[Federal Register: June 30, 2004 (Volume 69, Number 125)]
[Rules and Regulations]
[Page 39350-39372]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30jn04-7]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 386, and 390
[Docket No. FMCSA-97-2180]
RIN 2126-AA07
Federal Motor Carrier Safety Regulations: Hazardous Materials
Safety Permits
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: The Federal Motor Carrier Safety Administration is
establishing a national safety permit program for motor carriers that
transport certain hazardous materials in interstate or intrastate
commerce. This final rule implements provisions of Federal hazardous
materials transportation law. The rule will promote safe and secure
transportation of the designated hazardous materials and thereby
improve motor carrier safety.
DATES: Effective: This rule is effective: July 30, 2004. Compliance:
Compliance with this rule is required beginning January 1, 2005. The
publication incorporated by reference in this final rule is approved by
the Director of the Federal Register as of July 30, 2004.
FOR FURTHER INFORMATION CONTACT: Mr. Michael Johnsen, (202) 366-4111,
Hazardous Materials Division, Federal Motor Carrier Safety
Administration, U.S. Department of Transportation, 400 7th Street, SW.,
Washington, DC 20590-0001. Office hours are from 7:45 a.m. to 4:15
p.m., EST, Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
List of Topics
I. Background
II. Summary of Final Rule
III. Analysis of Comments
A. General Comments
B. Preemption of State Programs
C. Qualification Based on State Permits
D. List of Materials (Applicability)
E. Duplication of Other Agency Programs
F. Obtaining a Safety Rating
G. Pre-Trip Inspections
H. Route Plans
I. Communications Plans
J. Permit Documentation
K. Enforcement
L. Cost-Benefit Analysis
IV. Rulemaking Analyses and Notices
I. Background
Federal hazardous materials transportation law, 49 U.S.C. 5101 et
seq., was enacted ``to provide adequate protection against the risks to
life and property inherent in the transportation of hazardous material
in commerce.'' The Federal Motor Carrier Safety Administration (FMCSA),
formerly part of the Federal Highway Administration (FHWA), is
responsible for implementing certain provisions of this law, including
Sec. 5105(e), Inspections of motor vehicles transporting certain
material; Sec. 5109, Motor carrier safety permits; and Sec. 5119,
Uniform forms and procedures.
Section 5109 requires the U.S. Department of Transportation (DOT)
to issue regulations for safety permits for transporting certain
hazardous materials. A motor carrier must hold a safety permit issued
by DOT and keep a copy of the permit or other proof of its existence in
the vehicle, in order to transport certain hazardous materials in
commerce or cause such materials to be transported in commerce by motor
vehicle (49 U.S.C. 5109(a)).
FHWA published three notices in the 1990s to enact a permitting
rule. FHWA's notice of proposed rulemaking (NPRM) of June 17, 1993 (58
FR 33418) was followed by notices in 1996 (61 FR 36016, Jul. 9, 1996)
and 1998 (63 FR 15362, Mar. 31, 1998) addressing the role of States in
implementing a unified permitting program State by State. FHWA's June
1993 NPRM formed the basis of a supplemental notice of proposed
rulemaking (SNPRM) published by FMCSA on August 19, 2003 (68 FR 49737),
with a correction notice published September 11, 2003 (68 FR 53535).
The proposals in the SNPRM were based on statutory requirements and on
public comments to the previous Federal Register notices. For a
complete discussion of the prior proceedings, including the notices
published by FMCSA and FHWA, please see the background discussion in
the SNPRM.
The major proposals in the SNPRM are described below.
Hazardous Materials for Which a Safety Permit Would Be Required
FMCSA proposed that a motor carrier would be required to hold a
safety permit in order to transport in commerce any of the four
hazardous materials specified in 49 U.S.C. 5109(b), in the same
threshold quantities for which the carrier must submit a registration
statement and pay a registration fee under 49 U.S.C. 5108(a)(1)(A)-(D).
The cost-benefit analysis for the rulemaking considered two other
options: (a) an expanded list of materials that are sometimes subject
to additional regulations, such as infectious substances and Hazard
Zone B toxics, and (b) all materials subject to
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the Research and Special Programs Administration (RSPA) security
requirements.
Intrastate and Foreign Motor Carriers
In the proposed rule, an intrastate carrier would be required to
apply for a USDOT number and undergo a compliance review. The safety
rating issued by FMCSA to an intrastate carrier would be used only for
purposes of issuing a safety permit. Likewise, an intrastate carrier
would not be required to comply with any Federal Motor Carrier Safety
Regulations (FMCSRs) (49 CFR parts 390-399) to which it is not already
subject.
The definition of ``interstate commerce'' includes foreign
commerce. Therefore, Canada- and Mexico-domiciled motor carriers
transporting hazardous materials (HM) required to be permitted in the
United States would be subject to the requirements proposed in the
SNPRM.
Application Procedures
FMCSA proposed to create a new form (Form MCS-150B) for a motor
carrier to provide the limited additional information required for
issuance of a safety permit. FMCSA proposed to phase in the safety
permit program beginning January 1, 2005. The actual compliance date
would depend on when the carrier is required to complete the MCS-150
under Sec. 390.19(a). FMCSA did not propose to charge a fee for
applying for a safety permit, but stated that it may consider the need
to assess an application fee in the future, especially if the safety
permit program is expanded to apply to motor carriers of additional
types and quantities of hazardous materials.
Conditions for Issuing a Safety Permit
FMCSA proposed in the SNPRM to require that a motor carrier have a
``Satisfactory'' safety rating in order to obtain a safety permit.
Appendix B to 49 CFR part 385 contains an explanation of the safety
rating process including a list of violations that FMCSA considers
``acute'' (where noncompliance is so severe as to require immediate
compliance) and ``critical'' (where noncompliance relates to management
and/or operational controls). The SNPRM also proposed additions to the
list of acute and critical violations in 49 CFR part 385, appendix B,
paragraph VII.
FMCSA proposed two further conditions for issuing a safety permit:
(1) the motor carrier must show that it has a satisfactory security
program, and (2) the motor carrier must be (and remain) registered with
RSPA. A satisfactory security program would apply to motor carriers
transporting in commerce hazardous materials listed in the SNPRM.
Finally, FMCSA also proposed issuing a temporary safety permit,
valid for up to 270 days, to a motor carrier that does not have a
safety rating but certifies it has a satisfactory security program and
is operating in full compliance with the Hazardous Materials
Regulations (HMRs; 49 CFR parts 171-180); the FMCSRs; comparable State
regulations, if applicable; and minimum financial responsibility
requirements in 49 CFR part 387 or in State regulations, as applicable.
However, FMCSA would not issue a temporary safety permit to a motor
carrier that, as indicated in the Motor Carrier Management Information
System (MCMIS), has a crash rate in the top 30 percent of the national
average; has a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average; or is
listed on FMCSA's SafeStat A, B, C, or D lists.
Permit Number and Evidence in the Vehicle
FMCSA proposed that the carrier be required to maintain in the
vehicle transporting a hazardous material a copy of the safety permit
or another document (including a shipping paper) showing the permit
number. The carrier's safety permit number would not be required to
appear on the shipping paper.
Written Route Plan and Communication
In the SNPRM, we proposed to revise 49 CFR 397.67(d) to require the
carrier, or its agent, to prepare and provide its driver with a written
route plan covering any shipment of a toxic-by-inhalation (TIH)
material or liquefied natural gas for which a safety permit is
required, in addition to all shipments of Division 1.1, 1.2, and 1.3
materials. FMCSA proposed (in Sec. 385.415) that the written route
plan be carried in the vehicle and followed, unless an alternate route
is required by a law enforcement officer or emergency conditions. A
phone number would need to be provided where a company official or
representative could provide route plan and other information about the
shipment to the caller. This phone number would have to be maintained
during the course of transportation of permitted loads.
In addition, FMCSA proposed a communications plan requiring the
driver to communicate with the carrier at least once every two hours
and any time there is a deviation from the written route plan. The
motor carrier would be required to contact law enforcement officials if
there had been no communication from its driver for more than three
hours.
Finally, FMCSA proposed to require the motor carrier to maintain a
record of all communications with the vehicle driver during
transportation of a hazardous material for which a safety permit is
required. The record would be required to contain the name of the
driver, identification of the vehicle, the hazardous material(s) being
transported, the date and time of each communication, and each period
of more than two hours without a communication with the driver,
including a statement of the facts or conditions that prevented
communication for more than two hours.
Pre-Trip Inspections
To implement the pre-trip inspection requirement in 49 U.S.C.
5105(e), FMCSA proposed inspection standards similar to those contained
in the North American Standard (NAS) Level VI Inspection developed by
the Commercial Vehicle Safety Alliance (CVSA) for radioactive
shipments. The pre-trip inspection would have to be performed by a
government inspector--that is, an inspector employed by or under
contract to a Federal, State or local government. The inspection would
be required to cover all applicable requirements in the HMRs and in the
FMCSRs--including 49 CFR parts 383 (commercial driver's license), 391
(driver qualifications), 395 (hours of service), 393 and 396 (vehicle
condition)--or compatible State regulations. The inspection also would
be required to cover provisions in the HMRs on the transportation of
radioactive materials (49 CFR parts 171, 172, 173, and 178) and
registration (49 CFR part 107, subpart G).
Denial, Suspension, or Revocation of a Safety Permit
FMCSA proposed that a safety permit would be subject to suspension
or revocation if a carrier fails to maintain its ``Satisfactory''
safety rating, or under other specified circumstances. These include:
(1) Failure to submit a renewal application or providing any false or
misleading information on a required application form; (2) failure to
maintain a satisfactory security plan; (3) failure to comply with an
out-of-service order; (4) failure to comply with the FMCSRs, HMRs,
compatible State requirements, or an order issued under any of these,
in a manner that shows the carrier is not fit to transport the
hazardous materials for which a safety permit is required; (5)
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loss of the carrier's operating rights; and (6) suspension of the
carrier's registration for failure to pay a civil penalty or to abide
by a payment plan.
The SNPRM proposed procedures for administrative review of a
denial, suspension, or revocation of a safety permit. A motor carrier's
rights to administrative review would depend on the reason for denial,
suspension, or revocation.
II. Summary of Final Rule
This final rule amends the FMCSRs to incorporate the following new
provisions for a safety permit program:
Hazardous Materials for Which a Safety Permit Would Be Required
The final rule adopts a slightly revised list comprised of
hazardous materials requiring a safety permit. The new list compiles
the statutory list and additional explosive and toxic-by-inhalation
(TIH) materials in certain quantities as appropriate. Specifically, a
permit will be required for:
1. Radioactive Materials--A highway route-controlled quantity of
Class 7 materials.
2. Explosives--More than 25 kg (55 pounds) of a Division 1.1, 1.2
or 1.3 material, or an amount of a Division 1.5 material requiring a
placard under 49 CFR part 172, subpart F.
3. Toxic-by-Inhalation (Division 2.3 and 6.1) Materials--Hazard
Zone A materials in a packaging with a capacity greater than 1 liter
(0.26 gallons); a shipment of Hazard Zone B materials in a bulk
packaging (capacity greater than 450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500) gallons.
4. A shipment of compressed or refrigerated liquid methane or
natural gas or other liquefied gas with a methane content of at least
85 percent, in a bulk packaging having a capacity equal to or greater
than 13,248 L (3,500 gallons) for liquids or gases.
Intrastate and Foreign Motor Carriers
The safety permit program will apply to intrastate as well as
interstate carriers. In addition, the program will apply to foreign
carriers. Intrastate carriers must apply for a USDOT number and will be
subject to a compliance review. The safety rating issued to the
intrastate carrier is for the safety permit process only and, unless
specifically noted, will be calculated based on State violations
equivalent to FMCSA's list of critical and acute violations. Beyond the
requirements to obtain a USDOT number and submit to a compliance
review, the intrastate carrier seeking a safety permit will generally
not be subject to any additional safety regulations under the FMCSRs
(such as driver qualification requirements in 49 CFR part 391) that did
not apply to such carriers before this final rule. Several sections of
the regulations are being modified to include intrastate motor carriers
subject to the permitting requirements. This revised text includes
Sec. 385.3 (definitions), Sec. 385.5, and Appendix B to Part 385.
