FR Doc 03-24979
[Federal Register: October 2, 2003 (Volume 68, Number 191)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2001-11060]
Availability of an Environmental Assessment for the Certification
of Safety Auditors, Safety Investigators, and Safety Inspectors Interim
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of availability; request for comments.
SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA)
announces the availability of the Environmental Assessment for the
Certification of Safety Auditors, Safety Investigators, and Safety
Inspectors interim final rule (67 FR 12776, Mar. 19, 2002) (commonly
referred to as the ``Certification'' rule). This announcement is
pursuant to the National Environmental Policy Act of 1969 (NEPA), as
amended; the Council on Environmental Quality Regulations implementing
NEPA (40 CFR parts 1500-1508); and U.S. Department of Transportation
(DOT) Order 5610.1C, Procedures for Considering Environmental Impacts,
dated September 18, 1979, as amended July 13, 1982, and July 30, 1985.
The Certification rule was one of three interim final rules set aside
by the U.S. Court of Appeals for the Ninth Circuit on January 16, 2003.
The court concluded that FMCSA failed to comply with statutory
environmental impact analysis requirements in developing these rules.
Accordingly, FMCSA has analyzed the potential environmental impacts
from implementation of the Certification rule. The agency has concluded
that implementing the rule's requirements would have no adverse
environmental consequences and in fact would be likely to have a
positive, if minimal, impact on the affected environment.
DATES: Submit comments on or before November 3, 2003.
ADDRESSES: You may submit comments identified by DOT DMS Docket Number
FMCSA-2001-11060 by any of the following methods:
[sbull] Web site: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov.
Follow the instructions for submitting comments on the DOT electronic docket site.
[sbull] Fax: 1-202-493-2251.
[sbull] Mail: Docket Management Facility, U.S. Department of
Transportation, 400 Seventh Street, SW, Nassif Building, Room PL-401,
Washington, DC 20590-0001.
[sbull] Hand Delivery: Room PL-401 on the plaza level of the Nassif
Building, 400 Seventh Street, SW, Washington, DC, between 9 a.m. and 5
p.m., Monday through Friday, except Federal holidays.
[sbull] Federal eRulemaking Portal: Go to
Follow the online instructions for submitting comments.
Instructions: All submissions must include the agency name and
docket number for this notice. Note that all comments received will be
posted without change to
including any personal information provided. Please see the Privacy Act heading for further information.
Docket: For access to the docket to read background documents or
comments received, go to
and/or Room PL-401 on the plaza level of the Nassif Building, 400 Seventh Street, SW, Washington,
DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
Privacy Act: Anyone may search the electronic form of all comments
received into any of DOT's dockets by the name of the individual
submitting the comment (or of the person signing the comment, if
submitted on behalf of an association, business, labor union, or other
entity). You may review DOT's complete Privacy Act Statement in the
Federal Register (65 FR 19477, Apr. 11, 2000). This statement is also
available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://dms.dot.gov.
FOR FURTHER INFORMATION CONTACT: Mary Pat Woodman, Chief of the
Enforcement and Compliance Division (MC-ECE), (202) 366-9699, FMCSA,
400 Seventh Street, SW., Washington, DC 20590.
Sec. 210 of the Motor Carrier Safety Improvement Act (MCSIA) of
1999 (Pub. L. 106-159, 113 Stat. 1748) directs that all motor carriers
(both foreign and domestic) granted new operating authority must
undergo a safety audit within 18 months of commencing operations in
interstate commerce in the United States [49 U.S.C. 31144(b)]. Sec. 211
of the MCSIA requires that any safety audit conducted after December
31, 2002, be performed by a certified motor carrier safety auditor [49
U.S.C. 31148(b)]. The legislation also gives the Secretary of
Transportation (Secretary) authority to decertify a safety auditor and
extend the December 31, 2002, compliance deadline [49 U.S.C. 31148 (e)
and (c)]. On July 17, 2003, the Secretary notified the Senate Committee
on Commerce, Science, and Transportation and the House of
Representatives Committee on Transportation and Infrastructure that he
had extended the compliance deadline to December 31, 2003. FMCSA
notified the public of this extension (68 FR 44378, Jul. 28, 2003).
