Unified Registration System

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 360, 365, 366, 368, 385, 387, 390 and 392

[Docket No. FMCSA-97-2349]

RIN 2126-AA22

Unified Registration System

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Supplemental Notice of Proposed Rulemaking (SNPRM).

SUMMARY:

The FMCSA amends its proposal regarding establishment of the Unified Registration System (URS) required by the ICC Termination Act of 1995 (ICCTA) and originally announced in a May 19, 2005 notice of proposed rulemaking (NPRM). URS is the replacement system for several existing registration and information systems for motor carriers, property brokers, and freight forwarders under FMCSA jurisdiction. This SNPRM responds to comments to the 2005 URS NPRM, incorporates new proposals implementing requirements imposed by final rules published after the 2005 URS NPRM, and includes new proposals to implement certain provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU). The Agency believes the proposed URS would improve the registration process for motor carriers, property brokers, freight forwarders and other entities that register with FMCSA.

DATES:

You must submit comments on or before December 27, 2011.

ADDRESSES:

You may submit comments identified by Federal Docket Management System (FDMS) Docket ID Number FMCSA-97-2349 by any of the following methods:

•

Federal eRulemaking Portal:

Go to

http://www.regulations.gov.

Follow the online instructions for submitting comments.

•

Mail:

Docket Management Facility: U.S. Department of Transportation, 1200 New Jersey Avenue, SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

•

Hand Delivery or Courier:

West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue, SE., between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.

•

Fax:

202-493-2251.

Instructions:

For detailed instructions on submitting comments and additional information on the rulemaking process, see the Public Participation heading under the Supplementary Information caption of this document. Note that all comments received will be posted without change to

http://www.regulations.gov,

including any personal information provided. Please see the Privacy Act heading below.

Privacy Act:

Anyone is able to search the electronic form of all comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union,

etc.

). You may review the US Department of Transportation's DOT Privacy Act System of Records Notice for the DOT Federal Docket Management System published in the

Federal Register

on January 17, 2008 (73 FR 3316), or you may visit

http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

Docket:

For access to the docket to read background documents or comments received, go to

http://www.regulations.gov

or the street address listed above. Follow the online instructions for accessing the dockets.

FOR FURTHER INFORMATION CONTACT:

Mr. Richard Clemente, Transportation Specialist, Driver and Carrier Operations Division, (202) 366-2722, or by e-mail at:

Richard.Clemente@dot.gov.

Business hours are from 8 a.m. to 4:30 p.m. ET, Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Public Participation

The Federal eRulemaking Portal (

http://www.regulations.gov

) is available 24 hours each day, 365 days each year. You can get electronic submission and retrieval help and guidelines under the “How to Use This Site” menu option.

Comments received after the comment closing date will be included in the docket and we will consider late comments to the extent practicable. The FMCSA may, however, issue a final rule at any time after the close of the comment period.

Preamble Table of Contents

The following is an outline of the preamble.

I. Legal Basis for the Rulemaking

II. Regulatory History

A. Advance Notice of Proposed Rulemaking

B. Notice of Proposed Rulemaking

III. Discussion of the Supplemental Notice of Proposed Rulemaking

A. New Regulatory Drafting Strategy

B. The Proposal

IV. Regulatory Evaluation of the URS SNPRM: Summary of Benefits and Costs

V. Appendix to the Preamble—Proposed Form MCSA-1 and Instructions

VI. Rulemaking Analyses and Notices

I. Legal Basis for the Rulemaking

This rulemaking is in response to sec. 103 of the ICC Termination Act of 1995 (ICCTA) [Pub. L. 104-88, 109 Stat. 888, December 29, 1995] and title IV of the Safe, Accountable, Flexible, and Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU) [Pub. L. 109-59, 119 Stat. 1714, August 10, 2005]. This rulemaking action is consistent with the requirements of 31 U.S.C. 9701 and 49 U.S.C. 31136(a).

In the ICCTA, Congress enacted 49 U.S.C. 13908 directing the Secretary of Transportation (the Secretary), in cooperation with the States, and after notice and opportunity for public comment, to issue regulations to replace the existing information systems listed below with a single, online, Federal system:

1. The current Department of Transportation (USDOT) identification number system;

2. The single State registration system (SSRS) under [49 U.S.C.] section 14504;

3. The registration system contained in 49 U.S.C. chapter 139; and

4. The financial responsibility information system under section 13906.

Congress also directed the Secretary to consider whether to integrate the requirements of 49 U.S.C. 13304 regarding service of process in court proceedings into the new system. Congress specified that the new URS should serve as a clearinghouse and depository of information on, and identification of, all foreign and domestic motor carriers, property brokers, freight forwarders, and others required to register with the USDOT as well as information on safety fitness and compliance with required levels of financial responsibility. The language of 49 U.S.C. 13908(c) also authorized the Secretary to “establish, under section 9701 of title 31 [of the U.S. Code], a fee system for registration and filing evidence of financial responsibility under the new system under subsection (a). Fees collected under the fee system shall cover the costs of operating and upgrading the registration system, including all personnel costs associated with the system.”

The Unified Carrier Registration Act of 2005, subtitle C of title IV of SAFETEA-LU, modified the requirements for a unified registration system for motor carriers contained in ICCTA. In particular, SAFETEA-LU changed the scope of the Secretary's responsibility for the development of a registration system to replace the SSRS. It also modified the requirement that

fees collected under the new system cover the costs of operating and upgrading the registration system and placed limitations on certain fees that the Agency could charge. Section 4304 of SAFETEA-LU reiterated the congressional requirement for a single, Federal, online system to replace the four individual systems identified under 49 U.S.C. 13908 and also mandated inclusion of the service of process agent systems under 49 U.S.C. 503 and 13304. SAFETEA-LU refers to the Federal online replacement system as the Unified Carrier Registration System. The Agency considers the URS announced in the May 2005 NPRM to be the Unified Carrier Registration System.

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The Unified Carrier Registration (UCR) Agreement mandated under section 4305 of SAFETEA-LU (which enacted 49 U.S.C. 14504a) is the replacement for the Single State Registration System authorized by former 49 U.S.C. 14504. Registration and payment of fees under the UCR Agreement are not the responsibility of FMCSA. However, as provided by 49 U.S.C. 13908(b), information about the compliance of entities subject to the UCR Agreement will be available through the URS when that system has been developed.

Congress also repealed the statutory provisions of 49 U.S.C. 14504 governing SSRS. (SAFETEA-LU section 4305(a)).

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The legislative history indicates that the purpose of the UCR Plan and Agreement is both to “replace the existing outdated system [SSRS]” for registration of interstate motor carrier entities with the States and to “ensure that States don't lose current revenues derived from SSRS” (S. Rep. 109-120, at 2 (2005)).