Application Procedures
The safety permit program will require hazmat carriers to complete
Form MCS-150B in lieu of Form MCS-150. In addition, permitted carriers
must complete the MCS-150B in lieu of the MCS-150 to renew both their
permit and their USDOT number, according to the USDOT number renewal
schedule. Implementation of the safety permit program will be phased in
beginning January 1, 2005. The actual compliance date will depend on
the schedule in Sec. 390.19. A motor carrier not involved in the
transportation of a permitted material on January 1, 2005, will need to
apply for and receive a safety permit before it can transport any
permitted material. FMCSA will not charge a fee for applying for a
safety permit under this final rule.
Conditions for Issuing a Safety Permit (Security Program)
Motor carriers must have a ``Satisfactory'' safety rating in order
to obtain a safety permit. In addition, until we complete a compliance
review, FMCSA will not issue a safety permit to a motor carrier that
has, as indicated in the agency's Motor Carrier Management Information
System (MCMIS), a crash rate in the top 30 percent of the national
average, or a driver, vehicle, hazardous materials, or total out-of-
service rate in the top 30 percent of the national average. A motor
carrier must have a satisfactory security program in place and must be
registered with RSPA. A satisfactory security program consists of: (1)
A security plan as prescribed in 49 CFR part 172, subpart I; (2) a
means of communication that will enable the vehicle operator to contact
the motor carrier during the course of transportation; and (3) a means
of providing hazardous materials employees with security training as
required in 49 CFR part 172.
FMCSA will adopt the proposed changes to the list of acute and
critical violations in 49 CFR part 385, appendix B, paragraph VII, with
some corrections.
Temporary safety permits will be issued to motor carriers without
safety ratings, but only for a period of 180 days. In addition, a
temporary safety permit will only be issued to companies that certify
they have a satisfactory security program and are operating in full
compliance with the HMRs, FMCSRs, or comparable State regulations.
FMCSA will not issue a temporary safety permit to a motor carrier that
has, as indicated in MCMIS, a crash rate in the top 30 percent of the
national average, or a driver, vehicle, hazardous materials, or total
out-of-service rate in the top 30 percent of the national average.
Permit Number and Evidence in the Vehicle
We are requiring that the carrier's safety permit number appear on
the shipping paper, on a copy of the safety permit, or on other
documents maintained in the vehicle transporting a hazardous material
requiring a safety permit.
Written Route Plan and Communication
We are maintaining the written route plan required for radioactive
materials set forth in 49 CFR 397.101, and for explosives in Sec.
397.19 of the same title. Written route plans will not be expanded to
include the other materials that require safety permits. However, we
are requiring that while a permitted material is in transportation, the
driver must have the telephone number of an employee or representative
of the motor carrier who is able to determine whether the vehicle is on
the general route for delivery of the material as expected by the
company. The phone number must be made available to law enforcement
officials upon request.
We are requiring companies holding safety permits to develop a
communications plan that allows for the periodic tracking of the
shipment. This may be accomplished either through phone calls or radio
calls placed by the driver or through an electronic monitoring or
tracking system. At a minimum, the communication plan must require
contact from the driver or electronic tracking equipment at the
beginning and end of transportation (during loading or unloading of a
permitted material) or at the beginning and end of each duty period. If
the driver is making the calls, he or she should make them during
periodic rests (taken for reasons other than making the call), or at
the beginning and end of each duty period while not operating the
vehicle or obtaining necessary rest. If the company has any reason to
suspect the shipment has been stolen, diverted, or otherwise off-route
because of a lack or delay of contact from the
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driver, or for other reasons, then the company should contact the
Transportation Security Administration's (TSA) Transportation Security
Coordination Center at (703) 563-3236 or (703) 563-3237.
We are also requiring that a record of communications be kept, by
either the driver (for example, recorded in the logbook) or the
company, containing the time of the call and the shipment location.
These records must be kept, either physically or electronically, for at
least six months at the company's principal place of business and must
be readily available to employees.
Pre-Trip Inspections
We are adopting the proposal requiring that shipments containing
highway route-controlled Class 7 (radioactive) materials undergo a pre-
trip inspection. The standards for this inspection are contained in the
North American Standard (NAS) Level VI Inspection for Radioactive
Shipments. The pre-trip inspection must be performed by a Federal,
State, or local government inspector, or an inspector under contract
with a Federal, State, or local government. The inspector must have
completed an appropriate training program of at least 104 hours,
including at least 24 hours of training in conducting radiological
surveys on inspecting vehicles transporting highway route-controlled
quantity (HRCQ) radioactive materials. The inspection must cover all
applicable requirements in the HMRs; the FMCSRs--including 49 CFR parts
383 (commercial driver's license), 391 (driver qualifications), 395
(hours of service), 393 and 396 (vehicle condition)--or compatible
State regulations; and provisions in the HMRs on the transportation of
radioactive materials (49 CFR parts 171, 172, 173 and 178) and
registration (49 CFR part 107, subpart G).
Denial, Suspension, or Revocation of a Safety Permit
We are implementing a process to deny, suspend, and revoke safety
permits in this final rule. A safety permit will be denied if the
carrier does not have a ``Satisfactory'' safety rating, or if any of
the criteria for suspension or revocation are discovered in the
application process. A safety permit will be suspended or revoked when
the carrier: (1) Does not have a ``Satisfactory'' safety rating; (2)
fails to submit a renewal application or provides false or misleading
information on a required application form; (3) fails to maintain a
satisfactory security plan; (4) fails to comply with an out-of-service
order; (5) fails to comply with the FMCSRs, with the HMRs or compatible
State requirements, or with an order issued under any of these
regulations showing the carrier is not fit to transport the permitted
hazardous materials; (6) loses its operating rights; or (7) has its
registration suspended for failure to pay a civil penalty or abide by a
payment plan. The decision to suspend or revoke a permit will be based
on the severity of the violations.
The first time a motor carrier is found to be in violation of any
of these requirements, the permit will be suspended until the problems
are rectified. The next time a company is found to be in violation of
these requirements, the permit will be revoked for 365 days.
III. Analysis of Comments
In response to the SNPRM, FMCSA received 27 written comments from
State governments, motor carriers, associations, a public interest
group, and individuals. These comments have been considered in the
preparation of this final rule, as discussed below. The comments have
been arranged by topic.
A. General Comments
Several commenters, including American Chemistry Council (ACC), Air
Products and Chemicals, Inc. (Air Products), American Trucking
Associations (ATA), American Pyrotechnics Association (APA), and Baker
Petrolite Corporation (BPC), praise the agency for the intended effect
of the SNPRM to promote the safe and secure transportation of the
designated hazardous materials and thereby enhance motor carrier
safety. However, none of the commenters believe the proposal should be
finalized without further changes. Most of these comments are focused
on the additional burden the proposed rules would place on the
industry. Air Products and Department of California Highway Patrol
(CHP) argue that the safety permit itself will not improve public
safety. Air Products states it is the implementing requirements
necessary to satisfy the intent of the safety permit that are
important, and that these requirements must be clearly defined,
effective, and workable for the motor carrier. The Michigan Department
of Environmental Quality (Michigan DEQ) questions whether the proposed
safety permit rule would have a significant impact on the safe
transportation of hazardous materials.
FMCSA Response: We agree that the supporting requirements, and the
ability to suspend, revoke, or deny a permit for companies found
negligent in their responsibilities to transport hazmat safely and
securely, provide the foundation for an effective permit program. We
recognize the importance of constructing a permit program that
minimizes complexity and maximizes security and safety benefits. FMCSA
disagrees with the assertion that the permit by itself will not improve
safety. The issuance of a permit is tied to a company's safety
performance. Companies with a record of excessive safety concerns will
not be issued a permit.
The Michigan DEQ, the National Small Shipments Traffic Conference
(NASSTRAC), the Institute of Makers of Explosives (IME), APA, and CHP
believe that an additional permitting program will only add to the
burden on the industry by duplicating the existing permit efforts by
the States without providing any appreciable risk reduction or security
benefit. The Conference on Safe Transportation of Hazardous Articles
(COSTHA) states that the regulated community may find it extremely
difficult, if not impossible, to meet the minimum requirements of the
proposed permit program necessary for obtaining and holding a permit.
FMCSA Response: FMCSA believes that we have been responsive to the
specific concerns raised by commenters, and that, with the proposals
adopted for this final rule, the regulated community will be able to
meet the requirements to obtain and hold safety permits. We have
analyzed commenters' concerns and adopted a balanced program that
maximizes benefits while attempting to minimize burden on the regulated
industry.
Advocates for Highway and Auto Safety (Advocates) states that this
and similar recent rulemaking actions by FMCSA have been forged in a
vacuum, without acknowledging recent research into transportation
security. Advocates says that even though the SNPRM provides an
opportunity for FMCSA to adopt aggressive safety and security measures,
the agency ignores the realities of the potential threats that
hazardous materials pose to people, institutions, and the environment.
FMCSA Response: While FMCSA appreciates Advocates' suggestion to
adopt aggressive safety and security measures and has striven to create
an aggressive safety program, we note that the development of these
regulations has occurred over many years, involving dialog between not-
for-profit organizations, States, and industry representatives through
a number of notices in the rulemaking process. In addition, these rules
were created in consultation with a number of
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government agencies having jurisdiction over and particular interest in
hazmat safety and security, and we have made a concerted effort to
coordinate and unify efforts. The requirements for obtaining and
maintaining a permit are commensurate with the level of safety
appropriate to the high hazards posed by the materials covered under
the program. The permit program is one piece of a comprehensive
security and safety strategy including RSPA's security rulemaking,
FMCSA's own research into security technologies, and the collaborative
HM-232A rulemaking addressing multimodal security concerns.
Six commenters (ATA, COSTHA, CGA, IME, Advocates, and NASSTRAC)
raise the issue that, rather than submit to the proposed permit
requirements, carriers may refuse to ship hazardous materials. COSTHA
and IME state that if legitimate carriers refuse to carry hazardous
materials, then the transportation of these products may shift to
noncompliant carriers or other modes of transportation. IME points to
the example of the recent impact of security regulations issued by the
Bureau of Alcohol, Tobacco, Firearms & Explosives (ATF) on the
commercial transportation of explosives.
Fisher Scientific Company LLC (Fisher Scientific) states that some
of its carriers have already indicated they will not be securing
permits for transporting hazardous materials. As a shipper of many
types of hazardous materials, Fisher Scientific tries to leverage its
transportation costs by having one carrier satisfy all of its
transportation needs. If carriers refuse to transport hazardous
materials, Fisher Scientific's costs will increase because it will need
to hire multiple carriers.
FMCSA Response: While we understand the possible effects a
permitting program may have on the hazardous materials transportation
industry, we also recognize that many factors play a role in a
company's decision to carry hazardous materials. Permits are already
required in 40 States, and recent security measures by RSPA, TSA, and
other agencies may have a greater influence than today's final rule on
a company's decision to carry hazmat. We believe commenters may have
overestimated the impact this permitting rule will have on hazardous
materials carriers. FMCSA has observed the development of companies
specializing in hazardous materials transportation that handle all
aspects of a hazmat shipment, including routing, tracking, and
regulatory compliance. While it is possible that the nature of
hazardous materials shipping may change due to new security awareness,
FMCSA believes the market is well equipped to meet the ever-present
demand for the transportation of hazardous materials in the United
States.
In any case, FMCSA took these comments into consideration in
developing the final rule and believes that the safety permit program
adopted does not present the same burden as that which the SNPRM may
have presented. FMCSA has also considered the effects on the industry
in its cost-benefit evaluation for this rulemaking.
National Tank Truck Carriers (NTTC) and Overnite Transportation
(Overnite) request that shippers be included as active participants in
the permit program. NTTC and Overnite are concerned that only the
carrier bears responsibility and liability under the proposed permit
requirements, while in fact the shipper plays an integral role. NTTC
points out that Section 5109 of the Hazardous Materials Transportation
Act (HMTA) includes a direct reference to ``Shipper Responsibility''
and gives the Secretary unfettered discretion to determine the scope of
the permit program.
