The primary objective of the MCSAP is to reduce CMV-involved
crashes and resultant fatalities, injuries, and property damage. The
agency is using a performance-based approach to encourage grant
recipients to improve highway safety performance. To that end, the FHWA
proposes to reward those States that reduce CMV-involved fatal crashes,
CMV-involved fatal crash rates, and/or have programs that meet
specified safety performance criteria. Eligibility for Incentive Funds
is not conditioned upon the results of the performance factor
computation. Incentive Funds would be awarded as follows:
1. Reduction of CMV-involved fatal crashes. States achieving any
reduction would be awarded five shares.
2. Reduction of CMV-involved crash rates. States reducing the CMV-
involved crash rate would be awarded four shares.
3. Timely reporting of CMV crash data within FHWA policy
guidelines. States uploading CMV crash reports within policy guidelines
would be awarded three shares.
4. Status verification of all CDLs through the Commercial Driver's
License Information System (CDLIS), National Law Enforcement
Telecommunication System (NLETS), or State licensing authority as part
of the State inspection process. States certifying that all CDLs are
verified as part of the vehicle/driver inspection process, through
CDLIS, NLETS, or the State licensing authority, would be awarded two
shares.
5. Reporting of inspection data within FHWA policy guidelines.
States uploading CMV inspection reports within policy guidelines would
be awarded one share.
The total of all States' shares would be divided into the dollar
amount of Incentive Funds available, thereby establishing the value of
one share. Each State's incentive allocation would then be determined
by the number of shares it has received that year.
The FHWA would assist States in finalizing the MCSAP budget request
by estimating the potential Incentive Funds available to them for the
upcoming fiscal year.
Compatibility
In addition to the annual regulatory review for compatibility of
State laws and regulations required to be submitted with the CVSP, the
FHWA is proposing to require a State to submit, within 30 days after
enactment, to the appropriate FHWA field office for review, a copy of
any law or regulation affecting CMV safety. The FHWA is also proposing
to eliminate the current tolerances in Appendix C, Paragraph 2(a)
related to hazardous materials enforcement. As of October 1, 1998, the
HMRs are applicable to transportation of hazardous materials by
highway, and departmental policy is to promote the full involvement of
State CMV safety enforcement resources in ensuring compliance with
these regulations. Therefore, all States will be required to achieve
full compatibility for both interstate and intrastate hazardous
materials transportation within three years after the effective date of
October 1, 1998.
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated at the beginning of this document will be
considered and will be available for examination in the docket at U.S.
DOT Dockets, room PL-401, 400 Seventh Street, SW., Washington, D.C.
20590-0001 or using the Department of Transportation Docket Management
System located at the Internet address http://dms.dot.gov. Comments
received after the comment closing date will be filed in the docket and
will be considered to the extent practicable. In addition to late
comments, the FHWA will also continue to file relevant information that
becomes available after the comment closing date in the docket.
Interested persons should continue to examine the docket for new
material. Nevertheless, the FHWA may issue a final rule at any time
after the close of the comment period.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this document does not constitute a
significant regulatory action for the purposes of Executive Order 12866
or a significant regulation under the regulatory policies and
procedures of the DOT. These proposed changes to the FMCSRs would not
cause an annual impact on the economy of over $100 million, and they
would not adversely affect a sector of the economy in a material way.
These changes would not create an inconsistency or otherwise interfere
with another agency's actions, nor do they raise novel legal or policy
issues. These changes merely implement a recently enacted legislative
mandate directing the FHWA to amend its regulations pertaining to the
MCSAP. This NPRM proposes to broaden the scope of the MCSAP beyond
enforcement activities and programs by requiring participating States
to assume greater responsibility for improving motor carrier safety. It
proposes to revise the MCSAP funding distribution formula, create a new
incentive funding program, and require States to develop performance-
based CMV safety plans. Thus, in light of this analysis, especially the
finding that the economic impact of this action is likely to be
minimal, the FHWA has determined that a full regulatory evaluation is
not required.
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. It is anticipated that this rulemaking will have little or a
non-significant impact upon small entities. The proposed changes merely
implement TEA-21 provisions pertaining to the MCSAP affecting only
States and local jurisdictions. This NPRM provides a process for making
high priority activity, border activity, and information system funds
available to local jurisdictions as well as MCSAP agencies. The basic
conditions being proposed for local agencies to qualify for these funds
are consistent with the conditions local agencies must follow now to
receive funds through the MCSAP agency. The number of local agencies
that would receive direct funding would be minimal since the FHWA would
provide grants directly to local agencies only where it is not possible
to work through the lead MCSAP agency. In all circumstances, the local
agencies would not be required to participate unless they found that it
was in their best interest. Therefore, the
[[Page 11423]]
FHWA hereby certifies that this proposed action will not have a
significant economic impact on a substantial number of small entities.
Unfunded Mandates Reform Act
This proposed rule would not impose a Federal mandate resulting in
the expenditure by State, local, and tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any one
year (2 U.S.C. 1532).
Executive Order 12612 (Federalism Assessment)
This action has been analyzed using the principles and criteria
contained in Executive Order 12612. The proposed changes would
implement TEA-21 provisions. The MCSAP is a grant-in-aid type program
whereby Federal financial assistance is provided to States. The basic
nature of the program and the level of total funding for the program
are not affected by these proposed changes. The proposed changes do not
limit the policy making discretion of the States. Therefore, this
rulemaking does not have sufficient Federalism implications to warrant
the preparation of a Federalism assessment.
Executive Order 12372 (Intergovernmental Review)
The regulations implementing Executive Order 12372 regarding
intergovernmental consultation on Federal programs and activities do
not apply to this program. Catalog of Federal Domestic Assistance
Program Number 20.217, Motor Carrier Safety.
Paperwork Reduction Act
This rulemaking does not impose new information collection
requirements. The only potential change to the existing information
collection requirement would be the number of affected parties. These
changes will be submitted to the Office of Management and Budget (OMB)
for approval in accordance with the Paperwork Reduction Act of 1995, 44
U.S.C. 3501-3520.
Title: Motor Carrier Safety Assistance Program (MCSAP).
OMB Number: 2125-0536.
Affected Public: State MCSAP lead agencies and local jurisdictions
seeking MCSAP funding.