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This repeal became effective on January 1, 2007, in accordance with section 4305(a).

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The Senate bill's provisions were enacted “with modifications.” H. Conf. Rep. No. 109-203, at 1020 (2005).

The statute provided for a 15-member Board of Directors for the UCR Plan and Agreement (Board) appointed by the Secretary of Transportation. The statute specified that the Board should consist of Federal, State and motor carrier industry representatives. The establishment of the board was announced in the

Federal Register

on May 12, 2006 (71 FR 27777). The Board's duties include issuing rules and regulations, recommending fee levels for the system, and designating a revenue depository for the new system. On Friday, August 24, 2007, the Agency published a final rule establishing initial fees for 2007 and a fee bracket structure for the Unified Carrier Registration Agreement in the

Federal Register

(72 FR 48585). The FMCSA subsequently adjusted the UCR Agreement fees and fee bracket structure in a final rule dated April 27, 2010 (74 FR 21993).

SAFETEA-LU also amended several definitions that affect the coverage of the URS, amended certain financial responsibility requirements, and eliminated the Agency's authority to collect certain fees. Today's proposal incorporates new requirements imposed by SAFETEA-LU.

Title 31 U.S.C. 9701 (the so-called “User Fee Statute”) establishes general authority for agencies to “charge for a service or thing of value provided by the Agency.” Accordingly, FMCSA proposes to charge fees under URS that will enable the Agency to recoup costs associated with processing registration applications and administrative filings. Title 49 U.S.C. 13908(d) requires establishment of registration fees that, as nearly as possible, cover the costs of processing the registration, provided the fees do not exceed $300.

Section 206 of the Motor Carrier Safety Act of 1984 [Pub. L. 98-554, title II, 98 Stat. 2832, October 30, 1985, 49 U.S.C. App. 2505, recodified at 49 U.S.C. 31136] requires the Secretary to prescribe regulations on commercial motor vehicle safety. The regulations shall prescribe minimum safety standards for commercial motor vehicles (CMVs). At a minimum, the regulations shall ensure that: (1) CMVs are maintained, equipped, loaded, and operated safely; (2) the responsibilities imposed on operators of CMVs do not impair their ability to operate the vehicles safely; (3) the physical conditions of operators of CMVs is adequate to enable them to operate the vehicles safely; and (4) the operation of CMVs does not have a deleterious effect on the physical condition of the operators (49 U.S.C. 31136(a)).

This SNPRM is intended to streamline the existing registration process and ensure that FMCSA can more efficiently track motor carriers, freight forwarders, brokers, intermodal equipment providers and cargo tank facilities. It implements the mandate under sec. 31136(a)(1) that FMCSA's regulations ensure that CMVs are maintained and operated safely. This proposal imposes no operational responsibilities on drivers. Therefore, this proposed regulation would not impair a driver's ability to operate vehicles safely (sec. 31136(a)(2)), would not impact the physical condition of drivers (sec. 31136(a)(3)), and would not have a deleterious effect on the physical condition of drivers (sec. 31136(a)(4)).

II. Regulatory History

A. Advance Notice of Proposed Rulemaking

In response to the ICCTA mandate to develop a unified registration system, the Federal Highway Administration (FMCSA's predecessor agency) issued an advance notice of proposed rulemaking (ANPRM) announcing plans to develop a single, online, Federal information system (61 FR 43816, August 26, 1996). The ANPRM solicited specific detailed information from the public about each of the systems to be replaced by the URS, the conceptual design of the URS, uses and users of the information to be collected, and potential costs.

B. Notice of Proposed Rulemaking

On May 19, 2005, FMCSA published an NPRM describing a proposal to merge all of the prescribed information systems except SSRS into a unified, online, Federal system (70 FR 28990) as set forth below.

1. Entities To Be Included in the Unified Registration System

The Agency proposed to include the following entities in the Unified Registration system: (1) All for-hire motor carriers (including those exempt from the 49 U.S.C. chapter 139 registration requirements), (2) private motor carriers, (3) property brokers, and (4) freight forwarders.

In the NPRM, the Agency proposed to exclude the following entities from the Unified Registration System: (1) Mexico-domiciled motor carriers applying to engage in long-haul operations, (2) applicants for hazardous materials safety permits to haul certain hazardous materials under 49 CFR part 385, subpart E, and (3) cargo tank facilities required to register with FMCSA pursuant to 49 CFR 107.502 and 49 U.S.C. 5108. The Agency requested comment on whether the unique conditions of these entities warranted retaining separate registration procedures and application forms or whether they also should be included in the Unified Registration System. The Agency also solicited information on how to most effectively integrate the systems under consideration for merger with URS.

2. Proposed User Fees

The Agency proposed user fees as set forth in the Table to § 360.401 below:

Table to § 360.401—Unified Registration Schedule of Fees

Registration

You must pay

FMCSA

If you:

(a) Are subject to the registration requirements under § 360.3 and are requesting a new application to operate in interstate commerce

$200.

Other Services

If you file a:

(b) Biennial update of registration

No cost.

(c) Request for change of name, address, or form of business

No cost.

(d) Request for cancellation of registration

No cost.

(e) Request for registration reinstatement

$100.

(f) Designation of process agent

$10.

Additionally, the Agency proposed fees for record searching, reviewing, copying, certifying, and related services under § 360.419(a) through (d) as follows:

Description

Fee

(a) Certificate of the Director, Office of Information Management, as to the authenticity of documents

$12.

(b) Service involved in locating records to be certified and determining their authenticity, including incidental clerical and administrative work

$21 per hour.

(c) Photocopies of public documents

$.80 per letter- or legal-size page; $5 minimum.

(d) Search and copying services requiring automated data processing services (ADP), as follows:

(1) Professional staff time to fulfill an ADP request

$50 per hour.

(2) Computer searches

Current rate for computer service as determined by the Office of Information Management (MC-RIS).

(3) Printing

Paper—$.10 per page with a $1 minimum; Electronic media—Agency's cost.

3. Financial Responsibility

Bodily Injury and Property Damage Insurance (BI & PD) Filing Requirement

Existing regulations prescribe minimum levels of financial responsibility for certain motor carrier classifications. However, only for-hire motor carriers, brokers and certain freight forwarders

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that are subject to the chapter 139 registration requirements must file evidence of financial responsibility with FMCSA as a precondition to receiving and holding chapter 139 operating authority. Evidence of financial responsibility may be in the form of certificates of insurance, surety bonds, proof of qualifications as a self-insurer, endorsements, or trust agreements, as appropriate.

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Household goods freight forwarders performing transfer, collection and delivery service.