FMCSA Response: FMCSA's direct jurisdiction is over carriers rather
than shippers. Although Section 5109 references shipper responsibility
and gives the Secretary discretion to determine the scope, our
jurisdiction cannot reach shippers (unless the company is also a
carrier). This authority was specifically delegated to RSPA.
In comments concerning the security aspects of this rule, ATA
states, ``* * * it is important to recognize that there has never been
a terrorist attack in the United States using a registered motor
carrier transporting one of the designated hazardous materials.''
FMCSA Response: FMCSA points out that before the 9/11 attacks,
terrorists had not attempted an attack of this magnitude. Airport and
airline security had been identified prior to 9/11 as issues needing
action, but it was only after 9/11 that cockpit doors were fully
secured. We cannot limit our actions to prevent only the type of
terrorist attacks that have already occurred. FMCSA strongly believes
it is appropriate for the agency to address the transportation of these
high-hazard materials in a proactive manner. Through this permitting
program, FMCSA believes it is reducing the possibility of ``bad
actors'' carrying high-hazard materials, and thereby helping to avoid
accidental and purposeful releases.
B. Preemption of State Programs
Five commentors (IME, Advocates, ATA, NASSTRAC, and an individual)
state that the proposed rule should preempt State permitting programs
and eliminate the burden placed on hazardous materials motor carriers
by dissimilar, redundant, non-Federal permitting programs unilaterally
imposed by States. One commenter, the Alliance for Uniform Hazmat
Transportation Procedures (Alliance), generally agrees with FMCSA's
analysis of limited preemption and supports the continuing role of
State permit programs as outlined in the SNPRM. The Alliance believes
that the State Uniform Program could accomplish the objectives of the
proposed Federal safety permit. The Alliance requests that FMCSA
specifically name Alliance's uniform program as not preempted by the
proposed regulations, and as a ``safe haven'' for States wishing to
regulate hazardous materials transportation.
An individual commenter asserts that the State permit programs are
``really just a superficially legal means to gather revenue (taxation)
from out of state hazmat carriers.'' This commenter says that if DOT
refuses to preempt State programs, it should at least ``make them
uniform in nature, limit the fees to the cost of administration, and to
eliminate totally the county permit programs.''
IME states that the current state of hazmat motor carrier
permitting requirements does not look much different than it did in
1990, when Congress enacted 49 U.S.C. 5109 and 5119 on permit
authority, and that the proposed regulations do nothing to improve the
situation. IME, Advocates, and the NASSTRAC point out that Congress
expressly gave DOT authority to preempt State hazardous materials laws
to ensure State laws achieve greater uniformity. The NASSTRAC states
that, to the extent similar or other excessively burdensome or
counterproductive requirements exist at the State level, it is a
misguided form of federalism to forgo the opportunity to address them
in this proceeding.
ATA and Advocates assert that the agency's decision in the SNPRM
not to move forward with a uniform permitting system for intrastate
transportation amounts to an unsubstantiated statement that such a
program would be impossible to administer.
ATA and Advocates also point out that DOT has exercised its
preemption authority in the past, through RSPA's final rule requiring
that all intrastate shippers and carriers comply with RSPA's
implementing regulations for hazardous material motor carrier
[[Page 39355]]
transport (62 FR 1208, Jan. 8, 1997). RSPA's final rule expressly
preempts State laws, regulations, and other administrative mechanisms
that conflict with prevailing Federal hazmat law and regulation. Both
commenters noted RSPA is clearly fulfilling the congressional direction
of the Hazardous Materials Transportation Uniform Safety Act of 1990
(HMTUSA) by applying the broad authority granted to the Secretary to
achieve more intrastate-interstate hazmat transportation uniformity.
ATA and Advocates argue that FMCSA has the same statutory authority to
establish more uniformity in the area of motor carrier hazardous
materials transportation in this rulemaking.
IME asserts that FMCSA's summary of the background on this
rulemaking is incomplete and misleading. IME states:
In 1990, Congress directed the Secretary of Transportation to
implement a motor carrier safety permit for motor carriers of
certain hazardous materials and, at the Secretary's discretion, to
expand the list of materials triggering a permit by November 1991--
the ``Sec. 5109'' permit * * * FMCSA did not even release a
proposed rulemaking until 1993.
IME states that the proposal was criticized as inadequate by the
regulated community, States and safety advocates, and that, in the
meantime, a congressionally mandated working group of States was
convened to develop uniform forms and procedures for States to use to
register and permit hazmat motor carriers--the ``Sec. 5119'' or
``uniform'' permit. According to IME, the working group met its 1993
statutory deadline to submit a report to Congress on the feasibility of
a Uniform Permit. IME states that the working group recommendations
supported a Uniform Program, and that Congress directed the Secretary
to ``prescribe regulations to carry out the recommendations contained
in the report.'' According to IME, all that remained to implement this
section was for the Secretary to identify those ``recommendations with
which the Secretary agrees.'' IME asserts that, as with ``the Sec.
5109 permit, including the Sec. 5105 inspection requirement for
certain vehicles carrying radioactive material, the Sec. 5119 permit
has languished at FMCSA.''
ACC, Minnesota Department of Transportation, CVSA, and the Alliance
also support a uniform program. The Alliance comments:
States belonging to the Uniform Program urge the FMCSA to more
closely consider the Uniform Program as an alternative to the
proposed federal permit. The Uniform Program is an established,
demonstrated program that could achieve the same goals as the
proposed federal permit in a more cost-effective and efficient
manner. Seven states are already successfully using this program
and, with a few minor modifications which the Alliance is prepared
to make, it could easily be extended to cover all shipments of the
four types of materials covered under the federal safety permit. The
Alliance proposes a consultation with FMCSA to work out the details
of such an approach.
In view of its comments, the Alliance ``requests that FMCSA defer
any decision relating to a uniform program until misunderstandings
related to the Alliance Uniform Program is alleviated through
consultation with Alliance members (sic) states and the Alliance
Governing Board.''
ATA states that the most efficient way to ``* * * harmonize the
myriad of existing hazardous materials permits and relieve the trucking
industry of a significant administrative burden * * *'' is to
incorporate any new Federal requirements into the existing Uniform
Permitting Program, authorized by 49 U.S.C. 5119. COSTHA also urges
that a ``uniform program be applied nationally and to preempt a myriad
of state and local permitting systems.''
FMCSA Response: FMCSA recognizes the authority of States to
implement hazardous materials permits. For the materials covered by
FMCSA's safety permitting program, States are preempted only if
implementing a program with more stringent operational requirements
than prescribed in this final rule. This addresses commenters' concerns
for a nationwide uniform program for the materials covered by the
Federal safety permit. However, this does not prevent States from
permitting other materials, such as hazardous wastes. This approach is
similar to RSPA's administration of its registration program, which
preempts State registration programs for the list of materials covered
by the RSPA registration program while allowing States to implement
other types of registration programs.
A uniform permit program for these identified materials is
essential to provide for ease of interstate transportation. FMCSA
acknowledges the Alliance program is not currently identical to the
program required in this final rule. However, FMCSA has been assured by
the Alliance that its program will mirror the FMCSA program in the
future, thus aligning States currently working on a State-by-State
uniform program with the Federal permit program. If a State's program
is equivalent to the Federal program, then FMCSA will issue a safety
permit based on the successful issuance of the comparable State permit.
C. Qualification Based on State Permit
Proposed Sec. 385.411 would allow FMCSA to issue a Federal safety
permit, without further inspection or investigation, when it can verify
that a State has a safety permit program that is equivalent to the
requirements in 49 U.S.C. 5109. Air Products and the Alliance both
support this proposal. Short of adopting the Alliance Uniform Program,
the Alliance supports the FMCSA proposal to ``issue a federal safety
permit to a carrier without further inspection or investigation when
FMCSA is able to verify that the carrier holds a safety permit issued
by a State under a program that is equivalent to the federal safety
permit program.'' The Alliance believes this is efficient and that it
recognizes existing expertise in State programs. The Alliance also
believes that the FMCSA proposal cuts the burden on carriers and
recognizes the dual nature of State-Federal regulation of hazardous
materials transportation.
ATA comments that the proposed rule states that where a motor
carrier participates in an equivalent State program, the carrier must
still apply for the Federal safety permit, and FMCSA will immediately
issue the permit without further inspection or investigation. ATA
points out that at this time there are no ``equivalent'' State permit
programs.
Advocates states it is not completely averse to FMCSA's proposed
reliance on prior State safety permits. However, Advocates comments
that the preamble does not explaining how the agency will ensure that
State permits are in fact equivalent to the Federal program
requirements, and how often determinations of equivalence will be
performed through frequent reevaluations of State permitting practices.
Alliance comments that, to work cooperatively with FMCSA, it is
considering an upgrade to its program to cover elements of the new
Federal permit that it currently lacks. This would consist primarily of
adding questions related to a carrier's security plan and shipment
tracking system. Once this program revision is in place, motor carriers
with permits from Alliance member States and that transport hazmat in
Alliance member States would have received scrutiny equivalent to the
Federal permit. Alliance believes its program could substitute for the
Federal safety permit.
FMCSA Response: FMCSA agrees with ATA that there are no current
equivalent State programs. However, we have been assured by the
Alliance that
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it is dedicated to cooperating with FMCSA in developing equivalent
programs. FMCSA will identify State programs that match the Federal
safety permit program. These programs must have the same requirements
as set forth in this final rule. If a carrier is issued a permit by a
State identified as having the same requirements as the Federal
requirements, FMCSA will automatically issue the carrier a Federal
permit. Thus, individual States (including those in the Alliance) will
be able to administer their registration programs, as long as the State
program is identical to the requirements in this final rule for the
materials covered by this final rule. FMCSA looks forward to the
Alliance's adjusting its program to facilitate compliance and
uniformity between State and Federal programs.
D. List of Materials (Applicability)
Twelve comments address the issue of applicability. Six commenters
(Air Products, NTTC, ATA, Distilled Spirits Council of the United
States (DISCUS), NASSTRAC, and ACC) agree with FMCSA's proposal not to
expand the statutory mandated list of hazardous materials for which a
permit is required. Three commenters (Advocates, IME, and Onyx
Environmental Services (Onyx)) believe that FMCSA should address the
need to permit coverage beyond the minimum mandated in 49 U.S.C. 5109.
IME states, ``FMCSA's determination to simply go with the section
5109 statutory list is not dictated by current realities.'' IME adds
that in developing an appropriate list of materials for a safety/
security permit and accompanying operational restrictions, FMCSA could
consider ``the predictability of shipments, the volume per shipment or
package, the population centers traversed, the number and distance of
trips, the proximity of significant landmarks or public events, and the
level of security risk as determined by the Department of Homeland
Security.''
ATA believes that FMCSA should ``raise the threshold quantities
used to trigger a motor carrier's obligation to obtain a federal safety
permit.'' It states, ``* * * for example, it is unlikely that 55 lbs.
of explosives or 1 liter of PIH material will cause damage approaching
that of the Oklahoma City bombing.''
APA, Salt River Valley Water Users' Association, and Salt River
Project Agricultural Improvement and Power District (SRP) state that
the scope of the proposed safety permit program is unwarranted and
unfair. SRP proposes that the rule be modified to apply only during
transportation of hazardous materials in excess of 500 gallons or more
than 75 road miles in a 12-hour period.
Advocates states that ``* * * unfortunately, the FMCSA has chosen
to cover only the lowest possible number of motor carriers by limiting
the regulation essentially to only the statutory minima specified by
Congress.'' Advocates cites the 13-year period since the passage of the
legislation, and in particular the two years since September 11, 2001,
as reasons to urge FMCSA ``in the strongest possible terms to
reconsider this unrealistic abbreviation of its oversight, approval,
and enforcement role.'' Advocates also recommends that ``FMCSA should
parallel at least the requirements of the RSPA security plan final rule
with identical coverage for the federal safety permit program.'' Onyx
mirrors these comments by suggesting that FMCSA adopt the list in Sec.
172.800(b).