As required by Sec. 211, the agency published an interim final
rule, Certification of Safety Auditors, Safety Investigators, and
Safety Inspectors, establishing procedures to certify and maintain
certification for safety auditors, inspectors, and investigators (67 FR
12776, Mar. 19, 2002). This rule amends 49 CFR parts 350 and 385 to
provide for three types of certification: (1) Certification to conduct
safety audits, (2) certification to conduct compliance reviews, and (3)
certification to conduct roadside vehicle and driver inspections. FMCSA
determined the Certification rule was not subject to environmental
analysis due to a categorical exclusion from statutory requirements.
The rule took effect on July 17, 2002.
The 2002 DOT Appropriations Act (Pub. L. 107-87) stipulated that
FMCSA could not begin processing applications to allow Mexico-domiciled
motor carriers to operate in the United States beyond the border
commercial zones in accordance with the North American Free Trade
Agreement (NAFTA) until FMCSA published, among other things, a number
of regulations including the Certification rule (a condition again
imposed in the 2003 Appropriations Act). Another precondition for
processing such applications was publication of a rule implementing
Sec. 210 of the MCSIA. An interim final rule, New Entrant Safety
Assurance Process (New Entrant rule) establishing procedures to
heighten the agency's safety scrutiny of new entrant motor carriers,
including standards and procedures regarding the safety audits mandated
by Sec. 210, was published on May 13, 2002 (67 FR 31978, May 13, 2002)
and became effective on January 1, 2003.
On January 16, 2003, the U.S. Court of Appeals for the Ninth
Circuit set aside the Certification rule and two other FMCSA rules that
established application and safety monitoring procedures for Mexico-
domiciled motor carriers seeking authority to operate in the United
States. The court concluded that FMCSA failed to comply with statutory
environmental impact analysis requirements in developing these
regulations. Public Citizen v. DOT, 316 F.3d 1002 (9th Cir. 2003).
Specifically with respect to the Certification rule, the court
determined that because the rule did not fall within any of the
existing DOT categorical exclusions, FMCSA acted arbitrarily and
capriciously by failing to at least conduct an Environmental Assessment
(EA) of the rule. DOT's petition for rehearing was denied on April 10,
2003. Consequently, the court's mandate setting aside the three rules
took effect on April 18, 2003. On September 8, 2003, the United States
sought Supreme Court review of the Ninth Circuit decision as to the
application and safety monitoring rules, but not the Certification
On August 26, 2003, FMCSA issued a notice to advise the public that
a Programmatic Environmental Impact Statement (PEIS) will be prepared
pursuant to NEPA and a General Conformity Evaluation will be made
pursuant to the Clean Air Act before promulgating the regulations
establishing the application and safety monitoring procedures for
Mexico-domiciled carriers (68 FR 51322). The Notice stated that FMCSA
was preparing an EA for the Certification rule and that a supplemental
Notice of Intent would be issued if, based on the EA, FMCSA determined
that preparation of a PEIS is required.
Summary of Environmental Assessment
FMCSA limited its analysis to those environmental resources--land
use, traffic and congestion, air quality, noise, and public safety and
health--that could be affected by implementation of the safety auditor
certification procedures. The certification process preserves and
formalizes training requirements and practices that have been in effect
within the DOT system for more than 20 years. Implementing the proposed
procedures would not require FMCSA to engage in any new activities.
Although the New Entrant rule created a new kind of review--the
``safety audit'' of new entrant carriers--the training required for
safety auditor certification is merely a simplified, less comprehensive
version of that required to conduct compliance reviews and roadside
vehicle and driver inspections.
For each type of certification, initial and refresher training
would take place at existing classroom facilities. Audits, inspections
and compliance reviews necessary to obtain and maintain certification
would be conducted at carrier facilities, weigh stations and other
inspection facilities, or by use of existing mobile equipment. No
additional facilities or roadways would need to be built. Further, as
the certification program would not, in and of itself, increase the
number of inspections performed, commercial vehicular traffic
congestion and associated air emissions would not increase. Because the
Certification rule would not affect construction activity or commercial
vehicular traffic, it would not have an adverse impact on air quality
and noise levels or increase existing land use.