The Agency proposed to retain the financial responsibility filing requirement for these entities and to extend them to for-hire motor carriers exempt from the chapter 139 registration requirements (hereafter referred to as “exempt for-hire motor carriers”) and to private interstate motor carriers transporting hazardous materials. All such carriers already are required by statute (49 U.S.C. 31138 and 31139) and regulations (49 CFR part 387) to obtain and maintain BI & PD insurance. The NPRM merely proposed to require the filing of evidence of financial responsibility with FMCSA. The Agency believes the proposed filing requirement would provide the public with assurances that all for-hire motor carriers and private carriers transporting hazardous materials in interstate commerce have the financial means to compensate members of the public for injuries or damages caused by negligence. These filings also would increase public accessibility to insurance information and would enable FMCSA to more effectively track insurance cancellations.

The filing requirement would not be extended to motor carriers transporting hazardous materials in intrastate commerce; these carriers would continue to maintain evidence of financial responsibility at their principal place of business.

Web-Based Filings by Insurers, Surety Companies, and Financial Institutions

The Agency proposed to require financial responsibility service providers such as insurers to file evidence of financial responsibility using a Web-based (HTML) format. These filings would include evidence of certificates of insurance, proof of qualification to self-insure, endorsements, surety bonds, trust-fund agreements, household goods (HHG) cargo insurance, and notices of cancellations. The FMCSA believes Web-based filings will promote efficiencies for FMCSA, insurers, sureties, financial institutions, and the public. The NPRM solicited comment on whether the proposed mandatory Web-based filing would be a significant burden on small insurers, surety companies, and financial institutions. Also, the Agency invited comments, ideas and suggestions regarding a potential phase-in approach as opposed to immediate mandatory on-line filing.

Cargo Insurance.

The NPRM included a proposal to eliminate the cargo insurance requirement for all entities except HHG motor carriers and HHG

freight forwarders. Current 49 CFR 387.303(c) and 387.405(a) require non-exempt for-hire motor common carriers of property and freight forwarders, respectively, to maintain cargo insurance in the amount of $5,000 per vehicle, and $10,000 per occurrence, and to file evidence of coverage with FMCSA. Contract carriers are not subject to a requirement to maintain or file evidence of cargo insurance. However, SAFETEA-LU prohibited FMCSA from registering motor carriers as “common” or “contract” carriers, effective January 1, 2007. The Agency proposed to eliminate the cargo insurance requirement for all entities except HHG carriers and HHG freight forwarders based on the assumption that most for-hire motor carriers and freight forwarders carry cargo insurance well above FMCSA limits because their shipper clients generally require it as a condition of doing business. However the Agency deemed it in the public interest to retain the cargo insurance requirement for household goods motor carriers and household goods freight forwarders.

Self-Insurance Program.

The Agency proposed several changes to the self-insurance program, including changes to the fees charged to applicants seeking approval to self-insure and changes to the fees associated with annual and quarterly reporting by entities approved to self-insure. The Agency announced that it would continue its practice of processing and approving each motor carrier self-insurance application on a case-by-case basis.

Insurance Filing Fees.

The Agency proposed insurance filing fees as set forth in the Table to § 360.415(b):

Table to § 360.415(b)—Insurance Filing Fees

(1) Financial responsibility service provider filing evidence of minimum level of insurance, surety bond, or trust fund agreement

$10

(2) Qualification as a self-insurer for bodily injury, property damage, or environmental restoration

4,200

(3) Qualification as a self-insurer for cargo insurance

420

(4) Quarterly self-insurance monitoring filing

500

(5) Annual self-insurance monitoring filing

(

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)

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No cost.

4. Process Agent Designations

Current regulations under 49 CFR part 366 require only motor carriers and brokers that are subject to the 49 U.S.C. chapter 139 commercial registration requirements to designate a process agent.

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Today exempt for-hire motor carriers are not subject to FMCSA commercial regulations and thus are not required to designate a process agent. Heretofore, the Agency has not exercised the authority granted under 49 U.S.C. 503 to require private carriers to designate a process agent. However, in the May 2005 NPRM, the Agency proposed to require new and existing private and exempt for-hire motor carriers and freight forwarders to make process agent designation filings with FMCSA. Additionally, private motor carriers that operate in the United States in the course of transportation between points in a foreign country would need to file process agent designations with the Agency.

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Although part 366 does not require process agent designations by freight forwarders, designation of agents for service of process by freight forwarders in connection with Agency proceedings is required under 49 U.S.C. 13303. Consequently, the Agency has required such designations by freight forwarders notwithstanding the omission of freight forwarders in part 366. The Agency proposed to add freight forwarders to part 366 to fully implement section 13303.

The FMCSA concluded that extending the requirement to all URS registrants would enhance the public's ability to serve legal process on responsible individuals when seeking compensation for losses resulting from a crash involving a commercial motor vehicle operated by private or exempt for-hire motor carriers. Moreover, FMCSA would be better able to identify among all of its regulated entities the appropriate individual(s) upon whom to serve notices for enforcement actions.

5. Timeframes for Evidence of Financial Responsibility and Process Agent Designation Filings

The Agency proposed to increase to 90 days the maximum time allowed for an applicant to submit evidence of financial responsibility and to designate a process agent (§§ 360.13(a)(6)

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and (a)(7)). Failure to make these filings within 90 days of applying for registration would result in dismissal of the application.

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The May 2005 NPRM incorrectly included two paragraphs (a)(6) under § 360.13. This statement cross references the second paragraph (a)(6).

Existing regulations already provide up to 80 days for these filings. Today agents must file evidence of financial responsibility on behalf of non-exempt for-hire motor carriers, brokers and freight forwarders within 20 days of the date of publication of the application in the FMCSA Register (published on the Agency Web site at

http://www.fmcsa.dot.gov

). If the filings are not completed within the 20-day period, FMCSA issues a dismissal warning and may grant a one-time 60-day grace period.

The Agency stated that a 90-day filing period for these administrative filings more realistically reflects the actual time necessary to arrange insurance and process agent coverage. The NPRM included a proposal that administrative filings be completed within 90 days after submission of the Form MCSA-1, with no further extensions. If either the insurance or process agent filings were not completed within this 90-day period, the Agency would dismiss the registration request.

In addition, the Agency proposed a 180-day grace period for the newly required administrative filings by existing exempt for-hire and covered private motor carriers.