FMCSA Response: A number of considerations went into the
development of the list adopted by FMCSA in this final rule. Indeed, in
determining this list for applicability to the safety permit
requirements, FMCSA analyzed the risks and potential damage various
hazardous materials in different quantities could inflict if used
maliciously or as a consequence of an accidental release. We used
information from different sources to piece together a coherent picture
on the possible risks these quantities of hazardous materials pose. For
example, FMCSA disagrees with ATA about the effects one liter of a TIH,
Hazard Zone A, could have on a population in an enclosed environment,
or that 55 pounds of some Division 1.1 explosives would not produce
significant damage to vital structures.
We also note that tying permits to distance traveled and time in
transit (in addition to the basic criteria concerning amounts and types
of materials) could pose significant logistical challenges to the
implementation and enforcement of a permit requirement.
FMCSA reviewed risk analysis for hazardous materials safety, and
developed risk assessments for accidents and terrorist strikes using
hazardous materials. In addition, FMCSA considered the list of
materials that Congress specifically mentioned in the statutory
requirements for the permitting rule. The list developed for this final
rule is the result of identifying not only materials that present the
highest hazards in transportation, but also materials that pose the
largest risks for human casualties and damage to property and the
environment if used by a terrorist or militant. These materials also
generally face a higher level of regulation in the HMRs and FMCSRs. In
addition, the list of materials was developed in consultation with RSPA
officials. The FMCSA safety permitting program materials list is a
subset of those materials identified by RSPA's security requirements.
Every effort has been made to fit the permit program into the larger
realm of hazardous materials safety and security regulations.
E. Duplication of Other Agency Programs
NTTC, ATA, APA, Onyx, ACC, Alliance, and Minnesota Department of
Transportation recommend that program duplication could be
substantially eliminated if the FMSCA permitting program were somehow
combined with the RSPA registration program. As referenced above,
Alliance's ``first recommendation is for FMCSA to use the existing
Alliance program to achieve the purposes of the proposed federal safety
permit.'' Alternatively, Alliance agrees with commenters who suggest
using the existing RSPA annual registration program rather than
creating a new and separate system.
NTTC states that, with certain amendments, the FMCSA permitting
program can prove a marginal improvement to the Administrator's
comprehensive regulatory program despite its inherent redundancy with
State programs and its overlap with the current ``hazmat carrier/
shipper registration program'' (administered by RSPA).
Alliance, IME, Air Products, the Compressed Gas Association (CGA),
Onyx, and ACC state that the proposed new form MCS-150B is unnecessary
because it largely duplicates existing form MCS-150. Most of these
commenters recommend that any additional information necessary could be
obtained by adding to the current form. For example, IME states, ``* *
* only nine of the 28 data elements on the proposed form MCS-150B
require information that is not already reported on Form MCS-150.'' In
addition to questioning the need for two separate application forms,
Onyx requests that the term ``HM incidents'' be defined because item 20
on form MCS-150B requests information on any hazardous materials listed
in question 18.
FMCSA Response: It was FMCSA's intent in the SNPRM to propose that
the MCS-150B be completed in place of the MCS-150. Those entities
seeking a safety permit would complete MCS-150B instead of MCS-150.
This way, entities that do not transport permitted materials would not
be presented with the fields on the form pertaining to the
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permit application process, and carriers seeking a permit would only
have to complete one form for FMCSA. In addition, the question asking
about incidents over the last 2 years was eliminated because that
information could be determined within DOT.
We disagree with commenters that the safety permit program
administered by FMCSA should be combined with the RSPA registration
program. The two programs serve completely different purposes and
require significantly different types of information from motor
carriers. A combined application form could confuse applicants and
result in serious data and financial management problems. In addition,
the registration program does not involve a safety or security
evaluation of the covered carriers, and thus provides no enforcement
mechanism for companies that do not comply with safety and security
requirements.
There are several barriers to combining this permitting application
process with RSPA's registration process, including the differences in
entities applying for registration and the safety permit. However,
FMCSA, RSPA and other DOT agencies are committed to reducing the
paperwork burden resulting from the application process under the ``e-
commerce'' initiative. FMCSA, along with other government agencies
including RSPA, attempts to ease the burden by providing on-line
application procedures. FMCSA was able to reduce the paperwork
internally by replacing the MCS-150 with the MCS-150B. Future efforts
to streamline related application processes are constantly being
considered.
F. Obtaining a Safety Rating
Under proposed Sec. 385.407(a), a motor carrier must have a
``Satisfactory'' safety rating in order to obtain a safety permit. CGA,
Air Products, ATA, Advocates, NASSTRAC, CVSA, and Alliance, while
generally supportive of the Satisfactory rating concept, raise
questions as to how the concept will work in practice.
CGA, Air Products, Alliance, and NASSTRAC question FMCSA's ability
to act promptly either to determine a carrier's initial eligibility for
a Satisfactory safety rating or to reestablish that rating when it has
been lost and the carrier has taken steps to remedy the problem.
Advocates opposes the proposed issuance of a temporary safety
permit for up to 270 days. Advocates ``believes that this proposed
feature of the supplemental proposed rule has numerous pitfalls both
for safety and security, and that it would be unwise public policy to
allow a carrier without a compliance review and ``Satisfactory'' safety
rating nevertheless to secure a permit that would be valid for 9 months
* * *.''
FMCSA Response: FMCSA agrees that 270 days is too long for a
temporary permit. Carriers requiring a safety permit will receive a
compliance review over the two-year phase in period within 180 days of
initial application instead of the proposed 270 days. If a safety
permit is revoked or suspended because of problems with the safety
rating, procedures are in place to reinstate the suspended or revoked
permit when the problems with the safety rating have been resolved.
G. Pre-Trip Inspections
GE Nuclear Energy expressed several concerns with the pre-trip
inspection requirements. It appears that GE Nuclear Energy did not
understand that the pre-trip requirement of this rule would be met by
performing a NAS Level VI inspection developed by CVSA. GE Nuclear
Energy also argued that the proposed regulation states that if ``any
violation of requirements * * * is discovered, the vehicle must be
placed ``out of service'' and may not be moved * * *.'' GE Nuclear
Energy points out that certain radioactive materials shipments, such as
irradiated fuel, are required to be moved to safe havens, as defined in
10 CFR part 73, for security reasons without delays. Therefore, GE
Nuclear Energy requests that the proposed regulations in part 385 and
any other necessary section be clarified to allow limited vehicle
movement to safe havens.
Advocates and CVSA fully support the agency's proposals concerning
pre-trip inspections, pursuant to 49 U.S.C. 5105(e), that the
inspections be conducted by trained government inspectors using
standards similar to the NAS Level VI protocol developed by CVSA.
However, Advocates strongly supports extending inspection criteria
similar in stringency to those required by CVSA Level VI to all hazmat
carried under Federal safety permit. CVSA believes it should be stated
explicitly that inspections will continue in the current manner, which
would allow only CVSA certified officers and inspectors to conduct the
inspections.
FMCSA Response: In response to GE Nuclear Energy's concerns about a
vehicle with certain radioactive materials shipments being placed out
of service because of the pre-trip inspection, FMCSA notes that this is
a requirement for pre-trip inspections. Thus, if a vehicle did not
comply with the requirements, it would remain at the shipper facility
and not be allowed to enter transportation. In the unlikely event a
vehicle were found in violation of any of the pre-trip inspection
requirements while in transportation and placed out of service, the
vehicle would be escorted to a safe haven or other suitable place.
In 49 U.S.C. 5105(e), FMCSA is required to implement a pre-trip
inspection for route-controlled radioactive shipments, and this was
proposed in the SNPRM. The North American Standard (NAS) Level VI pre-
trip inspection is specifically referenced in the regulations as
meeting the requirements for the permit pre-trip inspection process. In
response to Advocates' suggestion to apply the pre-trip inspection to
all permitted materials, we cannot consider this at present as it was
not proposed in the SNPRM.
H. Route Plans
Most commenters are critical of and disagree with the proposal that
a carrier prepare and provide its drivers with a written route plan
covering any shipment designated in the rulemaking. Commenters have two
general criticisms. First, they fail to see the security benefits of
this proposal. For example, ATA writes:
The SNPRM states that adherence to route plans will increase
safety. Aside from this conclusory statement, FMCSA has not
explained the safety benefits associated with maintaining written
route plans. Based upon the FMCSA's historical experience with the
use of route plans for radioactive substances, we believe that the
Administration has the tools at its disposal to quantify the safety
benefits that have been attributable to the use of route plans.
The second general criticism is that there are many instances in
which a driver must alter the route. For example CGA writes:
A vehicle transporting time sensitive deliveries may be forced
to abandon a specific route due to a major traffic tie up. The
carrier may, in the performance of a delivery of one shipment
covered by this rulemaking, be required to pick-up a container of
similarly regulated material in excess of the minimum for return. No
written route plan would be available to the driver in this
instance.
On many city deliveries drivers need to adjust their route based
on the customers receiving hours or congestion at the customer. The
driver, rather than waste time in line to make a delivery, may opt
to proceed to the next customer and then return to make the delivery
at a later time. In addition to it being a good productivity
practice it would be especially important when considering the Hours
of Service regulations.
Most commenters argue that this proposal would curtail the
legitimate
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movement of materials and create a significant economic burden without
a real increase in security.
Several commenters also are concerned about the requirement that
drivers amend the written route plan to show any deviations from the
original plan. Air Products requests clarification about when a driver
must amend the written route plan and what constitutes a deviation
requiring an amendment. NTTC writes:
Even under totally legitimate circumstances, vehicle drivers
should be free to make acceptable route changes to avoid
extraordinary congestion, accidents, detours, etc. without having to
make handwritten notations on documents while driving and without
the permission (or direction) of local law enforcement.
Finally, commenters are critical about the requirement that
carriers (not drivers) develop and maintain the written route plans.
Advocates strongly supports this proposal and states:
Advocates strongly supports the FMCSA's proposal for a prepared,
written routing plan to be in the possession of the driver at all
times for carrying Hazard Zone B materials * * * We also strongly
support the requirement for alternate routing to be allowed only at
the behest of enforcement authorities or bona fide emergency
conditions. Advocates also supports the additional feature of this
section of the supplemental proposed rule that prohibits the driver
from preparing the written route plan.
However, Advocates believes that FMCSA needs to make it clear that
amendments of the written route plan by the driver must be confined
solely to alternate routes by reason of enforcement authority direction
or because of verified emergency conditions, such as road and bridge
closures, forest fires, and hazmat spills.
FMCSA Response: FMCSA recognizes the difficulties in developing
route plans for a range of hazardous materials. Less-than-truckload
(LTL) carriers, in particular, could face significant logistical
problems. Thus, FMCSA will not adopt additional route plan requirements
in this final rule. Instead, the route plan requirements will apply
only to materials that currently require a route plan (highway route-
controlled radioactive Class 7 and Division 1.1, 1.2, and 1.3 explosive
materials). The requirements for route plans, which address any changes
that the driver encounters en route, are specified in Sec. 397.101 and
Sec. 397.67 of this subchapter.
The agency believes it is important to require the phone number
aboard the vehicle, so that when called, it is answered by a company
employee or representative of the company to confirm that the vehicle
is within an expected route for that shipment. FCMSA believes that,
although the phone-contact requirement is less comprehensive than a
written route plan, it does provide an increased level of security.
This provides enforcement officials with a mechanism to check that the
vehicle has not deviated too far from its intended path. For example,
if a shipment of a permitted material is in Ohio while it should be
going from Baltimore, Maryland, to Atlanta, Georgia, an enforcement
official would want to confirm with the company that this shipment is
``off course,'' and could be stolen or misdirected. The only way an
enforcement official would be able to confirm the destination and
origin of a material would be to contact the carrier company, since
hazardous materials shipping papers do not require the destination
address.
I. Communications Plan
The proposed rule included a provision that a communications system
be installed on each motor vehicle used to transport a hazardous
material listed in Sec. 385.403(a), to enable the vehicle operator to
immediately contact the motor carrier during the course of
transportation of the hazardous material. The proposed rule also
provided that each operator must be trained in the use of the
communications system. All but one commenter on this issue opposed
these requirements. Several commenters submit that neither cell phone
nor satellite tracking devices will comply with this provision.
Commenters state that cell phones are not ``installed'' in the vehicle
as required by the provision, and there are vast regions of the country
where cell phone use is limited or unavailable. Similarly, they note
that satellite tracking devices only function when there is a direct
``line of sight'' between the vehicle's antenna and the relay
satellite.