Abstract: Sections 401-404 of the Surface Transportation Assistance
Act of 1982 (STAA) established a program of financial assistance to the
States' implementation of programs for the enforcement of (a) Federal
rules, regulations, standards, and orders applicable to commercial
motor vehicle safety and (b) compatible State rules, regulations,
standards, and orders. This grant-in-aid program is known as the Motor
Carrier Safety Assistance Program (MCSAP). The Intermodal Surface
Transportation Efficiency Act of 1991 (ISTEA) added programs, such as
drug interdiction, traffic enforcement, and size and weight activities
conducted in conjunction with CMV inspections to the core program
established by the STAA. Sections 4002 and 4003 of the Transportation
Equity Act for the 21st Century (TEA-21) further enhance the MCSAP by
increasing enforcement activities in key areas where the primary
responsibility for CMV enforcement falls upon local agencies. This NPRM
proposes to make special allocation grants for high priority activities
and projects or border activities available to local agencies in
addition to MCSAP State lead agencies. State and local jurisdictions
applying for the MCSAP are required to submit a Commercial Vehicle
Safety Plan, a certification that their laws and regulations are
compatible with the FMCSRs and HMRs, and periodic evaluations of their
program to the FHWA.
Need: This information is necessary to enable the FHWA to determine
whether a State or local agency meets the statutory and administrative
criteria to be eligible for a grant. It is necessary for activities and
accomplishments to be reported so that FHWA may monitor and evaluate an
agency's progress under its approved plan and make the determinations
and decisions required by 49 CFR 350.
Estimated Total Annual Burden: 14,498 hours.
Comments: Comments concerning the paperwork burden and burden hour
estimates in this proceeding may be directed to OMB and the FHWA,
respectively, by addressing them to: Office of Management and Budget,
Office of Information and Regulatory Affairs, Washington, DC 20503 and
Federal Highway Administration, Forms Clearance Officer Earl Coles
(HMS-12), Office of Information and Management Services, 400 Seventh
Street, SW., Washington, DC 20590.
National Environmental Policy Act
The agency has analyzed this action for purposes of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and it 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, Motor carriers,
Motor carrier safety.
Issued: February 24, 1999.
Kenneth R. Wykle,
Administrator, Federal Highway Administration.
In consideration of the foregoing, the FHWA amends title 49, Code
of Federal Regulations, chapter III, as follows:
1. Part 350 of chapter III of title 49, Code of Federal
Regulations, is revised to read as follows:
PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM
Subpart A--General
Sec.
350.101 What is the Motor Carrier Safety Assistance Program
(MCSAP)?
350.103 What is the purpose of this part?
350.105 Definitions used in this part.
350.107 What jurisdictions are eligible for MCSAP funding?
350.109 What are the national program elements?
350.111 What constitutes ``traffic enforcement'' for the purpose of
the MCSAP?
Subpart B--Requirements for Participation
350.201 What conditions must a State meet to qualify for Basic
Program Funds?
350.203 What happens to a participating State's Basic Program and
Incentive Funds if it adopts an incompatible law or regulation?
350.205 How and when does a State apply for MCSAP funding?
350.207 What response does a State receive to its CVSP submission?
350.209 How does a State demonstrate that it satisfies the
conditions for Basic Program funding?
350.211 What is the format of the certification required by
Sec. 350.209?
350.213 What must a State CVSP include?
350.215 What are the consequences of a State failing to perform
according to an approved CVSP or otherwise failing to meet the
conditions of this part?
Subpart C--Funding
350.301 What level of effort must a State maintain to qualify for
MCSAP funding?
350.303 What are the State and Federal shares of expenses incurred
under an approved CVSP?
[[Page 11424]]
350.305 Are U.S. Territories subject to the matching funds
requirement?
350.307 How long are MCSAP funds available to a State?
350.309 What activities are eligible for reimbursement under the
MCSAP?
350.311 What specific items are eligible for reimbursement under
the MCSAP?
350.313 How are MCSAP funds allocated?
350.315 How may Basic Program Funds be used?
350.317 What are Incentive Funds and how may they be used?
350.319 What are permissible uses of High Priority Activity Funds?
350.321 What are permissible uses of Border Activity Funds?
350.323 What criteria are used in the Basic Program Funds
allocation?
350.325 How is the performance factor determined?
350.327 How may States qualify for Incentive Funds?
350.329 How may a State or a local agency qualify for High Priority
or Border Activity Funds?
350.331 How does a State ensure its laws and regulations are
compatible with the FMCSRs and HMRs?
350.333 What are the guidelines for the compatibility review?
350.335 What are the consequences if my State has laws or
regulations incompatible with the Federal regulations?
350.337 How may State laws and regulations governing motor
carriers, CMV drivers, and CMVs in interstate commerce differ from
the FMCSRs and still be considered compatible?
350.339 What are tolerance guidelines?
350.341 What specific variances from State laws and regulations
governing motor carriers, CMV drivers and CMVs engaged exclusively
in intrastate commerce are allowed?
350.343 How may a State obtain a new exemption for State laws and
regulations for a specific industry involved exclusively in
intrastate commerce and not be subject to Federal jurisdiction?
350.345 How does a State apply for additional variances from the
tolerance guidelines?
Authority: 49 U.S.C. 31100-31104, 31108, 31136, 31140-31141,
31161, 31310-31311, 31502; and 49 CFR 1.48.
Subpart A--General
Sec. 350.101 What is the Motor Carrier Safety Assistance Program
(MCSAP)?
The MCSAP is a Federal grant program that provides financial
assistance to States to reduce the number and severity of crashes and
hazardous materials incidents involving commercial motor vehicles
(CMV). The goal of the MCSAP is to reduce CMV-involved crashes,
fatalities, and injuries through consistent, uniform, and effective CMV
safety programs. Investing grant monies in appropriate safety programs
will increase the likelihood that safety defects, driver deficiencies,
and unsafe motor carrier practices will be detected and corrected
before they become contributing factors to a crash. The MCSAP also sets
forth the conditions for participation by States and local
jurisdictions and promotes the adoption and enforcement of safety
rules, regulations, and standards compatible with the Federal Motor
Carrier Safety Regulations (FMCSRs) and Federal Hazardous Material
Regulations (HMRs).
Sec. 350.103 What is the purpose of this part?
The purpose of this part is to ensure the FHWA, States, and other
political jurisdictions work in partnership to establish programs to
improve motor carrier, CMV, and driver safety to support a safe and
efficient transportation system.