6. USDOT Number as the Sole Identifier for Entities Registered in URS

At the time of publication of the NPRM, FMCSA registration systems used five identification numbers: (1) The USDOT Number; (2) the MC Number (assigned to non-exempt for-hire motor carriers and brokers registering under 49 U.S.C. chapter 139); (3) the FF Number (assigned to freight forwarders); (4) the MX Number (assigned to Mexico-domiciled motor carriers operating exclusively within municipalities in the United States on the U.S.-Mexico international border and the commercial zones of such municipalities; and (5) cargo tank facility (CT) numbers. The Agency proposed to discontinue issuing MC, MX, and FF Number designations and to phase out the use of current MC, MX, and FF Numbers within 2 years of the compliance date for the URS final rule. Thus, the USDOT Number would become the sole identification number for all entities registered by FMCSA (except for cargo tank facilities). This unique USDOT Number would be

displayed on the side of the vehicle pursuant to the CMV marking requirement in 49 CFR 390.21. The FMCSA would issue a USDOT Number with a distinctive suffix to any Mexico-domiciled motor carrier granted registration.

7. The Application Process

The Agency proposed under subpart A to part 360 a new multi-step application process and procedures for issuance of a USDOT Number under which an applicant would begin the registration process by filing a completed Form MCSA-1 and paying the registration fee. If the Agency accepted the Form MCSA-1 application, it would assign a temporary number to track the application through the registration process and enable registrants to make required administrative filings. The applicant's financial responsibility agent would use the tracking number to file evidence of compliance with FMCSA financial responsibility requirements under 49 CFR part 387; the motor carrier or its agent also would use the temporary tracking number to make a process agent designation filing. An applicant would be prohibited from commencing operations until the Agency issues a USDOT Number and grants registration.

Upon receipt of the USDOT Number, a motor carrier applicant would be considered a “new entrant” and placed under the appropriate safety monitoring program. A U.S.- or Canada-domiciled motor carrier would be subject to the FMCSA New Entrant Safety Assurance Program described under 49 CFR part 385, subpart D, which includes a safety audit. The provisional registration is the new entrant registration defined at 49 CFR 385.3. New entrant registration for these motor carriers would become permanent only if the applicant satisfactorily completed the New Entrant Safety Assurance Program. Similarly, to receive permanent registration, a Mexico-domiciled new entrant operating exclusively within the border commercial zones would be required to satisfactorily complete the safety monitoring program and safety audit described under 49 CFR part 385, subpart B. Motor carrier operating authority obtained under the procedures in 49 CFR part 365 would not become permanent until an applicant operating commercial motor vehicles satisfactorily completed the New Entrant Safety Assurance Program.

Special procedures for chapter 139 brokers, freight forwarders or motor carriers

Current registration procedures in 49 U.S.C. 13902 allow anyone to oppose a request for permanent operating authority by non-exempt for-hire motor carriers, property brokers, and freight forwarders, provided the protest is based upon the applicant's willingness and ability to comply with: (1) The registration procedures; (2) applicable DOT regulations, including the Federal Motor Carrier Safety Regulations (FMCSRs), Hazardous Materials Regulations (HMRs) and regulations implementing the Americans with Disabilities Act (ADA); (3) the safety fitness standards; and/or (4) the financial responsibility requirements. The proposed unified registration system would continue to allow protests for applications covered under section 13902, but would not extend the right of protest to applications for registration filed by private motor carriers or exempt for-hire motor carriers.

In accordance with section 13902, FMCSA must notify the public when applications for authority are under consideration and provide an opportunity for protest. Upon acceptance of an application for registration from a chapter 139 entity, FMCSA would publish notice of the application in the FMCSA Register, initiating a 10-day protest period. The Agency would issue the applicant a temporary tracking number for the purpose of completing administrative filings and tracking the application through the registration process. If the Agency denied an application based on a protest, the application would be dismissed, and the registration fee would not be refunded.

If the application of a broker or freight forwarder is not protested or if insufficient grounds exist to deny a protested application, the Agency would issue a USDOT Number and grant permanent registration. Brokers and freight forwarders are not subject to a safety monitoring program.

If the application of a non-exempt motor carrier is not protested, or if insufficient grounds exist to deny a protested application, FMCSA would grant the applicant new entrant registration subject to completion of applicable administrative requirements. New entrant registration would become permanent registration only after satisfactory completion of the New Entrant Safety Assurance Program.

8. The Proposed Application Form (MCSA-1)

The FMCSA proposed to combine the data elements now captured on several different licensing, registration and certification forms into a single, new application form called the Form MCSA-1. For those entities subject to URS, Form MCSA-1 would replace the following forms: (1) Motor Carrier Identification Report (Application for USDOT Number), Form MCS-150; (2) Application for Motor Property Carrier and Broker Authority, Form OP-1; (3) Application for Motor Passenger Carrier Authority, Form OP-1(P); (4) Application for Freight Forwarder Authority, Form OP-1(FF); and (5) Application for Mexican Certificate of Registration for Foreign Motor Carriers and Foreign Motor Private Carriers Under 49 U.S.C. 13902, Form OP-2. The NPRM also invited comments on whether the URS should incorporate the data requirements of three other registration processes: (1) Registration of Mexico-domiciled motor carriers seeking to operate between points in Mexico and points in the United States beyond the border commercial zones, Form OP-1(MX); (2) registration of entities requesting a hazardous materials safety permit, Form MCS-150B; and (3) registration of cargo tank facilities (which is requested in a letter submitted by the applicant to FMCSA).

9. Electronic Filing Requirement With Paper Filing Option

The FMCSA proposed an online electronic application process with a paper filing option. The Agency requested comments on the benefits or hardships applicants might experience from a mandatory online electronic filing requirement. The Agency also asked whether it should immediately require online electronic filing or provide a phase-in period. The FMCSA noted several factors in support of an online filing requirement:

• There is widespread public access to computers and the Internet;

• In 2005 when the Agency published the NPRM, more than 70 percent of U.S. motor carriers had Internet access, with Internet access clearly increasing;

• Automated error-checking would result in more accurate information about the applicant;

• Online filing would allow USDOT Numbers to be issued faster, substantially reducing the current 2- to 4-week paper-based processing time for registration applications; and

• Online filing would be more cost-effective for FMCSA than manually processing applications.

10. Biennial Update Requirement

The FMCSA proposed to require biennial updates using proposed Form MCSA-1 by all motor carriers, brokers and freight forwarders. Passenger and property motor carriers, freight forwarders, and property brokers would have to file regular updates to their registration information every 24 months. At the time the URS NPRM was published (May 19, 2005), existing § 390.19 required only safety registration information filed on Form MCS-150 or Form MCS-150-B to be updated. There was no requirement for non-exempt for-hire motor carriers, property brokers, and freight forwarders to biennially update commercial registration information. In the May 2005 NPRM, the Agency explained that since the Form MCSA-1 would combine safety and commercial registration for most motor carriers, FMCSA had preliminarily concluded it is reasonable to extend the biennial update requirement to all motor carriers subject to FMCSA's commercial and safety jurisdiction. As a result, all motor carriers, property brokers, and freight forwarders would need to file biennial updates. The registration updates would provide valuable motor carrier and fleet information and would be useful in assessing safety performance. A motor carrier that registers its vehicles in a Performance and Registration Information Systems Management (PRISM) Program State would fulfill the biennial update through its annual State re-registration requirement.