The proposed rule included new requirements for a driver to
communicate with the motor carrier once every two hours while
transporting a material for which a safety permit is required. Most
commenters oppose this new requirement, citing three criticisms. First,
several commenters discuss concerns about the driver using a cell phone
while driving or needing to pull off the driving lines in order to make
the required phone call. Second, several commentors mentioned the
burden on motor carriers that the call-in procedure would create. The
third criticism of the two-hour notification is that the proposal
conflicts with driver hours-of-service requirements.
In addition, FMSCA proposed that a motor carrier must contact law
enforcement authorities if more than three hours have elapsed between
driver communications. Commenters call this proposal unreasonable,
burdensome, confusing, and potentially unworkable. Nine of the ten
comments received on this issue asked FMCSA to clarify what law
enforcement authorities should be contacted. For example, several
commentors submit that a vehicle could travel through various
jurisdictions in a short time, so that there are many law enforcement
choices (Federal, State, and local) for a motor carrier to contact.
Advocates strongly supports the FMCSA Field Operational Test
initiative to test a wide variety of safety and security technologies
for use within the hazmat supply chain from offerors to consignees.
Advocates applauds this vigorous investigation of supplementary safety
and security technologies and the agency's willingness to consider
modifying the contours of its safety permitting system in light of the
findings of these trial technologies. Advocates also emphasizes that
the use of remote tracking technologies to ensure adherence to route
plans, and to ensure that drivers do not violate hours-of-service
limits, is crucial to advancing hazmat safety and security.
Along with the proposal to make these calls, FMCSA proposed a
recordkeeping requirement. IME, Air Products, and ACC object to the
proposal that motor carriers create and then retain for six months
records of driver-carrier communications. IME comments that companies
with larger numbers of drivers and carrier personnel may be overwhelmed
by the demands of keeping and consolidating written records that
include routine communications. Air Products would like to know the
frequency for updating the communications log; in some instances it may
be a considerable time before the facts or conditions that prevented
communication from the driver are known. ACC states that maintaining a
log of this nature would require substantial personnel resources and
yield little security benefit.
FMCSA Response: FMCSA agrees with commenters that the
communications requirements proposed in the SNPRM could present
logistical problems. Further, we are working with RSPA on an ongoing
security rulemaking under docket HM-232A. FMCSA does not want to create
requirements in this rulemaking prior to completion of the Field
Operational Test initiative and the HM-232A
[[Page 39359]]
rulemaking. Essentially, FMCSA's original proposal was an effort to
develop a ``low-tech'' tracking system of permitted materials through
the use of communication with the driver of the shipments. However, if
the system is too cumbersome, it will fail to achieve this goal.
Therefore, the requirements in this final rule create a basic tracking
system that allows for flexibility. With a basic framework in place,
FMCSA will work with RSPA in its security rulemaking process to develop
further security measures.
The requirement in today's final rule for companies to develop a
communications plan requiring at least two calls per day is an effort
to minimize the burden on industry, while creating a basic structure
for tracking vehicles. It is probably current practice with many
drivers to check in with their company twice a day (or at the pickup
and delivery of a load), and FMCSA believes this is a minimum
requirement to assure that high-hazard shipments undergo some type of
tracking and monitoring. FMCSA does not intend drivers to meet this
requirement by using a cell phone while operating a motor vehicle, or
to make an additional stop. The agency believes that the twice-a-day
requirement is consistent with current practice and can be met without
making additional stops. Due to the decrease in the number of required
calls, maintaining a record of these calls does not present the same
burden as maintaining a record of the number of calls proposed in the
SNPRM.
In addition, providing in the final rule the TSA's Transportation
Security Coordination Center phone number, and recommending, rather
than requiring, that companies or drivers call the center if
notification is late or absent, will reduce the number of ``false
calls.'' FMCSA also believes it will provide more flexibility to
companies inaccurately tracking shipments, while also providing an
avenue to report missing or stolen shipments.
FMCSA notes that the reduced number of required calls in today's
rule greatly diminishes the paperwork burden. In addition, the
flexibility provided for this requirement should address commenters'
concerns about the paperwork requirements. FMCSA allows for flexibility
by requiring companies to have a system in place to track the calls
made under the communications plan. Either the driver or the company
may keep a record of when and where the calls are made. However a
company wishes to keep this information, it must be made available to
an enforcement official upon request.
J. Permit Documentation
CGA, Air Products, NASSTRAC, and ACC support FMCSA's proposal not
to require the carrier's safety permit number to appear on shipping
papers, but state that the carrier would still be required to maintain
a copy of the safety permit or have another document showing the permit
number in the vehicle transporting a designated hazardous material.
These commenters suggest that if the registration application for the
hazardous materials Certificate of Registration were used for issuing
the safety permit, one document could contain both the registration and
safety permit number(s), thereby reducing administrative effort and the
driver's paperwork burden. ATA states that, to the extent evidence of
the permit is required in the vehicle, that document should be combined
with the RSPA registration certificate or Uniform Program document and
FMCSA should not pursue the creation of a new, separate motor vehicle
certificate.
NASSTRAC also supports FMCSA's decision to leave to another
occasion implementation of the statutory requirement that shippers may
offer a designated commodity ``only if the carrier has a safety
permit.'' NASSTRAC suggests this requirement may be met in less
burdensome ways, such as attaching permits to contracts with a
requirement that the carrier notify the shipper immediately of any
change in its status. Or it may be met in more burdensome ways, such as
requiring that shippers confirm carrier permit status every time a
shipment of a designated commodity is tendered. NASSTRAC would not
support the latter approach.
Alliance asks about the statement in the SNPRM preamble that ``A
state or local law enforcement officer would be able to confirm the
validity of this number (safety permit number) through real-time or
close to real-time information made readily accessible by FMCSA.''
Alliance wants to know what system would provide this information and
how it would be used.
FMCSA Response: It is essential for enforcement purposes that a
carrier's permit number or a copy of its permit be on board the vehicle
for which the permit is required. Otherwise, it would be impossible for
a roadside inspector to determine if the company held a current, valid
permit. Using a computer system database or calling into a facility
with access to these systems allows for real-time or close to real-time
tracking of permit numbers through current FMCSA systems.
Since this program is not being combined with RSPA's registration
program, FMCSA will not require the permit number to be on the RSPA
registration statement. However, a carrier that wishes to present all
its required registration or permit numbers together will have the
flexibility to display the permit number on any document the carrier
desires.
K. Enforcement
Advocates strongly supports the criteria under which a safety
permit will be subject to denial, suspension, or revocation, but asks
for clarification on the terms of each of the three actions. Since the
hazmat safety permit addresses a specific subset of hazmat deemed
especially dangerous and worthy of additional Federal approval and
oversight, the agency should specify a minimum period that must elapse
before the carrier can reapply for a hazmat permit after the permit was
suspended or revoked. Advocates strongly suggests establishing a
minimum suspension period of 30 days and a minimum revocation period of
90 days before a carrier could attempt to regain its safety permit
status.
FMCSA Response: Any violation of the permitting rule falls under
the HM statute penalty provision found in 49 U.S.C. 5123. We have
modified the title of paragraph (e) in Appendix B to Part 386 to
reflect this. FMCSA has compiled a list of critical and acute
violations that could affect a company's safety rating, leading to the
suspension or revocation of a safety permit, along with a listing of
other actions that could lead to revocation or suspension of a permit.
For the first instance of violating these requirements, the permit
will be suspended until the problems are addressed. The second time a
motor carrier is found in violation of these requirements, the permit
will be revoked for one year. The decision to deny a permit is outlined
in Sec. Sec. 385.405 and 385.407.
Although we did not receive comments concerning this issue, FMCSA
removed the SafeStat listing as a reason for denying a permit because
the SafeStat listing is redundant in view of the crash rate, out-of-
service rate, and security requirement criteria for denial.
L. Cost-Benefit Analysis
The 10 commenters addressing cost and benefit issues question
virtually all of FMCSA's assumptions and estimates, with respect to
costs, benefits, or both. These commenters are IME, CGA, ATA, COSTHA,
NASSTRAC, Motor Freight Carriers Association (MFCA), Alliance,
[[Page 39360]]
Fisher Scientific, BPC, and an individual.
ATA, COSTHA, MFCA, BPC, and Fisher Scientific question FMCSA's
assumption that currently 90 percent of carrier vehicles or drivers are
equipped with cell phones or some kind of communications equipment.
MFCA estimates that the costs of communication devices to the industry
would be ``10 times the FMCSA total industry estimate of $125,000.''
IME, ATA, Alliance, COSTHA, and Fisher Scientific all question
FMCSA's estimate of a 25 percent reduction in the number of hazardous
materials accidents as a result of this rulemaking.
NASSTRAC, IME, and ATA question the use of September 11 as a basis
for estimating the costs of an intentional hazardous materials incident
and the potential benefits from avoiding such an incident. ATA states:
Using the September 11, 2001, incident cost estimates is
inappropriate in the context of discussing the cost of a truck bomb
with some quantity of regulated hazardous materials. First, the
September 11th attack was not one terrorist attack; it was the
coordination of four separate attacks. Second, the instruments used
in the attacks were airplanes, not trucks. Third, the damage from
the attacks was not caused by the release of hazardous materials
that are subject to this Proposed Rule. As such, the cost estimates
used do not comply with DOT'S data quality guidelines and are
otherwise arbitrary and capricious.
ATA further states that based on FMCSA's own assumption that the
SNPRM will thwart one of the next thousand terrorist attempts, ``we
would expect this rule to stop one terrorist attack over the next 5,000
years.''
FMCSA Response: The cost of communications equipment was partially
responsible for FMCSA's reducing the number of phone calls required and
for allowing the calls to be placed at times where access to a payphone
or customer phone would be available. FMCSA has addressed many comments
concerning the use of terrorist events in the cost-benefit analysis for
this final rule. For example, instead of using a set probability that
this rule would prevent a terrorist attack, we have performed a simple
sensitivity analysis to show the possible range of benefits depending
on the probability the rule will prevent a terrorist attack. Readers
are encouraged to refer to the full cost-benefit analysis in the docket
for further discussion of these issues.
IV. Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
FMCSA has determined that this rulemaking is a significant
regulatory action within the meaning of Executive Order 12866, and is
significant within the meaning of the U.S. Department of
Transportation's regulatory policies and procedures (DOT Order 2100.5
dated May 22, 1980; 44 FR 11034, February 26, 1979) because of
significant public interest in the issues related to hazardous
materials permitting.
FCMSA's analysis determined that first-year costs to implement the
permit program established in the final rule are $5.3 million. The
estimated annual costs to HM carriers and FMCSA are $4.8 million,
resulting in total discounted costs over a 10-year period of $33.9
million. The estimated annual benefits resulting from improved safety
derived from reduced accidental HM releases alone are $3.6 million,
which results in total discounted safety benefits over a 10-year period
of $25.3 million. Additional security benefits are also gained because
the rule's provisions will hamper terrorists. Although we cannot
predict the actual security benefits or the number and size of future
terrorist acts, the security benefits clearly would be immense if the
rule prevented a terrorist act even a fraction of the size of the Twin
Towers calamity. Further, based on the sensitivity analysis performed
for the security benefits of the rule, using terrorism costs assumed in
a recent RSPA rule establishing requirements for security plans, if the
permitting program has at least a one-in-ten-thousand chance of
stopping a terrorist attack annually, then security benefits would
total $2.5 million annually, or $17.5 million discounted over 10 years.
This results in a total net benefit to society. FMCSA also did not
quantify the rule's secondary benefits of avoiding property damage,
environmental damage, clean-up costs, and evacuations, because of the
uncertainty associated with these estimates.
The intent of this rulemaking is to enhance the safety and security
of HM shipments. This rule includes requirements for motor carriers of
certain HM to obtain a safety permit from FMCSA. In order to obtain a
permit, motor carriers must comply with safety and security standards
and establish a system for communicating with drivers either
telephonically or via electronic device. FMCSA will conduct carrier
assessments to ensure compliance with operational, safety, and security
standards. Carriers with less-than-Satisfactory safety ratings will be
prohibited from transporting HM materials requiring a permit.