Sec. 350.105 Definitions used in this part.
Administration--means the Federal Highway Administration (FHWA).
Administrative Takedown Funds--funds deducted by the FHWA each
fiscal year from the amount made available for the MCSAP for expenses
incurred in the administration of the MCSAP, including expenses to
train State and local government employees and develop related training
materials.
Administrator--means the Federal Highway Administrator.
Basic Program Funds--means the total MCSAP funds less the High
Priority Activity, Border Activity, Administrative Takedown, and
Incentive Funds.
Border Activity Funds--funds provided to States, local governments,
and other persons carrying out programs, activities, and projects
relating to CMV vehicle safety and regulatory enforcement supporting
the North American Free Trade Agreement (NAFTA) at the U.S. border. Up
to 5 percent of total MCSAP funds are available for these activities.
Commercial Motor Vehicle (CMV)--means a motor vehicle that has any
of the following three characteristics:
(1) A gross vehicle weight (GVW), gross vehicle weight rating
(GVWR), gross combination weight (GCW), or gross combination weight
rating (GCWR) of 4,537 kilograms (10,001 pounds) or more.
(2) Regardless of weight, designed or used to transport 16 or more
passengers, including driver.
(3) Regardless of weight, used in the transportation of hazardous
materials and is required to be placarded under the HMRs (49 CFR Part
172, Subpart F).
Commercial Vehicle Safety Plan--The grant application document for
States seeking to participate in the Motor Carrier Safety Assistance
Program. The application must be approved by the Office of Motor
Carriers for States to qualify for MCSAP funds. The plan consists of an
assessment of the previous year's achievements, the State's projected
activities for the coming year, based upon identified problems, and
evaluation measures which allow the State to assess program outcomes.
It must also contain an itemized budget and a budget summary, and the
State's projected training plan for the new year. The CVSP must be
accompanied by a Certification of Compliance, and a copy of any new or
revised State law that bears on any item listed in the Certificate.
Compatible or Compatibility--means that State laws and regulations
applicable to interstate commerce and to intrastate movement of
hazardous materials are identical to the FMCSRs and HMRs. State laws
applicable to intrastate commerce are either identical to the FMCSRs or
fall within the established limited variances under Sec. 350.341 of
this part.
High Priority Activity Funds--funds provided to States, local
governments, and other persons carrying out activities and projects
that are of high priority and improve CMV safety and CMV safety
regulation compliance. Up to 5 percent of total MCSAP funds are
available for these activities.
Incentive Funds--funds awarded to States achieving reductions in
CMV involved fatal crashes, CMV crash rate, or meeting specified CMV
safety program performance criteria.
Motor Carrier--means a for-hire motor carrier or private motor
carrier. The term includes a motor carrier's agents, officers, or
representatives responsible for hiring, supervising, training,
assigning, or dispatching a driver or concerned with the installation,
inspection, and maintenance of motor vehicle equipment or accessories
or both.
North American Standard Inspection--The methodology used by State
CMV safety inspectors when they conduct safety inspections of CMVs.
This consists of various levels of inspection of the vehicle or driver
or both. The inspection criteria are developed by the Office of Motor
Carriers with the Commercial Vehicle Safety Alliance, an association of
States, Canadian Provinces, and Mexico whose members agree to adopt
these standards for inspecting commercial motor vehicles in their
jurisdiction.
Performance Factor--An adjustment to a State's annual Basic Program
Funds
[[Page 11425]]
based upon its CMV crash rate for the last full year for which data is
available.
Sec. 350.107 What jurisdictions are eligible for MCSAP funding?
All of the States, the District of Columbia, the Commonwealth of
Puerto Rico, the Commonwealth of the Northern Marianas, American Samoa,
Guam, and the Virgin Islands are eligible to receive MCSAP grants
directly from the FHWA. For purposes of this subpart, all references to
``State'' or ``States'' include these jurisdictions.
Sec. 350.109 What are the national program elements?
The national program elements include the following five
activities:
(a) driver/vehicle inspections;
(b) traffic enforcement;
(c) compliance reviews;
(d) public education and awareness; and
(e) data collection.
Sec. 350.111 What constitutes ``traffic enforcement'' for the purpose
of the MCSAP?
Traffic enforcement means those activities carried out by duly
authorized State or local enforcement officials which include stopping
CMVs operating on highways, streets, or roads after having been
detected as being in violation of State or local motor vehicle or
traffic laws (e.g., speeding, following too closely, reckless driving,
improper lane change). To be eligible for funding through the grant,
the enforcement official must conduct an inspection of the CMV or
driver or both prior to releasing the driver or CMV or both for
resumption of operations.
Subpart B--Requirements for Participation
Sec. 350.201 What conditions must a State meet to qualify for Basic
Program Funds?
Your State must meet the following twenty-two conditions:
(a) Assume responsibility for improving motor carrier safety and
adopting and enforcing State safety laws and regulations that are
compatible with the FMCSRs and HMRs.
(b) Implement a performance-based program by the beginning of
Fiscal Year 2000 and submit a CVSP which will serve as the basis for
monitoring and evaluating your State's performance.
(c) Designate in its certification the lead State agency
responsible for implementing the CVSP.
(d) Ensure that only agencies having the legal authority,
resources, and qualified personnel necessary to enforce the FMCSRs and
HMRs or compatible State laws or regulations are assigned to perform
functions in accordance with the approved CVSP.
(e) Allocate adequate funds for the administration of the CVSP
which includes the enforcement of the FMCSRs, HMRs, or compatible State
laws or regulations.
(f) Maintain the aggregate expenditure of funds by the State and
its political subdivisions, exclusive of Federal funds, for CMV safety
programs and related programs eligible for funding under this part at a
level at least equal to the average expenditure for its last three full
Federal or State fiscal years before December 18, 1991.
(g) Provide legal authority for a right of entry and inspection
adequate to carry out the CVSP.
(h) Prepare and submit, upon request, all reports as required in
connection with the CVSP or other conditions of the grant to the FHWA.
(i) Adopt uniform reporting requirements and use uniform forms to
record work activities performed under the CVSP as may be established
and required by the FHWA.
(j) Require registrants of CMVs to declare, at the time of
registration, their knowledge of applicable FMCSRs, HMRs, or compatible
State laws or regulations.