11. Transfers of Operating Authority

Existing 49 CFR part 365, subpart D, permits non-exempt for-hire motor carriers, brokers and freight forwarders that register under chapter 139 to merge, transfer or lease their operating authority (indicated by an MC or FF Number), and establishes procedures for Agency approval of these transactions. Currently, these entities are required to file transfer applications with FMCSA and pay a $300 fee.

The Agency determined that in enacting the ICCTA, Congress repealed pre-existing statutory authority to approve transfers of operating authority (former 49 U.S.C. 10926). Accordingly, the Agency proposed to discontinue regulation of transfers of operating authority and to remove 49 CFR part 365, subpart D, governing such transfers from the FMCSRs.

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FMCSA (then part of the Federal Highway Administration) initially proposed removal of the transfer regulations in a February 13, 1998 NPRM (63 FR 7362). On May 16, 2001, FMCSA published a notice in the

Federal Register

(66 FR 27059) announcing the withdrawal of the February 1998 NPRM with the intention of addressing the transfer issue in the URS rulemaking.

The FMCSA proposed to issue only a USDOT Number as an indicator of operating authority. Issuance of MC, MX, and FF Numbers would be discontinued. Unlike chapter 139 certificates and permits, which have traditionally been considered transferable motor carrier assets, a USDOT Number is a unique identifier used to monitor a carrier's safety performance. As such, the USDOT Number never has been subject to transfer.

Under the proposal, the Agency would permit retention of an existing USDOT Number in a situation where an entity changed its legal name, form of business, or address, provided that there was no change in the ownership, management, or control of the entity. Thus, the USDOT Number could be retained following a change in the legal name of a sole proprietorship, corporation, or partnership; a change in the trade name or assumed name of an entity; and a change in the form of a business, such as the incorporation of a partnership or sole proprietorship. The Agency proposed that all entities requesting a change in legal name, form of business, or address be required to fill out a revised Form MCSA-1 within 20 days of the precipitating change with a certification that there had been no change in the ownership, management, or control of the entity holding the USDOT Number. Such a certification would have addressed whether the change in name, form of business, or address was associated with a transfer of the operating authority.

12. Cancellation, Reinstatement, and Deactivation of USDOT Registration

Under existing procedures, if a motor carrier, broker or freight forwarder whose operations are authorized under 49 U.S.C. chapter 139 wishes to voluntarily cancel its operating authority, it must submit a notarized Form OCE-46, “Voluntary Revocation Request,” or electronically file its request. In the May 2005 NPRM, the Agency proposed to replace the voluntary revocation request procedure with the procedure now used by motor carriers requesting to discontinue use of a USDOT Number. Motor carriers would be required to mail or electronically submit to the Agency a cancellation request and certification statement under proposed § 360.701. Use of the Form OCE-46 would be discontinued.

Under proposed § 360.705, FMCSA would deactivate a motor carrier's USDOT Registration if the carrier failed to comply with the financial responsibility and process agent filing requirements.

Under proposed § 360.707, a motor carrier, broker or freight forwarder could reinstate a USDOT Registration that had been deactivated for less than 2 years by making the necessary filings and paying a reinstatement fee. If the USDOT Registration had been deactivated for 2 or more years, the entity would need to request the Agency to activate its USDOT Registration (under the previously-issued USDOT Number) by completing the procedures in proposed subpart A to part 360, including payment of a registration fee. A motor carrier that sought to reinstate its USDOT Registration after 2 years of being deactivated would be classified as a new entrant.

In setting the proposed threshold for reclassification of a carrier as a new entrant at 2 years, the Agency sought to prevent carriers that go in and out of business for very short periods of time from being required to re-enter the New Entrant Safety Assurance Program. The 2-year threshold also would parallel the existing 2-year update requirement for motor carrier information.

13. Requirements for Special Transit Operations (Federal Transit Administration (FTA) Grantees)

The Agency proposed to include under URS passenger carriers that provide service funded, in whole or in part, by a grant from the FTA under 49 U.S.C. 5307, 5310, or 5311. (49 U.S.C. 31138(e)(4)). These motor carriers currently are exempt from Federal financial responsibility requirements but must comply with the highest minimum requirement imposed by any State in which they operate. The Agency proposed to waive all fees for FTA grantees, including the registration fee, insurance filing fee, and any fees related to the self-insurance approval process. It also proposed amending 49 CFR part 387 to reflect the financial responsibility requirements unique to FTA grantees.

III. Discussion of the Supplemental Notice of Proposed Rulemaking

A. New Regulatory Drafting Strategy

The Agency proposes in the SNPRM to use a different regulatory drafting strategy than earlier proposed. The FMCSA would not at this time attempt to combine and redraft within a single CFR part the diverse application and program requirements as proposed in the May 2005 URS NPRM. Instead, the Agency proposes an incremental approach that would establish a general

requirement under 49 CFR part 390, subpart C, for all entities under FMCSA safety or commercial jurisdiction to obtain USDOT Registration. USDOT Registration encompasses all registration requirements for FMCSA regulated entities, including the identification of motor carriers and intermodal equipment providers for safety oversight, as required under 49 U.S.C. 31144, commercial registration required under 49 U.S.C. chapter 139, hazardous materials safety permitting required under 49 U.S.C. 5109, and cargo tank facility registration required under 49 CFR 107.502 and 49 U.S.C. 5108. Existing 49 CFR part 390, subpart C, which includes in-depth information governing intermodal equipment providers, would be re-designated as subpart D to part 390.

Fee schedules would remain under 49 CFR part 360, and information regarding designation of process agents would remain under 49 CFR part 366.

Conforming amendments would be made to parts 360, 365, 366, 368, and 385 to replace references to obsolete forms in the OP- and MCS-series with references to proposed Form MCSA-1, the Application for USDOT Number/Operating Authority.

The new regulatory strategy is necessary because registration requirements vary widely among those entities regulated by FMCSA. Although Congress directed the Secretary to combine several distinct information systems into a new on-line replacement system, it did not direct that there be uniform requirements for all entities under FMCSA jurisdiction. For example, not all of the entities subject to FMCSA safety oversight are subject to its commercial jurisdiction under 49 U.S.C. chapter 139 and thus required to obtain certificates, permits and licenses granted to motor carriers, brokers and freight forwarders, respectively. For this reason, the Unified Registration System would need to accommodate these distinctions as long as they exist.