Generally, an action that involves operational changes or
construction of facilities would have potential impacts on a range of
environmental characteristics, including visual, cultural, and
aesthetic resources, geology and soils, water resources and hydrology,
biological and ecological resources, energy consumption,
socioeconomics, and environmental justice. However, because the
employee certification process would not increase commercial vehicular
traffic, alter established safety oversight activities, or require
construction of new facilities, it would have no measurable impact in
these conventional analysis areas.
As required by DOT Order 5610.1C and the Council on Environmental
Quality's regulations implementing NEPA, FMCSA also analyzed the
potential environmental impact of failure to implement the proposed
certification procedures (the No Action Alternative). Under this
scenario, the agency would withdraw the Certification rule and make no
changes to the safety fitness regulations at 49 CFR part 385. In
addition, we considered two alternative actions: (1) restricting the
grandfather period for the certification program to those safety
employees who were fully trained before December 9, 1999, and (2)
codifying the training requirements. We judged all three alternatives
to be inadequate.
Under the No Action Alternative, the inability to hire certified
safety employees could diminish the government's ability to identify
unsafe motor carriers, vehicles, and drivers. This would adversely
impact public safety and be likely to hinder FMCSA's achievement of
continued reductions in commercial vehicle-related accidents and
fatalities. Limiting the grandfather period would impose significant
costs and burdens on FMCSA as well as on State and local governments,
while producing little if any safety benefit. Codification of the
training requirements would make the certification program less
flexible by hampering the agency's ability to quickly modify course
content in response to regulatory or circumstantial changes.
The certification alternative is intended to promote more accurate
compliance reviews, safety audits, and inspections by ensuring that
activities are conducted by highly trained personnel certified by FMCSA
or by State or local governments. To the extent that implementation of
the certification process increases the government's ability to
identify potentially unsafe carriers and vehicles and remove them from
the Nation's roads, it would have positive, if minimal, effects on air
quality, noise levels, and public safety. Accordingly, FMCSA
anticipates that implementation of the Certification rule would produce
a net positive impact on the quality of the human environment. The
agency's full Environmental Assessment is available in this docket.
As noted in the Background section of this document, the 2002 and
2003 DOT Appropriations Acts made issuance of the Certification rule a
precondition to FMCSA's expenditure of funds on the processing of
Mexico-domiciled motor carrier applications for authority to operate
beyond the border commercial zones. Nevertheless, the EA does not
attempt to analyze the prospective environmental impacts of Mexico-
domiciled carriers operating in the United States. This is because the
environmental analysis of such operations, in the form of a PEIS and
General Conformity Evaluation required by the Ninth Circuit decision,
is already being undertaken with respect to two other rules discussed
above (establishing application and safety monitoring procedures for
Mexico-domiciled carriers) that are preconditions to the processing of
applications of Mexican carriers for beyond-the-border-commercial-zones
operating authority. Unless the Ninth Circuit decision is reversed or
the relevant terms of the DOT Appropriations Acts are not extended,
FMCSA cannot process applications of Mexico-domiciled motor carriers
seeking authority to operate beyond the border commercial zones until
the PEIS and General Conformity Evaluation have been completed and
considered by FMCSA. Thus, no operations of Mexican-domiciled carriers
could take place beyond the border commercial zones as a result of
issuance of the Certification rule.
Additionally, given the nature of the Certification rule, the rule
standing alone would have no impact on Mexican truck and bus operations
beyond the border commercial zones. For example, implementation of the
rule would not affect either the number of Mexico-domiciled vehicles
entering the United States or the number and duration of safety
inspections of these vehicles. Indeed, unlike the application and
safety monitoring rules, which apply solely to Mexico-domiciled motor
carriers, the only connection between the Certification rule and the
operation of Mexican carriers beyond the border commercial zones is the
contingency Congress created when it made issuance of the rule one of
the preconditions to the processing of these carriers' applications for
operating authority. For these reasons, FMCSA believes that the scope
of the Environmental Assessment for the Certification rule is
Issued on: September 26, 2003.
John H. Hill,
Assistant Administrator/Chief Safety Officer.
[FR Doc. 03-24979 Filed 10-1-03; 8:45 am]