[Federal Register: July 28, 2003 (Volume 68, Number 144)]
[Notices]
[Page 44378-44379]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr28jy03-119]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2003-15642]
Safety Auditor Certification; Extension of Statutory Compliance
Date
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of extension of statutory compliance date.
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SUMMARY: The FMCSA is required by law to ensure that all safety audits
or compliance reviews of motor carriers conducted after December 31,
2002 be conducted by duly certified personnel. The Secretary of
Transportation is authorized to extend this deadline until December 31,
2003 by notifying Congress that implementation of this requirement
cannot be achieved by the initial deadline, and stating the reasons. By
this document the FMCSA is notifying the public that on July 17, 2003
the Secretary of Transportation gave notice to Congress that he is
extending the deadline to December 31, 2003. The extension is necessary
because of a recent Federal court decision that set aside the FMCSA
rule establishing procedures for certifying personnel to conduct safety
reviews.
DATES: The Secretary of Transportation has extended the statutory
deadline for 49 U.S.C. 31148(b) until December 31, 2003.
FOR FURTHER INFORMATION CONTACT: Mr. Robert Schultz, Jr., Office of Bus
& Truck Standards and Operations, (202) 366-4001, Federal Motor Carrier
Safety Administration, 400 Seventh Street, SW., Room 8301, 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:
Background
On December 9, 1999, the President signed the Motor Carrier Safety
Improvement Act of 1999 (MCSIA)(Pub. L. 106-159). Section 210 of MCSIA
requires that all new entrant motor carriers, both foreign and
domestic, receive safety audits within 18 months of commencing
operations in interstate or foreign commerce. Section 211 of MCSIA
requires the Secretary of Transportation to complete a rulemaking to
improve training and provide for the certification of motor carrier
safety auditors to conduct safety inspection audits and reviews. The
legislation also gives the Secretary oversight responsibility for these
motor carrier auditors and investigators, including the authority to
decertify them.
As enacted by section 211(a), 49 U.S.C. 31148(b) and (c) read as
follows:
(b) CERTIFIED INSPECTION AUDIT REQUIREMENT.--Not later than one
year after completion of the Rulemaking required by subsection (a),
any safety inspection audit or review required by, or based on the
authority of, this chapter or chapter 5, 313, or 315 of this title
and performed after December 31, 2002, shall be conducted by--
(1) a motor carrier safety auditor certified under subsection
(a); or
(2) a Federal or State employee who, on the date of the
enactment of this section, was qualified to perform such an audit or
review.
(c) EXTENSION.--If the Secretary determines that subsection (b)
cannot be implemented within the 1-year period established by that
subsection and notifies the Committee on Commerce, Science, and
Transportation of the Senate and the Committee on Transportation and
Infrastructure of the House of Representatives of the determination
and the reasons therefor, the Secretary may extend the deadline for
compliance with subsection (b) by not more than 12 months.
On March 19, 2002, the FMCSA published an Interim Final Rule
implementing section 211 (the auditor certification rule) by
establishing three types of certification: (1) Certification to conduct
safety audits, (2) certification to conduct compliance reviews, and (3)
certification to conduct roadside inspections (67 FR 12776). This rule
was primarily designed to respond to the increase in audits
necessitated by the new entrant requirements of Section 210 of MCSIA.
However, publication of the rule was one of several conditions imposed
in the 2002 DOT Appropriations Act (Pub. L. 107-87), which had to be
met before FMCSA could begin processing applications to allow Mexico-
domiciled motor carriers to operate in the United States beyond the
commercial zones along the United States-Mexico border in accordance
with the North American Free Trade Agreement (NAFTA). Another condition
imposed by the Appropriations Act was FMCSA publication of a rule
implementing section 210 of MCSIA. An Interim Final Rule establishing
procedures for increasing FMCSA's safety scrutiny of new entrant motor
carriers, including standards and procedures regarding the safety
audits mandated by section 210, was published on May 13, 2002 (67 FR
31978) and became effective on January 1, 2003.
FMCSA hired and trained over 200 people to perform compliance
reviews, safety audits, and vehicle inspections. However, most audits
of new entrant motor carriers are to be undertaken by State employees
under the Motor Carrier Safety Assistance Program (MCSAP).
On January 16, 2003, the U.S. Court of Appeals for the Ninth
Circuit set aside the auditor certification rule and two other FMCSA
rules which established application and safety monitoring procedures
for Mexico-domiciled motor carriers seeking authority to operate in the
United States. The Court's ruling was based on its conclusion that
FMCSA failed to comply with statutory environmental impact analysis
requirements in developing these regulations. Public Citizen v. Dept.
of Transportation, 316 F.3d 1002. The Department of Transportation
filed a petition for rehearing with the Ninth Circuit, but this
petition was denied on April 10, 2003. Consequently, the Court's
mandate setting aside the three rules took effect on April 18, 2003.
As noted above, section 210 of the MCSIA requires that all new
entrant motor carriers, both foreign and domestic, receive safety
audits within 18 months of commencing operations in interstate or
foreign commerce. As a result of the Ninth Circuit decision in Public
Citizen, FMCSA and its State partners will not be able to hire and
train additional personnel to conduct motor carrier safety audits,
reviews or inspections, thereby impairing their ability to comply with
the statutory mandate regarding new entrant motor carriers. The
consequent reduction of
[[Page 44379]]
Federal and State oversight activities will likely have an adverse
impact on public safety.
For the reasons stated above, the Secretary of Transportation has
determined that it is necessary to extend the compliance date
established by 49 U.S.C. 31148(b) to December 31, 2003, so that FMCSA
and its State partners can continue to carry out their statutory
responsibilities while the Department of Transportation acts to comply
with applicable environmental laws before implementing procedures for
certification of safety auditors. This extension is retroactive to
January 1, 2003.
On July 17, 2003, the Secretary of Transportation sent letters to
the Senate Committee on Commerce, Science, and Transportation and the
House of Representatives' Committee on Transportation and
Infrastructure notifying them that he had extended the deadline for
complying with the requirements of 49 U.S.C. 31148(b) to December 31,
2003.
Issued on: July 22, 2003.
Annette M. Sandberg,
Acting Administrator.
[FR Doc. 03-19150 Filed 7-25-03; 8:45 am]