The analysis presented in this regulatory evaluation focuses on
benefits and costs for a permit program covering only a certain group
of highly hazardous materials. The final rule adopts a slightly
expanded list comprised of the statutory list and additional explosive
and toxic by inhalation (TIH) materials in certain quantities as
appropriate. The list of materials requiring a permit in this final
rule is as follows:
1. Radioactive Materials--A highway route-controlled quantity of
Class 7 materials.
2. Explosives--More than 25kg (55 pounds) of a Division 1.1, 1.2 or
1.3 material, or an amount of a Division 1.5 material requiring a
placard under part 172, subpart F of Title 49 CFR.
3. Toxic by Inhalation (Division 2.3 and 6.1) Materials--Hazard
Zone A materials in a packaging with a capacity greater than 1 liter
(0.26 gallons); a shipment of Hazard Zone B materials in a bulk
packaging (capacity greater than 450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500) gallons.
4. A shipment of compressed or refrigerated liquid methane or
natural gas or other liquefied gas with a methane content of at least
85 percent in a bulk packaging having a capacity equal to or greater
than 13,248 L (3,500 gallons) for liquids or gases.
The first-year costs to implement the permit program established in
the final rule are $5.3 million. These include the one-time costs for
the permit application and, if needed, a compliance review. The
estimated annual costs to HM carriers and FMCSA are $4.8 million. The
total discounted costs over a 10-year period are $33.9 million.
The major driver of HM carrier costs is the cost to record and
maintain communication records. This cost item represents about 99
percent of the total annual costs to HM carriers to comply with the
permit program requirements.
The safety benefits were derived from the projected crash
reductions resulting from the permitting program. These total estimated
benefits are large because of the number of conventional crashes that
may be prevented.
Determining exact benefits of preventing a terrorist attack is
difficult. Those that are available offer only inexact comparisons. For
example, the benefit-cost analysis for RSPA's HM-232 final rule
indicates that the cost of
[[Page 39361]]
the attack on the Murrah Federal Building in Oklahoma City amounted to
approximately $1.5 billion. Clearly, the costs from the attacks of
September 11, 2001, are far greater than the attack on the Murrah
Federal Building.
FMCSA derived a scaled estimate of $25 billion as the cost of a
malicious hazardous materials incident. This figure is based upon the
lowest estimate reported of the most costly terrorist attack ever--the
September 11th attacks; the estimated cost of the Oklahoma City attack;
and the costs of other recent terrorist attacks occurring in the past
ten years. Based on this information, FMCSA prepared a simple
sensitivity analysis to produce a range of benefits for the security
portion of this rule. FMCSA uses a range of probability that the
permitting program would prevent a terrorist event using hazmat
regulated under the final rule. FMCSA uses the estimate of $25 billion
as the cost of an intentional release of hazardous materials covered by
the rule.
This sensitivity analysis shows that if the permitting rule has a
one-in-one-million chance of preventing a terrorist attack, then that
benefit is worth $25,000. If the rule has a one-in-one-hundred chance
of preventing a terrorist attack, the benefit falls to $250 million.
While it is difficult to determine the chance that the permitting
program would prevent or deter an intentional release, this type of
analysis demonstrates that because of the potential high cost of a
terrorist attack, efforts that may present even a small chance of
averting a terrorist attack can provide security benefits.
As shown in Table ES-1 below, the one-time costs for the carrier,
representing the costs of permit application and compliance review, are
$0.5 million. The estimated annual cost to HM carriers is $2.8 million.
The estimated annual cost to FMCSA is $2 million. These costs total
$5.3 million.
The annual safety benefit is $3.7 million. If we conservatively
estimate that the rule has a one-in-ten-thousand chance of stopping a
terrorist attack, we add an annual security benefit of $2.5 million.
This provides a total benefit of $6.2 million.
Table ES-1.--Summary of Benefits and Costs
----------------------------------------------------------------------------------------------------------------
Cost to HM carriers Annual benefits
----------------------------------------------------------------------------------
Annual cost to FMCSA Initial one- Accidental
time costs Annual costs releases International releases
----------------------------------------------------------------------------------------------------------------
$2 million................... $0.5 million.... $2.8 million.... $3.7 million... $25,000-$250 million
----------------------------------------------------------------------------------------------------------------
The total discounted cost to both FMCSA and HM carriers over a 10-
year period to implement the permit program is $33.9 million. The total
discounted safety benefit over a 10-year period is $26 million from
accidental releases alone. An additional amount of security benefit is
also gained but was not included in this ten-year estimation.
Despite the potential for benefits to exceed costs, there is a
significant difference in how benefits and costs are allocated. The
costs are assumed primarily by thousands of carriers, while most of the
benefits accrue to the general public. Furthermore, the analysis does
not account for some of the benefits that would flow from avoiding or
preventing major HM incidents. Major HM incidents may result in long-
term psychological and economic effects that are costly to a society
and economy. Although avoidance of these effects is a benefit that can
be measured in monetary terms, this analysis has not attempted to
calculate these benefits because of the great uncertainty associated
with estimating them.
FMCSA has prepared an in-depth regulatory analysis that further
explains the basis for determining the costs and benefits of this rule.
This cost-benefit analysis is available in the public docket (Docket
No. FMCSA-97-2180; formerly FHWA-97-2180) for this rule. The public
docket is located on the Docket Management System Web site: http://dms.dot.gov/search/searchFormSimple.cfm
.
Executive Order 13175 (Tribal Consultation)
FMCSA has analyzed this action under Executive Order 13175, dated
November 6, 2000, and believes the rule will not have substantial
direct effects on one or more Indian tribes; will not impose
substantial direct compliance costs on Indian tribal governments; and
will not preempt tribal law. Therefore, a tribal summary impact
statement is not required.
Executive Order 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this rule under Executive Order 13211, ``Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use.'' FMCSA has determined that this action will not
be a significant energy action under this Executive Order because it is
not likely to have a significant adverse effect on the supply,
distribution, or use of energy. Therefore, a Statement of Energy
Effects under Executive Order 13211 is not required.
Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.
1532, et seq.) requires each agency to assess the effects of its
regulatory actions on State, local, and tribal governments, and on the
private sector. Any agency promulgating a final rule that is likely to
result in a Federal mandate requiring expenditures by a State, local,
or tribal government or by the private sector of $100 million or more
in any one year must prepare a written statement incorporating various
assessments, estimates, and descriptions that are delineated in the
Act. FMCSA has determined that this rulemaking will not have an impact
of $100 million or more in any one year.
Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires FMCSA to evaluate the potential impacts of its HM permitting
rule on small businesses, organizations, and governmental
jurisdictions. Whenever FMCSA publishes a final rule, it must make
available to the public for comment the flexibility analysis that
evaluates the impact of the proposed rule on small entities. Section
603(b) of the Act specifies that the contents of the Regulatory
Flexibility Analysis (RFA) include the following five requirements:
1. Description of the reasons why action by the agency is being
considered;
2. Statement of the objectives of, and legal basis for, the final
rule;
3. Description of and, where feasible, an estimate of the number of
small entities to which the final rule will apply;
4. Description of the projected reporting, recordkeeping and other
[[Page 39362]]
compliance requirements of the rule, including an estimate of the
classes of small entities which will be subject to the requirement and
the type of professional skills necessary for preparation of the report
or record; and
5. Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the final
rule.
In addition to the above requirements, a description of any
significant alternatives to the final rule, which accomplish the stated
objectives of applicable statutes and which minimize any significant
economic impact of the final rule on small entities, is also included
in the analysis. The following sections discuss the various elements of
the regulatory flexibility analysis outlined above.
(1) Reasons why action by the agency is being considered. FMCSA
has initiated a rulemaking mandated by Congress for a new HM truck
transportation permit system. The intent of the final rulemaking is to
enhance the safety and security of high-hazard HM shipments. FMCSA is
taking this action because certain high-hazardous materials, if
released either accidentally or intentionally during transportation,
have the potential to be used in terrorist attacks or present a greater
hazard in the event of an accident.
(2) Objectives of and legal basis for the final rule. The objective
of FMCSA's permit program is to provide oversight of the safety and
security of carriers transporting selected high-hazard HM. The
permitting program will impose additional requirements and provide
additional oversight of these carriers. Oversight will include imposing
operational security requirements, setting minimum safety and security
standards, and making safety and security assessments of carriers to
ensure compliance with operational, safety, and security standards. The
permit program is intended to improve the safety and security of HM
shipments and thus reduce deaths, injuries, and related damages
stemming from accidental and intentional incidents involving these
commodities.
Motor Carrier Safety Permits (49 U.S.C. 5109) requires that FMCSA
permit carriers that transport Divisions 1.1, 1.2, or 1.3 explosives,
liquefied natural gas, extremely toxic by inhalation hazardous
materials, and highway route-controlled quantities (HRCQ) of
radioactive materials. Section 5109 allows FMCSA to permit other HM if
appropriate. Section (E), part (2), of 49 U.S.C. 5109 enables the
Secretary of Transportation to determine the standards for deciding the
duration, terms, and limitations of a safety permit.
(3) Description and estimate of the number of small entities. The
final rule affects intrastate and interstate carriers of HM. The number
of small carriers is determined based on the Small Business
Administration (SBA) definition used for the RSPA registration file.
RSPA flags the small carriers using the SBA definition to indicate if
they are qualified based on the number of employees and business
dollars. The number of small carriers that could potentially be
affected by the new permit system is determined by the implementation
of the amounts and types of materials covered. This list is described
below.
List of Covered Materials
The permitting program covers the statutory or congressionally
required list of HM under 49 U.S.C. 5109. This legislation requires
FMCSA to permit carriers that transport these types and amounts of HM.
In addition to this statutory list, FMCSA has modified the list to
include bulk quantities of Division 1.5 materials and toxic--by-
inhalation materials that include Zone B, C, or D materials in bulk
quantities. The list of covered materials is as follows:
More than 25 kg (55 pounds) of Division 1.1, 1.2, or 1.3
explosives, or an amount of a Division 1.5 material requiring a placard
under 49 CFR part 172, subpart F.
Radioactive Materials--A highway route-controlled quantity
of Class 7 materials.
Toxic-by-Inhalation (Division 2.3 and 6.1) Materials--
Hazard Zone A materials in a packaging with a capacity greater than 1
liter (0.26 gallons); a shipment of Hazard Zone B materials in a bulk
packaging (capacity greater than 450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500) gallons.
A shipment of compressed or refrigerated liquid methane or
natural gas or other liquefied gas with a methane content of at least
85 percent, in a bulk packaging having a capacity equal to or greater
than 13,248 L (3,500 gallons) for liquids or gases.
Table 1 shows the number of small carriers that could potentially
be affected. Small carriers are defined as carriers with 20 power units
or less. About 78 percent of the carriers included for this list of
materials are designated as small carriers.
Table 1.--Number of Small Carriers
------------------------------------------------------------------------
Number of small
Carriers carriers Total carriers
------------------------------------------------------------------------
Total Number of Carriers for List of 2,436 3,131
Materials Covered..................
Number of Interstate Carriers....... 1,664 2,139
Number of Intrastate Carriers....... 772 992
------------------------------------------------------------------------
In addition to small carriers, other small businesses and small
entities could potentially be affected by the permitting system. Small
businesses that provide services to small carriers, supply product for
shipment, or receive shipments also could be affected by the rule. The
customers and suppliers of small carriers could be adversely affected
if a carrier were prohibited from shipping certain HM because a permit
had been denied or revoked. Similarly, local government entities such
as police could be affected by the proposed HM permitting requirements.
The police could be notified by TSA anytime a planned communication was
not received from the driver of a permitted HM vehicle. This probably
would require the expenditure of law enforcement resources to
investigate the communication lapse. The number of local police
entities that would be involved is difficult to estimate before the
permit program is implemented. The number of small businesses that
potentially could be affected by the new permit rule is also difficult
to estimate without further research.
(4) Description of reporting, recordkeeping, and other compliance
requirements. The compliance requirements include an estimate of the
classes of small entities that will be subject to the requirement and
the type of professional skills necessary for
[[Page 39363]]
preparation of the report or record. The reporting, recordkeeping and
other compliance requirements of the final rule are addressed in the
following discussion.