B. The Proposal

The comment period for the May 2005 URS NPRM closed on August 17, 2005. The FMCSA received a total of 60 comment submissions to the docket from 58 entities, including State and local government agencies, motor carriers, industry trade associations, enforcement associations, safety advocates, and private citizens. Most comments supported creation of a unified registration system. Because the Agency is soliciting additional comments on modifications made to the NPRM, we will not, at this point in the proceeding, address all comments received. Comments will be discussed if they have resulted in changes to the Agency's original proposal. A more detailed response to comments received to both the NPRM and this SNPRM will be included in the preamble to the final URS rule.

Major proposals carried over from the 2005 NPRM to this SNPRM include the following:

• The URS would combine (1) the USDOT identification number system; (2) the Title 49, chapter 139 commercial registration system; and (3) the 49 U.S.C. 13906 financial responsibility information system into a new single, online system. In accordance with section 4304 of SAFETEA-LU, the Agency also proposes inclusion of the service of process agent designation system in accordance with 49 U.S.C. 503 and 13304.

• All regulated entities would be required to update registration information every 2 years.

• All entities registered under URS would be identified by FMCSA solely by the USDOT Number. Motor carriers could continue to use obsolete MC Numbers for business and advertising reasons, and the Agency would not require a motor carrier to remove the existing MC Number from its vehicles. But the Agency encourages motor carriers to refrain from displaying the MC Number on new or repainted CMVs once the rule becomes final.

• The Agency would no longer accept or review requests for transfers of operating authority.

• All existing private motor carriers that transport hazardous materials in interstate commerce would be required to maintain and file evidence of financial responsibility with the Agency. There would be at least a 3-month moratorium on enforcement of the filing requirement after the effective date of the rule. The moratorium would not apply to new entrants.

1. Single State Registration System (SSRS)

Although numerous commenters addressed SSRS issues, section 4305 of SAFETEA-LU repealed the SSRS and placed responsibility for developing an SSRS replacement system with the Unified Carrier Registration Plan (UCR Plan). Under Section 4305(b) of SAFETEA-LU, the UCR Plan is the organization responsible for developing, implementing, and administering the Unified Carrier Registration Agreement (49 U.S.C. 14504a(a)(9)) (UCR Agreement). The UCR Agreement developed by the UCR Plan is the “interstate agreement governing the collection and distribution of registration and financial responsibility information provided and fees paid by motor carriers, motor private carriers, brokers, freight forwarders and leasing companies * * *.” (49 U.S.C. 14504a(a)(8)).

The statute provides for a 15-member Board of Directors for the UCR Plan and Agreement (Board) appointed by the Secretary of Transportation, only one of whom shall be from the Department of Transportation. The remaining Board members represent State agencies and the motor carrier industry. The establishment of the Board was announced in the

Federal Register

on May 12, 2006 (71 FR 27777).

The Board is charged with developing regulations governing the UCR Agreement and recommends the applicable fees to the Secretary of Transportation.

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The FMCSA is required by SAFETEA-LU to set the fees within 90 days after receiving the Board's recommendation and after notice and opportunity for public comment (49 U.S.C. 14504a(d)(7)(B)).

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The Secretary's functions under section 14504a have been delegated to the Administrator of the Federal Motor Carrier Safety Administration. 49 CFR 1.73(a)(7), as amended, 71 FR 30833 (May 31, 2006).

The FMCSA described the statutory requirements in detail in an NPRM published on May 29, 2007 (72 FR 29472). On Friday, August 24, 2007, the Agency published a final rule establishing initial fees for 2007 and a fee bracket structure for the Unified Carrier Registration Agreement in the

Federal Register

(72 FR 48585). The FMCSA subsequently adjusted the UCR Agreement fees and fee bracket structure in a final rule dated April 27, 2010 (74 FR 21993).

For reasons stated in Section I of this SNPRM, development of the replacement system for the SSRS is no longer addressed under the URS rulemaking.

2. Entities Subject to the URS Registration Requirement

Except as noted below, the Agency proposes to require all entities which are under FMCSA commercial or safety jurisdiction to register under the Unified Registration System using proposed Form MCSA-1. Section 4304 of SAFETEA-LU amended 49 U.S.C. 13908(b) to require the Federal on-line replacement system to “serve as a clearinghouse and depository of information on, and identification of, all foreign and domestic motor carriers, motor private carriers, brokers, freight forwarders, and others required to register with the Department of Transportation * * *.” The FMCSA

interprets this statute as authorizing the inclusion of all entities regulated by FMCSA in the Unified Registration System.

Accordingly, proposed 49 CFR 390.101 would establish a general requirement for all regulated entities, except Mexico-domiciled motor carriers seeking authority to operate beyond the border commercial zones (Mexico-domiciled long-haul carriers), to obtain USDOT Registration by filing proposed Form MCSA-1 and to provide FMCSA biennial updates of the registration information.

Under proposed § 390.102, a motor carrier that registers its vehicles in a State that participates in the Performance and Registration Information Systems Management program (PRISM) alternatively could satisfy the USDOT registration and biennial update requirements in § 390.101 by electronically filing the required information with the State Driver Licensing Agency (SDLA) according to its policies and procedures, provided the SDLA has integrated the USDOT registration/update capability into its vehicle registration program. If State procedures do not allow a motor carrier to file the MCSA-1 form or to submit updates within the required 24-month window, the motor carrier would need to complete such filings directly with FMCSA.

Proposed § 390.103 would require all for-hire motor carriers and private motor carriers that transport hazardous materials in interstate commerce, as well as brokers and freight forwarders, to file evidence of financial responsibility to receive USDOT Registration.

Although seven comments supported the inclusion of Mexico-domiciled long-haul carriers in the unified system, the Agency does not propose to include such carriers at this time. In September 2007, FMCSA began registering Mexico-domiciled long-haul carriers under a limited-term cross-border demonstration project in which participation by Mexican carriers was voluntary. This program was discontinued in March 2009, following enactment of section 136 of the Transportation, Housing and Urban Development, and Related Agencies Appropriations Act, 2009 [Division I, title I of the Omnibus Appropriations Act, 2009, Public Law 111-8, March 11, 2009], which prohibited the use of funds appropriated in that Act to establish, implement, continue, promote, or in any way permit a cross-border demonstration program. Subsequent to enactment of section 136, Congress has not enacted any language that prohibits funding for a new cross-border demonstration program. Currently, FMCSA and USDOT are working closely with the Government of Mexico to implement a new phased-in long-haul cross border trucking program. FMCSA's experiences in implementing this new program will be important in assessing the need to propose further changes in the unified program at a future date. The applicable procedures governing transportation by Mexico-domiciled motor carriers beyond the municipalities and commercial zones along the United States-Mexico international border remain 49 CFR part 365, subpart E, 49 CFR part 385, subpart B, and 49 CFR 390.19.