(k) Grant maximum reciprocity for inspections conducted under the
North American Standard Inspection through the use of a nationally
accepted system that allows ready identification of previously
inspected CMVs.
(l) Conduct CMV size and weight enforcement activities funded under
this program only to the extent those activities do not diminish the
effectiveness of other CMV safety enforcement programs.
(m) Coordinate the CVSP, data collection and information systems
with State highway safety programs under title 23, U.S.C.
(n) Ensure participation in SAFETYNET and other information systems
by all appropriate jurisdictions receiving funding under this section.
(o) Ensure information is exchanged with other States in a timely
manner.
(p) Emphasize and improve enforcement of State and local traffic
laws and regulations related to CMV safety.
(q) Promote activities in support of national priorities and
performance goals, including the following three activities:
(1) Activities aimed at removing impaired CMV drivers from the
highways through adequate enforcement of restrictions on the use of
alcohol and controlled substances and by ensuring ready roadside access
to alcohol detection and measuring equipment.
(2) Activities aimed at providing an appropriate level of training
to MCSAP personnel to recognize drivers impaired by alcohol or
controlled substances.
(3) Interdiction activities affecting the transportation of
controlled substances by CMV drivers and training on appropriate
strategies for carrying out those interdiction activities.
(r) Enforce requirements relating to the licensing of CMV drivers,
including checking the status of commercial driver's licenses.
(s) Require the proper and timely correction of CMV safety
violations noted during inspections carried out with MCSAP funds.
(t) Enforce registration and financial responsibility requirements
of 49 U.S.C. 31138 and 31139.
(u) Adopt and maintain consistent, effective, and reasonable
sanctions for violations of CMV, driver, and hazardous materials
regulations.
(v) Conduct roadside inspections at locations that are adequate to
protect the safety of drivers and enforcement personnel.
Sec. 350.203 What happens to a participating State's Basic Program and
Incentive Funds if it adopts an incompatible law or regulation?
A State that currently has compatible laws and regulations
pertaining to interstate and intrastate CMV safety but adopts a law or
regulation which results in an incompatible rule (i.e., neither
identical to the FMCSRs or within the tolerance guidelines), would not
be eligible for Basic Program Funds or Incentive Funds.
Sec. 350.205 How and when does a State apply for MCSAP funding?
(a) The lead agency, designated by the Governor, must submit your
State's CVSP to the State Director, Office of Motor Carriers (OMC),
FHWA, on or before August 1 of each year.
(b) This deadline may, for good cause, be extended by the OMC State
Director for a period not to exceed 30 calendar days.
(c) For a State to receive funding, the CVSP must be complete and
include all required documents.
Sec. 350.207 What response does a State receive to its CVSP
submission?
(a) The FHWA will notify your State, in writing, within 30 days of
receipt of the CVSP whether:
(1) The plan is approved.
(2) Approval of the plan is withheld because the CVSP does not meet
the requirements of this part, or is not adequate to ensure effective
enforcement of the FMCSRs and HMRs
[[Page 11426]]
or compatible State laws and regulations.
(b) If approval is withheld, your State will then have 30 days from
the date of the notice to modify and resubmit the plan.
(c) Disapproval of a resubmitted plan is final.
Sec. 350.209 How does a State demonstrate that it satisfies the
conditions for Basic Program funding?
(a) The Governor, the State's Attorney General, or other State
official specifically designated by the Governor, must submit a
certification that the State is in compliance the requirements of
Sec. 350.201 of this part.
(b) Your State must submit the certification along with its CVSP,
and supplement it with a copy of any State law, regulation, or form
pertaining to CMV safety adopted since the State's last certification,
if any, that bears on the items contained in Sec. 350.201 of this part.
Sec. 350.211 What is the format of the certification required by
Sec. 350.209?
Your State's certification must be consistent with the following
content: I (name), (title), on behalf of the State (Commonwealth) of
(State), as requested by the Federal Highway Administrator as a
condition of approval of a grant under the authority of 49 U.S.C. 31102
as amended, do hereby certify as follows:
1. The State has adopted commercial motor carrier and highway
hazardous materials safety rules and regulations that are compatible
with the FMCSRs and the HMRs.
2. The State has designated (name of State CMV safety agency) as
the lead agency to administer the CVSP for the grant sought and (names
of agencies) to perform defined functions under the plan. These
agencies have the legal authority, resources, and qualified personnel
necessary to enforce the State's commercial motor carrier, driver, and
highway hazardous materials safety laws or regulations.
3. The State will obligate the funds or resources necessary to
provide a matching share to the Federal assistance provided in the
grant to administer the plan submitted and to enforce the State's
commercial motor carrier safety, driver, and hazardous materials laws
or regulations in a manner consistent with the approved plan.
4. The laws of the State provide the State's enforcement officials
right of entry and inspection sufficient to carry out the purposes of
the CVSP, as approved, and provide that the State will grant maximum
reciprocity for inspections conducted pursuant to the North American
Inspection Standard, through the use of a nationally accepted system
allowing ready identification of previously inspected CMVs.
5. The State requires that all reports relating to the program be
submitted to the appropriate State agency or agencies, and the State
will make these reports available, in a timely manner, to the FHWA on
request.
6. The State has uniform reporting requirements and uses FHWA
designated forms for record keeping, inspection, and other enforcement
activities.
7. The State has in effect a requirement that registrants of CMVs
declare their knowledge of the applicable Federal or State CMV safety
laws or regulations.
8. The State will maintain the level of its expenditures, exclusive
of Federal assistance, at least at the level of the average of the
aggregate expenditures of the State and its political subdivisions
during the past three full State or Federal fiscal years immediately
before December 18, 1991. These expenditures must cover at least the
following four program areas, if applicable:
a. Motor carrier safety programs in accordance with Sec. 350.301,
b. Size and weight enforcement programs,
c. Traffic safety, and
d. Drug interdiction enforcement programs
9. The State will ensure that violation fines imposed and collected
by the State are consistent, effective, and equitable.
10. The State will ensure timely and proper correction of
violations discovered during inspections conducted using MCSAP funds.
11. The State will ensure that the CVSP is coordinated with the
State highway safety plan under 23 U.S.C. 402. The name of the
Governor's highway safety representative (or other authorized State
official through whom coordination was accomplished) is (Name) .
12. The State has participated in SAFETYNET since (Date) .
13. The State has undertaken efforts to emphasize and improve
enforcement of State and local traffic laws as they pertain to CMV
safety.