The initial application for the permit will include the following
elements:
1. Submitting a new MCS-150B form. This form contains all fields on
the current MCS-150 form, which will need to be updated, and additional
fields unique to the MCS-150B form.
2. Certifying that all HM incidents have been reported to DOT.
3. Certifying the carriers have the required security plan and
training.
4. Certifying compliance with the communication requirements.
5. Ensuring the carrier's safety and security records are adequate.
Carriers will need to devote some effort to completing a permit
application. Each interstate carrier, whether small or large, will have
to spend about six additional minutes preparing the permit application
(for the fields that are not on the existing MCS-150 form). This
amounts to approximately $2.10 of clerical labor. For an intrastate
carrier, the expenditure is approximately $9.10, because the carrier
will not previously have been required to complete the MCS-150B form
(26 minutes for the form). These expenditures apply to the first year.
However, much of the effort in the permit application will be performed
by FMCSA. FMCSA will check accident reporting and safety facts by using
the MCMIS and Hazardous Materials Information System (HMIS) databases.
FMCSA will also determine that the application is complete and that
safety records are adequate.
If safety records are not adequate, then an on-site Compliance
Review (CR) will be performed to determine if a permit should be
issued. This activity is likely to result in additional paperwork for
carriers rated either Unsatisfactory or Conditional, as these carriers
will be required to undergo a new CR. The Benefit-Cost Analysis of
Permitting Options report estimates that each carrier requiring a new
CR will have to spend at least $182 of clerical time for completion of
paperwork.
In addition to completing a permit application, the applicable HM
carriers in the HM permit program will have to do the following:
Develop a ``plan'' to meet the HM permit requirements that
drivers be able to easily contact the carrier and/or law enforcement
agencies in emergencies. Document required communications between the
driver and dispatcher, and maintain written communication records. The
cost per shipment was estimated at about $1.75 each trip.
Carriers in the HM permitting program will be required to
renew their permit application biennially. This will require about 6
minutes of clerical time for an interstate carrier and 16 minutes of
clerical time for an intrastate carrier. The actual permit renewal will
consist of checking the necessary boxes on the application for renewal.
In summary, the HM permitting rules will create additional
responsibilities for small carriers. These responsibilities will also
produce additional labor costs. However, FMCSA believes that the great
majority of small carriers will use existing staff to handle the permit
program duties.
For this Regulatory Flexibility Analysis, costs are cited for the
small carriers identified in Table 1. The cost profile for small
carriers should be different from that for large carriers. This is
because large carriers have more trucks, and consequently move a
greater volume of shipments. Data for fleet size and number of miles
traveled in the Vehicle Inventory and Use Survey (VIUS) were used to
estimate the proportion of shipment volume moved by small carriers. In
VIUS, carriers with fleets of greater than 25 trucks accounted for
about 56 percent of the mileage traveled. Based on assumptions that the
number of miles traveled approximates shipment volume, and that large
carriers may make more long-distance trips than small carriers, the
cost analysis assigns 50 percent of all trips to small carriers.
Table 2 summarizes the first-year and annual costs for a small
carrier.
Table 2.--Cost Summary per Small Carrier
----------------------------------------------------------------------------------------------------------------
Cost per
Cost per carrier for
Permit-related activity Unit cost carrier for successive
first year years
----------------------------------------------------------------------------------------------------------------
Permit application:
Interstate carrier....................... $21/hour \1\ \2\............... $1.05 N/A
Intrastate carrier....................... $21/hour....................... 9.10 N/A
Permit renewal:
Interstate carrier....................... $21/hour....................... N/A 1.05
Intrastate carrier....................... $21/hour....................... N/A 2.80
Safety record compliance..................... $182/carrier \3\............... 182 N/A
Communication recordkeeping requirements..... $1.75/trip..................... 1,129 1,129
----------------------------------
Worst Case Total Cost per Small ............................... 1,321 1,133
Carrier \4\.
----------------------------------------------------------------------------------------------------------------
\1\ Unit cost is assumed as clerical hourly pay of $15/hour plus fringe benefits (40%) for a total of $21/hour.
\2\ Assumes that one-half of interstate small carriers will require permit for the first year.
\3\ Applies to all small carriers without a SafeStat rating.
\4\ Assumes an intrastate carrier that requires a compliance review.
A small carrier could face two major negative impacts. First, the
carrier could be prohibited from shipping certain HM because a permit
was denied or revoked. Aside from the loss of contracts and income,
this action would likely force the carrier to expend considerable
effort in addressing and correcting problem areas and successfully
completing the permit application process. The second impact would be
financial, related to compliance with the HM permit process. For all
but the most marginal small-carrier operations--that is, those already
suffering from poor cash flow and a small profit margin--an initial
impact of about $1,300 or an annual impact of about $1,100 would not be
significant. This added expenditure is unlikely to prevent the
overwhelming majority of small carriers from participating in the HM
trucking business.
(5) Relevant Federal rules which may duplicate, overlap, or
conflict with the final rule. Two statutory provisions, 49 U.S.C 5119
and 5105(e), could conflict with the HM permit rule if the rule did not
specifically reference the provisions.
[[Page 39364]]
First, section 5119 authorizes States to participate in the
Alliance for Uniform HM Transportation program (Alliance). FMCSA
intends to automatically issue a Federal permit to a carrier that
obtains a permit from a State having a program equivalent to the
Federal permit program. Therefore, a comparable State program will be
deemed equivalent to the Federal HM Permit Program and no statutory
conflict will exist. However, the motor carrier must still possess at
least a Satisfactory safety rating. If a carrier's rating is less than
Satisfactory, the permit may be suspended or revoked until a
Satisfactory rating is achieved.
The second potential conflict is the Point of Origin Inspections
for Highway Route-Controlled Quantities (HRCQ) shipments required by 49
U.S.C. 5105(e). These inspections are currently required to be
conducted via the CVSA Level VI Enhanced Radioactive Materials
Inspection Program, which fulfills the requirements of 49 U.S.C.
5105(e). Today's final rule explicitly cites this requirement for HRCQ
and thus prevents any statutory conflict.
Conclusion
The final rule is not anticipated to have any significant impact on
the great majority of small carriers transporting HM covered by the
proposed HM permit. As discussed above, the approximately 2,400 small
carriers will incur some additional costs to implement the permitting
program. A small carrier transporting HM would incur an annual cost of
about $1,100 to comply with the rule. This added expenditure is
unlikely to prevent the overwhelming majority of small carriers from
participating in the HM trucking business. For these small carriers,
the cost increase will not be reflected in significantly lower carrier
profits or higher charges to suppliers, shippers, or other customers.
Small businesses that work with the small carriers would not
ordinarily be affected by the permit rules during the course of normal
business operations. These small businesses would experience a negative
impact only if a small carrier they dealt with were seriously harmed by
the permit program and forced either to cut back its business volume or
cease operations entirely. Since HM permit holders are unlikely to
experience consequences of this nature if a required permit is rejected
or suspended, small businesses that work with the carriers are also
unlikely to be affected.
Small governmental entities such as local police departments may
receive some additional calls and may need to prepare some reports if
the permit system's communications requirements mandate that a
particular truck be traced and/or investigated. These calls and reports
are not anticipated to significantly affect the workload or staffing of
these local entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520), a
Federal agency must obtain approval from the Office of Management and
Budget (OMB) for each collection of information it conducts, sponsors,
or requires through regulations. FMCSA analyzed this final rule and
determined that its implementation will increase the existing
information collection (IC) burden on motor carriers, both interstate
and intrastate. The final rule adopts a slightly expanded list of HM
requiring a permit, comprised of the statutory list and additional
explosive and toxic by inhalation (TIH) materials in certain quantities
as appropriate. Specifically, a permit will be required for:
1. Radioactive Materials--A highway route-controlled quantity of
Class 7 materials.
2. Explosives--More than 25 kg (55 pounds) of a Division 1.1, 1.2,
or 1.3 material, or an amount of a Division 1.5 material requiring a
placard under title 49 CFR, part 172, subpart F.
3. Toxic-by-Inhalation (Division 2.3 and 6.1) Materials--Hazard
Zone A materials in a packaging with a capacity greater than 1 liter
(0.26 gallons); a shipment of Hazard Zone B materials in a bulk
packaging (capacity greater than 450 L [119 gallons]); or a shipment of
Hazard Zone C or D materials in a bulk packaging having a capacity
equal to or greater than 13,248 L (3,500) gallons.
4. A shipment of compressed or refrigerated liquid methane or
natural gas or other liquefied gas with a methane content of at least
85 percent, in a bulk packaging having a capacity equal to or greater
than 13,248 L (3,500 gallons) for liquids or gases.
The burden on industry was determined for this option and is
described in detail in the Regulatory Flexibility Analysis report.
Change to Current Collection
One currently approved information collection is affected by this
final rule: OMB Control No. 2126-0013, titled ``Motor Carrier
Identification Report,'' which is approved for 74,250 burden hours.
This final rule would increase the IC burden hours for OMB Control No.
2126-0013 by extending the data collection to 992 intrastate motor
carriers (both small and large) that transport the permitted hazardous
materials. FMCSA estimates that interstate motor carriers that have
already completed MCS-150 forms will require about 6 minutes to
complete and file an application for registration, and that intrastate
carriers that have not completed MCS-150 forms will require about 26
minutes (0.43 hours). Using RSPA's registration database to obtain the
number of affected intrastate carriers, the burden hour increase for
this collection is 430 hours (992 intrastate carriers x 26 minutes/60
minutes per hour = 430 hours).
Thus, for existing OMB Control No. 2126-0013, the burden hours
would be increased to 74,680 (74,250 current + 430 additional), and the
number of respondents would increase to 549,992 (549,000 current + 992
additional).
The permitting program requires carriers to maintain written
records of communication between drivers and their carriers. This
communication must take place at least twice a day. The types of
information required include time and location of communication. The
communication recordkeeping requirements were assumed to take 5 minutes
per trip of a clerk's time at an hourly pay of $15 (plus 40 percent for
fringe benefits). The total burden hours were based on 1,570,391
estimated annual trips for carriers. This annual burden is 41.80 hours
per carrier (5 minutes/60 minutes per hour x 1,570,391/3,131 carriers).
The estimated IC burden hours are summarized in Table 3 below.
These values reflect the additional burden that the final rule will
place on the affected carriers and are derived from MCMIS and RSPA data
as mentioned above.
Table 3.--Burden Calculations
----------------------------------------------------------------------------------------------------------------
Carriers Burden hours
-------------------------------------------------------------------------------
Per carrier
Intrastate Interstate Total \1\ Total
----------------------------------------------------------------------------------------------------------------
Increased reporting under OMB 992 N/A 992 0.43 430
Control No. 2126-0013..........
[[Page 39365]]
Maintaining communications 992 2,139 3,131 41.80 130,866
records........................
-----------------
Total....................... .............. .............. .............. .............. 131,296
----------------------------------------------------------------------------------------------------------------
\1\ Figures are rounded to the nearest hundredth; unrounded numbers are used in calculations.
As shown in Table 3, the total estimated first-year burden is
131,296 hours.
It is estimated that burden hours in subsequent years would
primarily be the time to provide shipment estimates and communication
records, as also indicated in Table 3.
New Information Collection Activity
This final rule will also establish a new data collection for all
motor carriers that transport any of the permitted hazardous materials.
Three provisions of the final rule would not require any substantive
increase in the reporting burden:
1. To certify that all hazardous materials incidents have been
reported to RSPA;
2. To certify that the communication requirements of this rule have
been met; and
3. To certify that the security plan and training requirements have
been met.
All carriers of hazardous materials requiring a permit under this
rule are subject to RSPA's registration requirements and should already
have a valid registration number. The certifications required under
this rule are simple affirmations that the requirements have been met,
without the need for providing supporting documentation. The
affirmation is included in the permit application form.
For purposes of calculating the burden hours, RSPA registration
data were used for estimating the number of HM carriers, both
interstate and intrastate, that transport the listed types of HM under
each permitting option.