Proposed § 390.105 would list, and provide cross-references to, other governing regulations that are applicable to those requesting USDOT Registration. For-hire and private motor carriers, brokers and freight forwarders additionally would be required to designate a process agent as a pre-condition for receiving USDOT Registration and commercial operating authority, when applicable. U.S. and Canada-domiciled motor carriers must satisfactorily complete the new entrant safety assurance program under 49 CFR part 385, subpart D in order for their USDOT Registration and commercial operating authority, if applicable, to become permanent. A Mexico-domiciled motor carrier is subject to the safety monitoring system under 49 CFR part 385, subpart B. A non-North America-domiciled motor carrier is subject to the requirements of 49 CFR part 385, subpart H, and must complete the safety monitoring program under 49 CFR part 385, subpart I. An intermodal equipment provider is subject to the requirements of 49 CFR part 390, subpart D. A person who applies for a hazardous materials safety permit is subject to the requirements of 49 CFR part 385, subpart E. A cargo tank facility is subject to the requirements of 49 CFR part 107, subpart F, 49 CFR part 172, subpart H, and 49 CFR part 180.

Finally, § 390.107 would direct a non-North America-domiciled motor carrier that requests authority to conduct interstate commerce within the United States to § 385.607(a) for detailed information about the requirement to complete a pre-authorization safety audit as a pre-condition for receiving USDOT Registration and commercial operating authority, if applicable.

By placing the unified registration requirement under part 390, FMCSA State partners that participate in the Motor Carrier Safety Assistance Program would be able to enforce the registration requirement consistent with the compatibility requirements under 49 CFR parts 350 and 355.

All entities required to register under URS are listed in the chart below:

Entities Required To Register Under the Unified Registration System

Entity

Description

1. A for hire or private motor carrier domiciled in the U.S., Canada, Mexico or a non-North American country:

a. For-hire carrier

A person engaged in the transportation of goods or passengers for compensation.

i. Exempt

A person engaged in transportation exempt from commercial regulation by the Federal Motor Carrier Safety Administration (FMCSA) under 49 U.S.C. chapter 135. Exempt motor carriers that operate commercial motor vehicles as defined in 49 U.S.C. 31101 are subject to the safety regulations set forth in Part B of Subtitle VI of subchapter B of Title 49 Code of Federal Regulations.

ii. Non-exempt

A person engaged in transportation subject to commercial regulation by the Federal Motor Carrier Safety Administration (FMCSA) under 49 U.S.C. chapter 139, regardless of whether such transportation is subject to the safety regulations.

b. Private carrier

A person who provides transportation of property or passengers, by commercial motor vehicle, and is not a for-hire motor carrier.

2. Broker

A person who, for compensation, arranges, or offers to arrange, the transportation of property by a non-exempt for-hire motor carrier.

3. Freight forwarder

A person holding itself out to the general public (other than as an express, pipeline, rail, sleeping car, motor, or water carrier) to provide transportation of property for compensation in interstate commerce, and in the ordinary course of its business: (1) performs or provides for assembling, consolidating, break-bulk, and distribution of shipments; (2) assumes responsibility for transportation from place of receipt to destination; and (3) uses for any part of the transportation a carrier subject to FMCSA commercial jurisdiction.

4. Intermodal equipment provider

A person that interchanges intermodal equipment with a motor carrier pursuant to a written interchange agreement or has a contractual responsibility for the maintenance of the intermodal equipment.

5. Hazardous Materials Safety Permit applicant

A motor carrier that transports in interstate or intrastate commerce any of the hazardous materials, in the quantity indicated for each, listed under 49 CFR 385.403.

6. Cargo tank facility

A cargo tank and cargo tank motor vehicle manufacturer, assembler, repairer, inspector, tester, and design certifying engineer subject to registration requirements under 49 CFR 107.502 and 49 U.S.C. 5108.

3. Proposed User Fees

The Agency sets forth under § 360.3(f) proposed registration, insurance filing and other services fees as follows.

Type of proceeding

Fee

Part I: Registration:

(1)

An application for USDOT Registration pursuant to 49 CFR part 390, subpart C

$300.

(2)

An application for motor carrier temporary authority issued in response to a national emergency or natural disaster and following an emergency declaration under § 390.23 of this subchapter

$100.

(3)

Biennial update of registration

$0.

(4)

Request for change of name, address, or form of business

$0.

(5)

Request for cancellation of registration

$0.

(6)

Request for registration reinstatement

$10.

(7)

Designation of process agent

$0.

Part II: Insurance:

(8)

A service fee for insurer, surety, or self-insurer accepted certificate of insurance, surety bond, and other instrument submitted in lieu of a broker surety bond

$10 per accepted certificate, surety bond or other instrument submitted in lieu of a broker surety bond.

(9)

(i) An application for original qualification as self-insurer for bodily injury and property damage insurance (BI&PD)

[Reserved].

(ii) An application for original qualification as self-insurer for cargo insurance

[Reserved].

(iii) Fee for quarterly self-insurance monitoring filing

[Reserved].

(iv) Fee for annual self-insurance monitoring filing

[Reserved].

The Agency proposes a $300 registration fee for all registered entities. Please refer to the discussion of the proposed new registration fee under “IV. Regulatory Evaluation of the URS SNPRM: Summary of Benefits and Costs” of the preamble for an explanation of the basis for this proposal. The FMCSA proposes to charge a $10 registration reinstatement fee for those seeking to reinstate USDOT registration as a result of failure to maintain required financial responsibility and process agent designation filings with the Agency. The FMCSA also proposes to change the fee currently charged for reinstating commercial operating authority after such authority has been revoked from $80 to $10. After completion of required filings (financial responsibility or process agent designation) and payment of the reinstatement fee, the information system would match up the payment with the filings and automatically issue a reinstatement letter at 5:00 am on the next business day. Section 360.3(f)(7) would eliminate the existing $10 process agent designation filing fee because section 4304 of SAFETEA-LU amended 49 U.S.C. 13908(d)(2) to prohibit the Agency from charging a fee for filing designation of an agent for service of process.

The Agency proposes under § 360.1(e)(1) to exempt any Agency of the Federal Government or a State government or any political subdivision of any such government from paying the fees listed in § 360.3(f) to access or retrieve URS data for its own use. Proposed paragraph (e)(2) would exempt any registered entity within URS from paying fees to access or retrieve its own data.

4. Financial Responsibility

Bodily Injury and Property Damage Insurance

For-hire motor carriers.