14. The State will ensure that roadside inspections will be
conducted at a location that is adequate to protect the safety of
drivers and enforcement personnel.
Date
---------------------------------------------------------------------
Signature
---------------------------------------------------------------------
Sec. 350.213 What must a State CVSP include?
Your State's CVSP must reflect a performance-based program, and
contain the following thirteen items:
(a) A statement of the State agency goal or mission.
(b) A comprehensive evaluation of the effectiveness of the prior
years' activities in reducing CMV accidents, injuries and fatalities,
and improving driver and motor carrier safety performance. Evaluation
data should measure program progress in one-year increments. This may
be calendar year or fiscal year or any other 12-month period of time
chosen by the State. The evaluation should show trends supported by
safety and program performance data collected over several years. It
should identify safety or performance problems in the State and those
problems should be addressed in the new or modified CVSP.
(c) A brief narrative describing how the State program addresses
the national program elements listed in Sec. 350.109. The plan should
address these elements even if there are no planned activities in one
of the program areas. The rationale for the resource allocation
decision should be explained.
(d) A definitive problem statement for each objective which is
supported by data or other information. The CVSP must identify the
source of the data, and who is responsible for its collection,
maintenance, and analysis.
(e) Performance objectives, stated in quantifiable terms, to be
achieved through the State plan. Objectives should include a measurable
reduction in highway accidents or hazardous materials incidents
involving CMVs. The objective may also include documented improvements
in other program areas (e.g., legislative or regulatory authority,
enforcement results, or resource allocations).
(f) Strategies to be employed to achieve performance objectives.
Strategies may include driver/vehicle roadside inspections, compliance
reviews, training, public or industry outreach, drug or alcohol
enforcement, CDL activities, or use of technology used to address
identified problems and stated objectives to improve CMV safety.
(g) Specific activities intended to achieve the stated strategies
and objectives. This item should also describe what resources will be
used in carrying out each activity and should be related to preparation
of the CVSP budget for the State. Planned activities must be eligible
under this program as defined in Sec. 350.309.
(h) Specify quantifiable performance measures, as appropriate.
These
[[Page 11427]]
performance measures will be used to assist the State in monitoring the
progress of its program and preparing an annual evaluation.
(i) A description of the State's method for ongoing monitoring of
the progress of its plan. This should include who will conduct the
monitoring, the frequency with which it will be carried out, and how
and to whom reports will be made.
(j) A budget supported by the CVSP describing the expenditures for
allocable costs such as personnel and related costs, equipment
purchases, printing, information systems costs, and other eligible
costs consistent with Sec. 350.311.
(k) A budget summary including planned expenditures for that fiscal
year in each national program area.
(l) The results of the annual review to determine the compatibility
of State laws and regulations with the FMCSRs and HMRs.
(m) A copy of any new law or regulation affecting CMV safety
enforcement that was enacted by the State since the last CVSP was
submitted.
Sec. 350.215 What are the consequences of a State failing to perform
according to an approved CVSP or otherwise failing to meet the
conditions of this part?
(a) If your State is not performing according to an approved plan
or not adequately meeting conditions under Sec. 350.201, the
Administrator may issue a written notice of proposed determination of
nonconformity to the Governor of the State or the official designated
in the plan. The notice will set forth the reasons for the proposed
determination.
(b) Your State will then have 30 days from the date of the notice
to reply. Your reply must address the deficiencies or incompatible
situation cited in the notice and provide documentation as necessary.
(c) Based upon your State's reply, the Administrator will make a
final decision.
(d) In the event your State fails to reply to a notice of proposed
determination of nonconformity in accordance with the provisions of
paragraph (b) of this section, the proposed determination becomes the
Administrator's final decision.
(e) Any adverse decision will result in immediate cessation of
Federal funding under this part.
(f) Any State aggrieved by an adverse decision under this section
may seek judicial review under 5 U.S.C. chapter 7.
Subpart C--Funding
Sec. 350.301 What level of effort must a State maintain to qualify for
MCSAP funding?
(a) Your State must maintain the average aggregate expenditure
(monies spent during the base period of the three full Federal or State
fiscal years before December 18, 1991) of State funds for motor carrier
and highway hazardous materials safety enforcement purposes, in the
year in which the grant is sought.
(b) Your State may use either the Federal or State Fiscal years.
(c) In determining the State's maintenance of effort, you should
not include:
(1) Federal funds received for support of motor carrier and
hazardous materials safety enforcement,
(2) State matching funds, or
(3) State funds used for federally sponsored demonstration or pilot
CMV safety programs.
(d) You must include costs associated with activities performed
during the base period by State or local agencies currently receiving
or projected to receive funds under this Part. You must include only
those activities which meet the current requirements for funding
eligibility under the grant program.
Sec. 350.303 What are the State and Federal shares of expenses
incurred under an approved CVSP?
(a) The FHWA will reimburse up to 80 percent of the eligible costs
incurred in the administration of an approved CVSP.
(b) In-kind contributions are acceptable in meeting your State's
matching share if they represent eligible costs as established by 49
CFR Part 18 or agency policy.
Sec. 350.305 Are U.S. Territories subject to the matching funds
requirement?
The Administrator waives the requirement for matching funds for the
Virgin Islands, American Samoa, Guam, and the Commonwealth of the
Northern Marianas.
Sec. 350.307 How long are MCSAP funds available to a State?
The funds obligated to a State will remain available for the rest
of the fiscal year in which they were obligated and the next full
fiscal year. The State must account for any prior year's unexpended
funds in the annual CVSP. Funds must be expended in the order in which
they are obligated.
Sec. 350.309 What activities are eligible for reimbursement under the
MCSAP?
The primary activities eligible for reimbursement are:
(a) The five national program elements contained in Sec. 350.109 of
this part.
(b) Sanitary food transportation inspections performed under 49
U.S.C. 5708.
(c) The following three activities, when accompanied by an
appropriate inspection and inspection report:
(1) Enforcement of size and weight regulations conducted at
locations other than fixed scales (i.e., specific geographic locations
where the weight of the vehicle can significantly affect the safe
operation of the vehicle, or seaports where intermodal shipping
containers enter and exit the United States).
(2) Detection of the unlawful presence of controlled substances in
a CMV or on the driver or any occupant of a CMV.