The biennial permit renewal requires carriers only to check off a
few additional boxes (relative to the existing MCS-150 form) on the
MCS-150B form. The burden hours to check off the additional boxes on
the MCS-150B form are small--about 6 minutes. Interstate carriers
already must complete the MCS-150 and will only incur an additional 6-
minute burden; however, intrastate carriers have never completed an
MCS-150 and will need about 16 minutes (0.27 hours) to complete the
permit renewal.
The burden hours for the communication records will be the same for
all years. The annual burden hour estimate of 131,105 is shown in Table
4. As only one-half of all carriers will be required to renew their
permit application each year, the per-carrier burden hours shown have
been divided by two to compute the annual average. The annual burden
hours are the sum of the burden hours for permit renewals ([992
intrastate carriers x 16 minutes + 2,139 interstate carriers x 6
minutes]/60 minutes per hour x \1/2\ of all carriers each year = 239
hours) and communication records.
Table 4.--Annual Burden Calculations
--------------------------------------------------------------------------------------------------------------------------------------------------------
Carriers Burden hours
--------------------------------------------------------------------------------------
Per carrier \1\
Intrastate Interstate ------------------------------------ Total
Intrastate Interstate
--------------------------------------------------------------------------------------------------------------------------------------------------------
Increased reporting under OMB Control No. 2126-xxxx.............. 992 2,139 0.13 0.05 239
Maintaining communications records............................... 992 2,139 41.80 41.80 130,866
------------------
Total........................................................ ............... ............... ................ ................ 131,105
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Figures are rounded to the nearest hundredth; unrounded numbers are used in calculations.
The first-year and annual burden hours are summarized together in
Table 5.
Table 5.--Summary of Burden Hours
------------------------------------------------------------------------
Burden hours
-------------------------------------------------------------------------
First-year Annual
------------------------------------------------------------------------
131,296................................................. 131,105
------------------------------------------------------------------------
We estimate that the new total information collection and
recordkeeping burden resulting from the additional Motor Carrier
Identification Reports and permit applications under this rule are as
follows:
Motor Carrier Identification Report
[OMB No. 2126-0013]
Total Annual Number of Respondents: 549,992.
Total Annual Burden Hours: 74,680.
Hazardous Materials Permit
[OMB No. 2126-xxxx]
Total Annual Number of Respondents: 3,131.
Total Annual Burden Hours: 130,866.
As noted above, the Paperwork Reduction Act requires that Federal
agencies obtain approval from OMB for each collection of information
they conduct, sponsor or require through regulations. We are
coordinating this final rule with a submission to OMB in accordance
with the Act. Thus, comments on the additional Motor Carrier
Identification Reports, specifically the MCS-150B, and permit
applications should go to the Office of Management and Budget. Send
comments to: Office of Information and Regulatory Affairs, Office of
Management and Budget, 725 Seventeenth Street, NW, Washington, DC
20503, Attention: DOT Desk Officer. We particularly request your
comments on whether the collection of information is useful; the
accuracy of the estimated
[[Page 39366]]
burden for the information collected; ways to enhance the quality,
utility, and clarity of the information collected; and ways to minimize
the burden of the collection of information on respondents, including
the use of automated collection techniques or other forms of
information technology.
National Environmental Policy Act
FMCSA analyzed this final rule for the purpose of the National
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.) and
has determined under the agency's National Environmental Policy Act
Implementing Procedures, FMCSA Order 5610.1C (published at 69 FR 9680
[Mar. 1, 2004] with an effective date of March 30, 2004) that this
action is categorically excluded (CE) under Appendix 2, paragraph 6.d
of the Order from further environmental documentation. That CE relates
to establishing regulations and actions concerning the training,
qualifying, licensing, certifying, and managing of personnel. The
agency believes that the action includes no extraordinary circumstances
that will have any effect on the quality of the environment.
Nevertheless, because the rulemaking concerns hazardous materials
transportation, the agency prepared an Environmental Assessment
pursuant to Appendices 5 and 6 of the Order, and placed it in the
public docket for this rulemaking. You may access the EA on the DMS Web
site at http://dms.dot.gov. We received no comments on the EA in
response to the August 19, 2003, supplemental notice of proposed
rulemaking. Based on the findings of the EA, FMCSA has determined that
this rulemaking does not pose any significant negative impacts to the
environment and may result in a net benefit from increased protection
and monitoring of hazardous materials shipments. Thus, the action does
not require an environmental impact statement.
We have also analyzed this rule under section 176(c) of the Clean
Air Act (CAA), as amended (42 U.S.C. 7401 et seq.), and implementing
regulations promulgated by the Environmental Protection Agency. We
performed a conformity analysis of the CAA according to the procedures
outlined in appendix 14 of FMCSA Order 5610.1C. This rule will not
result in any emissions increase, nor will it have any potential to
result in emissions that are above the general conformity rule's de
minimis emission threshold levels. Moreover, it is reasonably
foreseeable that the rule change will not increase total CMV mileage,
change the routing of CMVs, change how CMVs operate, or change the CMV
fleet-mix of motor carriers. This action merely establishes that a
carrier desiring to transport certain hazardous materials in commerce
must obtain a safety permit from the Department and adhere to
additional communication standards.
Executive Order 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of Executive Order 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
Executive Order 13132 (Federalism)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 13132, dated August 4, 1999.
Federal hazardous materials transportation law allows States,
political subdivisions, and Indian tribes to continue their permit
requirements after the implementation of a Federal safety permit
program. To the extent a State permit program is equivalent to the
Federal requirements, no preemption issues would arise. To the extent
there are differences between Federal and non-Federal requirements, the
preemption provisions in 49 U.S.C. 5125 will continue to apply to non-
Federal permit requirements, just as those criteria have applied in the
past.
FMCSA may preempt some State permitting programs for materials
covered in this final rule. This preemption is necessary to conform to
the statutory requirements, but it will have a small overall effect on
State permit programs. For these reasons, FMCSA has determined this
rule does not have a substantial direct effect on, or sufficient
federalism implications for, the States, nor will it limit the
policymaking discretion of the States.
Executive Order 13045 (Protection of Children)
FMCSA has analyzed this action under Executive Order 13045,
``Protection of Children from Environmental Health Risks and Safety
Risks'' (62 FR 1985, Apr. 23, 1997). The rule will not present an
environmental risk to health or safety that may disproportionately
affect children.
Executive Order 12630 (Taking of Private Property)
This rule will not effect a taking of private property or otherwise
have taking implications under Executive Order 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217 Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities apply to this program.
Executive Order 13166 (Limited English Proficiency)
Executive Order 13166, ``Improving Access to Services for Persons
with Limited English Proficiency'' (LEP), requires each Federal agency
to examine the services it provides and to develop reasonable measures
to ensure that persons seeking government services but limited in their
English proficiency can meaningfully access these services, consistent
with, and without unduly burdening, the fundamental mission of the
agency. Its purpose is to clarify for Federal fund recipients the steps
those recipients can take to avoid administering programs in a way that
results in discrimination on the basis of national origin. FMCSA
believes that this action complies with the principles enunciated in
the Executive Order.
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety,
Incorporation by reference, Mexico, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping requirements.
49 CFR Part 386
Administrative practice and procedure, Brokers, Freight forwarders,
Hazardous materials transportation, Highway safety, Motor carriers,
Motor vehicle safety, Penalties.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, reporting and recordkeeping requirements.
0
Accordingly, FMCSA amends parts 385, 386, and 390 of title 49, Code of
Federal Regulations, as follows:
PART 385--SAFETY FITNESS PROCEDURES
0
1. Revise the authority citation for part 385 to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(e), 5109, 5113,
13901-13905, 31136, 31144, 31148, and 31502; Sec. 350 of Pub. L.
107-87; and 49 CFR 1.73.
[[Page 39367]]
0
2. Amend Sec. 385.1 by redesignating paragraph (c) as paragraph (d)
and by adding a new paragraph (c) to read as follows:
Sec. 385.1 Purpose and scope.
* * * * *
(c) This part establishes the safety permit program for a motor
carrier to transport the types and quantities of hazardous materials
listed in Sec. 385.403.
* * * * *
0
3. Amend Sec. 385.3 by revising the definition of the terms
``applicable safety regulations or requirements'' and ``commercial
motor vehicle'' and adding a new acronym ``RSPA'' in alphabetical order
to read as follows:
Sec. 385.3 Definitions and acronyms.
Applicable safety regulations or requirements means 49 CFR chapter
III, subchapter B--Federal Motor Carrier Safety Regulations or, if the
carrier is an intrastate motor carrier subject to the hazardous
materials safety permit requirements in subpart E of this part, the
equivalent State standards; and 49 CFR chapter I, subchapter C--
Hazardous Materials Regulations.
* * * * *
Commercial motor vehicle shall have the same meaning as described
in Sec. 390.5 of this subchapter, except that this definition will
also apply to intrastate motor vehicles subject to the hazardous
materials safety permit requirements of subpart E of this part.
* * * * *
RSPA means the Research and Special Programs Administration.
* * * * *
0
4. Add a new Sec. 385.4 to read as follows:
Sec. 385.4 Matter incorporated by reference.
(a) Incorporation by reference. Part 385 includes references to
certain matter or materials, as listed in paragraph (b) of this
section. The text of the materials is not included in the regulations
contained in part 385. The materials are hereby made a part of the
regulations in part 385. The Director of the Federal Register has
approved the materials incorporated by reference in accordance with 5
U.S.C. 552(a) and 1 CFR part 51. For materials subject to change, only
the specific version in the regulation is incorporated. Material is
incorporated as it exists on the date of the approval and a notice of
any changes in these materials will be published in the Federal
Register.
(b) Matter or materials referenced in part 385. The matter or
materials in this paragraph are incorporated by reference in the
corresponding sections noted.
(1) ``North American Standard Out-of-Service Criteria and Level VI
Inspection Procedures and Out-of-Service Criteria for Commercial
Highway Vehicles Transporting Transuranics and Highway Route Controlled
Quantities of Radioactive Materials as defined in 49 CFR Part
173.403,'' January 1, 2004. Information and copies may be obtained from
the Commercial Vehicle Safety Alliance, 1101 17th Street, NW, Suite
803, Washington, DC 20036. Phone number (202) 775-1623.
(2) All of the materials incorporated by reference are available
for inspection at: The Federal Motor Carrier Safety Administration,
Office of Enforcement and Compliance, 400 Seventh Street, SW,
Washington, DC 20590; and the National Archives and Records
Administration (NARA). For information on the availability of this
material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html
.
0
5. In Sec. 385.5 revise the introductory text to read as follows:
Sec. 385.5 Safety fitness standard.
The Satisfactory safety rating is based on the degree of compliance
with the safety fitness standard for motor carriers. For intrastate
motor carriers subject to the hazardous materials safety permit
requirements of subpart E of this part, the motor carrier must meet the
equivalent State requirements. To meet the safety fitness standard, the
motor carrier must demonstrate it has adequate safety management
controls in place, which function effectively to ensure acceptable
compliance with applicable safety requirements to reduce the risk
associated with:
* * * * *
0
6. Add a new subpart E to part 385 to read as follows:
Subpart E--Hazardous Materials Safety Permits
Sec.
385.401 What is the purpose and scope of this subpart?
385.402 What definitions are used in this subpart?
385.403 Who must hold a safety permit?
385.405 How does a motor carrier apply for a safety permit?
385.407 What conditions must a motor carrier satisfy for FMCSA to
issue a safety permit?
385.409 When may a temporary safety permit be issued to a motor
carrier?
385.411 Must a motor carrier obtain a safety permit if it has a
State permit?
385.413 What happens if a motor carrier receives a proposed safety
rating that is less than Satisfactory?
385.415 What operational requirements apply to the transportation of
a hazardous material for which a permit is required?
385.417 Is a motor carrier's safety permit number available to
others?
385.419 How long is a safety permit effective?
385.421 Under what circumstances will a safety permit be subject to
revocation or suspension by FMCSA?
385.423 Does a motor carrier have a right to an administrative
review of a denial, suspension, or revocation of a safety permit?
Subpart E--Hazardous Materials Safety Permits
Sec. 385.401 What is the purpose and scope of this subpart?
(a) This subpart contains the requirements for obtaining and
maintaining a safety permit to transport certain hazardous materials.
No one may transport the materials listed in Sec. 385.403