(3) Enforcement of State traffic laws and regulations designed to
promote the safe operation of CMVs.
Sec. 350.311 What specific items are eligible for reimbursement under
the MCSAP?
All reimbursable items must be necessary, reasonable, allocable to
the approved CVSP, and allowable under this part and 49 CFR Part 18,
Uniform Administrative Requirements for Grants and Cooperative
Agreements to State and Local Governments. The eligibility of specific
items is subject to review by the FHWA. The following six types of
expenses are eligible for reimbursement:
(a) Personnel expense, including recruitment and screening,
training, salaries and fringe benefits, and supervision.
(b) Equipment and travel expenses, including per diem, directly
related to the enforcement of safety regulations, including vehicles,
uniforms, communications equipment, special inspection equipment,
vehicle maintenance, fuel, and oil.
(c) Indirect expenses for facilities, except fixed scales, used to
conduct inspections or house enforcement personnel, support staff, and
equipment to the extent they are measurable and recurring (e.g., rent
and overhead).
(d) Expenses related to data acquisition, storage, and analysis
specifically identifiable as program related to develop a data base to
coordinate resources and improve efficiency.
(e) Clerical and administrative expenses, to the extent necessary
and directly attributable to the MCSAP.
(f) Expenses related to the improvement of real property (e.g.,
installation of lights for the inspection of vehicles at night, minor
modifications to existing structures). Acquisition of real property,
land, or buildings are not eligible costs.
[[Page 11428]]
Sec. 350.313 How are MCSAP funds allocated?
(a) After deducting administrative expenses authorized in 49 U.S.C.
31104(e), the MCSAP funds are allocated as follows:
(1) Up to 5 percent of the MCSAP funds for each Fiscal Year may be
distributed for High Priority Activities and Projects at the discretion
of the Administrator.
(2) Up to 5 percent of the MCSAP funds for each Fiscal Year may be
distributed for Border CMV Safety and Enforcement Programs at the
discretion of the Administrator.
(3) The remaining funds will be allocated among qualifying States
in two ways:
(i) As Basic Program Funds in accordance with Sec. 350.313 of this
part,
(ii) as Incentive Funds in accordance with Sec. 350.313 of this
part.
(4) The Basic Program Funds allocation may be subject to a
performance factor, as provided in Sec. 350.325 of this part.
(b) The funding provided in paragraphs (a)(1) and (a)(2) of this
section may be awarded through contract, cooperative agreement, or
grant. Local jurisdictions may qualify to participate in these
programs. The FHWA will annually notify States if it intends to solicit
State grant proposals for any portion of this funding.
(c) The funding provided under paragraphs (a)(1) and (a)(2) of this
section may be made available to State agencies, local governments, and
other persons that use and train qualified officers and employees in
coordination with State Motor Vehicle Safety agencies.
(d) Table 1 of this section describes the distribution of MCSAP
funds, as follows:
Table 1 of Sec. 360.313(D).--MCSAP Funds Distribution
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fiscal year 2000 Percent 2001 Percent 2002 Percent 2003 Percent
--------------------------------------------------------------------------------------------------------------------------------------------------------
Total MCSAP funds........................... $95,000,000 ........ $100,000,000 .......... $105,000,000 ........ $110,000,000 .........
Administrative takedown..................... 1,187,500 ........ 1,250,000 .......... 1,312,500 ........ 1,375,000
High priority activities.................... 4,750,000 ........ 5,000,000 .......... 5,250,000 ........ 5,500,000
Border activities........................... 4,750,000 ........ 5,000,000 .......... 5,250,000 ........ 5,500,000
Basic program funds......................... 75,881,250 90 75,437,500 85 74,550,000 80 73,218,750 75
Incentive funds............................. 8,431,250 10 13,312,500 15 18,637,500 20 24,406,250 25
--------------------------------------------------------------------------------------------------------------------------------------------------------
Sec. 350.315 How may Basic Program Funds be used?
Basic Program Funds may be used for any eligible activity
consistent with Sec. 350.309 of this part.
Sec. 350.317 What are Incentive Funds and how may they be used?
Incentive Funds are monies, in addition to Basic Program Funds,
provided to the States that achieve reduction in CMV-involved fatal
crashes, CMV crash rate, or that meet specified CMV safety performance
criteria. Incentive Funds may be used for any eligible activity
consistent with Sec. 350.309 of this part.
Sec. 350.319 What are permissible uses of High Priority Activity
Funds?
(a) The FHWA may generally use these funds to support, enrich, or
evaluate State CMV safety programs and to accomplish the five
objectives listed below:
(1) Implement, promote, and maintain national programs to improve
CMV safety.
(2) Increase compliance with CMV safety regulations.
(3) Increase public awareness about CMV safety.
(4) Provide education on CMV safety and related issues.
(5) Demonstrate new safety related technologies.
(b) These funds will be allocated, at the discretion of the FHWA,
to States, local governments, and other organizations that use and
train qualified officers and employees in coordination with State
safety agencies.
(c) The FHWA will notify the States when such funds are available.
(d) The Administrator may designate up to 5 percent of the annual
MCSAP funding for these projects and activities.
Sec. 350.321 What are permissible uses of Border Activity Funds?
The FHWA may generally use such funds to develop and implement a
national program addressing CMV safety and enforcement activities along
the United States' borders.
These funds will be allocated, at the discretion of the FHWA, to
States, local governments, and other organizations that use and train
qualified officials and employees in coordination with State safety
agencies. The FHWA will notify the States when such funds are
available. The Administrator may designate up to 5 percent of the
annual MCSAP funding for these projects and activities.
Sec. 350.323 What criteria are used in the Basic Program Funds
allocation?
(a) The funds are distributed proportionally to the States using
the following four, equally weighted (25 percent), factors.
(1) Road miles (all highways).
(2) All vehicle miles traveled (AVMT).
(3) Population--annual census estimates as issued by the U.S.
Census Bureau.
(4) Special fuel consumption (net after reciprocity adjustment) as
collected by the FHWA.
(b) Distribution of Basic Program Funds is subject to a maximum and
minimum allocation as illustrated in Table 2 to this section, as
follows:
Table 2 of Sec. 350.323(B).--Basic Program Fund Allocation Limitations
------------------------------------------------------------------------
Recipient Maximum allocation Minimum allocation
------------------------------------------------------------------------
States and Puerto Rico...... 4.944% of the Basic $350,000 or 0.44% of
Program Funds. Basic Program
Funds, whichever is
greater.
U.S. Territories............ $250,000 (fixed amount)
------------------------------------------------------------------------
[[Page 11429]]
Sec. 350.325 How is the performance factor determined?
(a) The performance factor is determined by calculating the ratio
of fatal crashes in your State involving large trucks as compiled by
the Fatal Analysis Reporting System (FARS) administered by the National
Highway Traffic Safety Administration (NHTSA), and population estimates
in your State as reported annually by the U.S. Census Bureau. This
ratio is known as the ``crash rate.'' The performance factor adjustment
is calculated using the crash rate as follows:
(1) For each State, an average crash rate is computed for the 10-
calendar-year period prior to the previous full calendar year or the
most recent year that data are available.
(2) If the crash rate for the most recent calendar year for which
data is available exceeds the 10-year average crash rate, the State's
allocation will be reduced by the amount the crash rate increased. The
maximum reduction cannot exceed 1 percent.
(3) If the crash rate continues to be above the 10-year average
crash rate, in subsequent consecutive years, the maximum forfeiture
will increase by up to 1 percent each year.
(4) If the State's most current crash rate is not above the 10-year
average crash rate, there will be no reduction.
(b) The funds withheld from States because of the performance
adjustment will be redistributed equally among those States showing a
crash rate improvement.
Sec. 350.327 How may States qualify for Incentive Funds?
(a) Your State may qualify for Incentive Funds if it can
demonstrate that its CMV safety program has shown improvement in any or
all of the following five categories:
(1) Reduction of CMV-involved fatal crashes.
(2) Reduction of CMV-involved crash rate.
(3) Upload CMV crash data within FHWA policy guidelines.
(4) Verification, during the roadside inspection process, of the
status and validity of all CDLs through CDLIS, NLETS, or the State
licensing authority.
(5) Upload of CMV inspection data within FHWA policy guidelines.
(b) Incentive Funds will be distributed based upon the following
five safety and program performance factors:
(1) The number of CMV-involved fatal crashes for the most recent
calendar year for which data are available is compared to the 10-year
average number of CMV fatal crashes ending with the preceding year. The
number of CMV-involved fatal crashes, as reported to FARS, will be
computed for the 10-year average. Five shares will be awarded for any
reduction.
(2) The crash rate for the most recent calendar year for which data
are available is compared to the average 10-year crash rate. Four
shares will be awarded for any reduction.
(3) Three shares will be awarded States that upload CMV crash
reports within FHWA policy guidelines.
(4) Two shares will be awarded States that certify that all CDLs
are verified, as part of the inspection process, through CDLIS, NLETS,
or the State licensing authority.
(5) One share will be awarded States that upload CMV inspection
reports within FHWA policy guidelines.
(c) The total of all States' shares will be divided into the dollar
amount of Incentive Funds available, thereby establishing the value of
one share. Each State's incentive allocation will then be determined by
the number of shares it has that year, multiplied by the dollar value
of one share.
(d) States may use Incentive Funds for any eligible CMV safety
purpose.
(e) Incentive Funds are subject to the same State matching
requirements as Basic Program Funds.
(f) A State must annually certify compliance with the applicable
incentive criteria to receive Incentive Funds.
(g) A State may submit the required certification as part of its
CVSP or separately.
Sec. 350.329 How may a State or a local agency qualify for High
Priority or Border Activity Funds?
(a) States must meet the requirements of Sec. 350.201 of this part;
(b) Local agencies must meet the following nine conditions:
(1) Prepare a proposal in accordance with Sec. 350.201 of this
part.
(2) Coordinate the proposal with the State lead MCSAP agency to
ensure the proposal is consistent with State and national CMV safety
program priorities.
(3) Certify your local jurisdiction has the legal authority,
resources, and trained and qualified personnel necessary to accomplish
the following three activities:
(i) Enforce the FMCSR's or HMR's.
(ii) Enforce compatible State regulations.
(iii) Implement a special grant activity.
(4) Designate a person who will be responsible for implementation,
reporting, and administering the approved proposal and will be the
primary contact for the project.
(5) Agree to fund up to 20 percent of the proposed request.
(6) Agree to prepare and submit all reports required in connection
with the proposal or other conditions of the grant.
(7) Agree to use the forms and reporting criteria required by the
State lead MCSAP agency and/or the FHWA to record work activities to be
performed under proposal.
(8) Certify effective and equitable sanctions for violations of CMV
and driver laws and regulations that are consistent with those of the
State.
(9) Certify participation in national data bases appropriate to the
project.
Sec. 350.331 How does a State ensure its laws and regulations are
compatible with the FMCSRs and HMRs?
(a) Your State must review any new law or regulation enacted, or
any proposed law or regulation affecting CMV safety as soon as
possible, but in any event immediately after enactment or issuance, for
compatibility with the FMCSRs and HMRs.
(b) If your review determines that the new law or regulation is
incompatible with the FMCSRs and/or HMRs, you must immediately notify
the OMC State Director.
(c) Your State must conduct an annual review of its laws and
regulations for compatibility and report the results of that review as
a part of the annual CVSP in accordance with Sec. 350.209(b) of this
part with a certification of compliance, no later than August 1 of each
year. The report must include the following two items:
(1) A copy of your State law, regulation, or policy relating to CMV
safety that was adopted since your State's last report.
(2) A certification, executed by your State's Governor, Attorney
General, or other State official specifically designated by the
Governor, stating that the annual review was performed and that State
CMV safety laws remain compatible with the FMCSRs and HMRs. If State
CMV laws are no longer compatible, the certifying official shall
explain why not.
(d) As soon as practical after the effective date of any amendment
to the FMCSRs or HMRs, but no later than three years after that date,
your State must amend its laws or regulations to make them compatible
with the FMCSRs and/or HMRs, as amended.
Sec. 350.333 What are the guidelines for the compatibility review?
(a) The law or regulation must apply to all segments of the motor
carrier industry (i.e., for-hire and private motor carriers of property
and passengers).
[[Page 11430]]
(b) Laws and regulations reviewed for the CDL compliance report are
excluded from the compatibility review.
(c) Definitions of words or terms must be consistent with those in
the FMCSRs and HMRs.
(d) Your State must identify any law or regulation that is not the
same as the corresponding Federal regulation and evaluate it in
accordance with Table 3 to this section, as follows:
Table 3 to Sec. 350.333.--Guidelines for the State Law and Regulation Compatibility Review
----------------------------------------------------------------------------------------------------------------
Law or regulation has same effect Applies to
as corresponding Federal interstate or Less stringent or Action authorized
regulation intrastate commerce more stringent
----------------------------------------------------------------------------------------------------------------
Yes.............................. .................... ................... Compatible--Interstate and
intrastate commerce enforcement
authorized.
No............................... Intrastate.......... ................... Refer to Sec. 350.341.
No............................... Interstate.......... Less stringent..... Enforcement prohibited.
No............................... Interstate.......... More stringent..... Enforcement authorized if the
State can demonstrate the law or
regulation has a safety benefit
or does not create an undue
burden upon interstate commerce.
----------------------------------------------------------------------------------------------------------------
Sec. 350.335 What are the consequences if my State has laws or
regulations incompatible with the Federal regulations?
(a) Upon a finding by the FHWA, based upon its own initiative or
upon a petition of any person, including any State, that your State
law, regulation or enforcement practice pertaining to CMV safety, in
either interstate or intrastate commerce, is incompatible with the
FMCSRs or HMRs, the FHWA may initiate a proceeding under Sec. 350.215
of this part for withdrawal of your State's funding.
(b) Any decision regarding the compatibility of your State law or
regulation with the HMRs that requires an interpretation will be
referred to the Research and Special Programs Administration of the DOT
for such interpretation before proceeding under Sec. 350.215 of this
part.
Sec. 350.337 How may State laws and regulations governing motor
carriers, CMV drivers, and CMVs in interstate commerce differ from the
FMCSRs and still be considered compatible?
All State laws and regulations governing motor carriers, CMV
drivers, and CMVs may only vary from the Federal requirements applying
to the transportation of migrant workers under Part 398 of this
subchapter and still be considered compatible for purposes of MCSAP
funding.
Sec. 350.339 What are tolerance guidelines?
Tolerance guidelines set forth the limited deviations from the
FMCSRs allowed in your State's laws and regulations. These variances
apply only to motor carriers, CMV drivers and CMVs engaged exclusively
in intrastate commerce and not subject to Federal jurisdiction.
Sec. 350.341 What specific variances from State laws and regulations
governing motor carriers, CMV drivers, and CMVs engaged exclusively in
intrastate commerce are allowed?
(a) A State may exempt from all or part of their regulations CMVs
with a GVW, GVWR, or GCWR less than 11,801 kg (26,001 lbs.) and engaged
exclusively in intrastate commerce unless the vehicle meets either of
the following two conditions:
(1) Transports hazardous materials requiring a placard.
(2) Is designed or used to transport 16 or more people including
the driver.
(b) State laws and regulations may not grant exceptions or
exemptions based upon the type of transportation being performed.
(c) A State may retain those exceptions and exemptions from their
motor carrier safety laws and regulations that were in effect before
April 1988, are still in effect, and apply to specific industries
operating exclusively in intrastate commerce.
(d) State laws and regulations must not include exemptions based
upon the distance a motor carrier or driver operates from the work
reporting location. This prohibition does not apply to those exemptions
already contained in the FMCSRs nor to the extension of the mileage
radius exemption, contained in 49 CFR 395.1(e), from 100 to 150 miles.
(e) Hours of service--State hours-of-service limitations applied to
intrastate transportation may vary to the following extent:
(1) A 12-hour driving limit, provided driving a CMV after having
been on duty more than 16 hours is prohibited.
(2) Driving prohibitions for drivers who have been on duty 70 hours
in 7 consecutive days or 80 hours in 8 consecutive days.
(f) Age of CMV driver--All CMV drivers must be at least 18 years
old.
(g) Grandfather clauses--States may provide grandfather clauses in
their rules and regulations if such exemptions are uniform or in
substantial harmony with the FMCSRs.
(h) Driver qualifications:
(1) Drivers who do not meet the physical qualification standards in
Sec. 391.41 of this subchapter may continue to be qualified to operate
a CMV in intrastate commerce if the following three conditions are met:
(i) The driver was qualified under existing State law or regulation
at the time the State adopted physical qualification standards
compatible with the Federal standards in 49 CFR 391.41.
(ii) The otherwise non-qualifying medical or physical condition has
not substantially worsened.
(iii) No other non-qualifying medical or physical condition has
developed.
(2) The State may adopt or continue programs granting waivers to
drivers with medical or physical conditions that would otherwise be
non-qualifying under the State's equivalent of 49 CFR 391.41 if the
waivers are based upon sound medical judgment combined with appropriate
performance standards ensuring no adverse impact on safety.
Sec. 350.343 How may a State obtain a new exemption for State laws and
regulations for a specific industry involved exclusively in intrastate
commerce and not be subject to Federal jurisdiction?
The FHWA strongly discourages exemptions and exceptions for
specific industries, but will consider such requests if the State
submits documentation containing information supporting evaluation of
the following 10 factors:
(a) Type and scope of the industry exception requested, including
percentage of industry affected, number
[[Page 11431]]
of vehicles, mileage traveled, number of companies involved.
(b) Type and scope of the requirement to which the exception or
exemption would apply.
(c) Safety performance of that specific industry (e.g., accident
frequency, rates and comparative figures).
(d) Inspection information (e.g., number of violations per
inspection, driver and vehicle out-of-service information).
(e) Other CMV safety regulations enforced by other State agencies
not participating in the MCSAP.
(f) Commodity transported (e.g., livestock, grain).
(g) Similar variations granted and the circumstances under which
they were granted.
(h) Justification for the exception or exemption.
(i) Identifiable effects on safety.
(j) State's economic environment and its ability to compete in
foreign and domestic markets.
Sec. 350.345 How does a State apply for additional variances from the
tolerance guidelines?
Any State may apply to the FHWA Administrator for a variance from
the tolerance guidelines. The variance will be granted only if the
State satisfactorily demonstrates that the State law, regulation or
enforcement practice:
(a) Achieves substantially the same purpose as the similar Federal
regulation,
(b) Does not apply to interstate commerce, and
(c) Is not likely to have an adverse impact on safety.
[FR Doc. 99-5682 Filed 3-8-99; 8:45 am]
BILLING CODE 4910-22-P