Existing regulations require only non-exempt for-hire motor carriers to file evidence of financial responsibility with the Agency. The NPRM included a proposal to require both exempt and non-exempt for-hire motor carriers to file evidence of financial responsibility with the Agency as a precondition to receiving registration. Section 4303(b) of SAFETEA-LU amended financial security requirements under 49 U.S.C. 13906 by requiring “all persons, other than a motor private carrier, registered with the Secretary to provide transportation or service as a motor

carrier under section 13905(b)” to file evidence of financial responsibility with the Agency by December 10, 2005. The Agency believes amended 49 U.S.C. 13906 mandates financial responsibility filings by all for-hire motor carriers. Therefore, the Agency retains its proposal for such filings to be required as a precondition for registration under proposed §§ 390.103(a)(2)(i) and 387.303

Private motor carriers hauling hazardous materials.

The SNPRM retains under § 390.103(a)(2)(ii) the proposal that a private motor carrier hauling hazardous materials in interstate commerce be required to file evidence of financial responsibility with the Agency to receive registration. However, a private motor carrier hauling hazardous materials in bulk in intrastate commerce would continue to be required to meet the financial responsibility requirements under 49 CFR part 387 and maintain evidence of having met the financial responsibility requirements at its principal place of business.

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The statutory authority to require motor private carriers to file evidence of insurance with FMCSA is codified at 49 U.S.C. 31139(c). This authority expressly applies to minimum levels of financial responsibility established by the Secretary under 49 U.S.C. 31139(b). Section 31139(b) only applies to financial responsibility requirements for transportation in interstate commerce. Although the Secretary has other authority, in 49 U.S.C. 31139(d), to establish minimum levels of financial responsibility for intrastate transportation of hazardous materials, section 31139(d) does not authorize the Secretary to require that evidence of such insurance be filed with FMCSA.

Private motor carriers not hauling hazardous materials.

Initially, section 4120(a)(1) of SAFETEA-LU amended 49 U.S.C. 31138(a) and 31139(b)(1) to remove the phrase “for compensation” from the statutes governing financial responsibility and filing of evidence of financial responsibility with the Agency, thereby creating a financial responsibility requirement for private motor carriers, which the Agency was required to implement through rulemaking. Section 4120(a)(2) stated the Agency could require a private non-hazardous materials motor carrier to file evidence of financial responsibility with FMCSA. Section 305(a) of the SAFETEA-LU Technical Corrections Act of 2008 [Pub. L. 110-244, 122 Stat. 1619-1620, June 6, 2008] amended section 31138 by limiting the Secretary's authority to establish minimum levels of financial responsibility for private motor carriers of passengers to those carriers transporting passengers for commercial purposes.

The Agency anticipates that a proposal regarding financial responsibility for private non-hazardous materials motor carriers would generate major interest from the private motor carrier community and might cause a significant delay in completing the URS rulemaking. Consequently, FMCSA has decided to address the financial responsibility requirements for private non-hazardous material motor carriers in a separate rulemaking from URS.

Brokers and freight forwarders.

Brokers and freight forwarders would be required under proposed § 390.103(a)(2) to file evidence of financial responsibility as a pre-condition to registration. This requirement includes only those freight forwarders that perform transfer, collection and delivery service (

i.e.,

operate a motor vehicle). Under the existing regulations, only HHG freight forwarders performing transfer, collection and delivery service are subject to this requirement. These regulations were transferred without change from the Interstate Commerce Commission following enactment of the ICCTA, which re-regulated general commodities freight forwarders. However, the regulations were not amended to reflect the Agency's broadened jurisdiction. The FMCSA believes there is no basis to limit the requirement to HHG freight forwarders and therefore proposes to extend this requirement to all freight forwarders.

Restoration of Liability Insurance Requirements for Small Freight Vehicles

Section 4120 of SAFETEA-LU removed FMCSA's commercial jurisdiction over for-hire transportation of property in motor vehicles that did not meet the definition of commercial motor vehicle (CMV) under 49 U.S.C. 31132. Consequently, the Agency removed former 49 CFR 387.303(b)(1)(i), which established minimum public liability limits of $300,000 for fleets that consisted only of vehicles with Gross Vehicle Weight Ratings of under 10,000 pounds.

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The SAFETEA-LU Technical Corrections Act of 2008 restored the Agency's commercial jurisdiction over these vehicles. Accordingly, the Agency proposes to restore former § 387.303(b)(1)(i) with one minor change, revising 10,000 pounds to 10,001 pounds to be consistent with the statutory definition of CMV.

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See 72 FR 55697, 55702 (October 1, 2007).

Cargo Insurance.

Section 4303(c) of SAFETEA-LU required the Agency to discontinue designating operating authority as common or contract carriage beginning January 1, 2007. The FMCSA concluded that because the cargo insurance requirement is tied to the common/contract distinction, and because we no longer may distinguish between common and contract carriers in the Agency's registration process or base any regulations upon that distinction, it was important to address the cargo insurance issue as quickly as possible. Consequently, the Agency published a separate final rule eliminating the cargo insurance requirement for for-hire motor carriers of property (except household goods motor carriers) and freight forwarders (except household goods freight forwarders), effective March 21, 2011 (75 FR 35318, June 22, 2010). The preamble to that final rule addressed the comments filed in this proceeding regarding the NPRM's cargo insurance proposal.

Web-Based Filing by Insurers, Surety Companies, and Financial Institutions

The Agency would require insurers, surety companies and financial institutions to convert to a Web-based format when electronically filing evidence of financial responsibility. (§ 387.323) These filings would include evidence of surety bonds, certificates of insurance, trust-fund agreements, proof of qualifications to self-insure, and notices of cancellations. The Agency also proposes conforming amendments to miscellaneous sections governing financial responsibility requirements to convey that electronic filing would be mandatory and not optional. (

§§ 360.3(a)(2), 387.313(b), 387.313(d), 387.323, 387.413(b), and 387.419)

Self-Insurance Program

Commenters generally supported the proposal to modify fees related to the self-insurance program. Currently, the cost of the program exceeds the amounts recovered from fees collected from those entities that self-insure. The Agency believes that because entities that qualify to self-insure receive a valuable benefit, it is reasonable and appropriate for the fees charged to support the costs of administering the program. However, FMCSA has determined that the proposed fees for the self-insurance program published in the 2005 NPRM are inadequate to recover Agency costs to administer the program, including the costs of evaluating and monitoring the financial health of motor carriers requesting approval to participate in the self-insurance program. The Agency seeks to make the self-insurance program self-sustaining more quickly and is therefore developing a separate rulemaking to address this issue.

Editorial Changes

The Agency proposes to remove obsolete effective dates and liability

information from the schedule of limits on Form MCS-90B, Endorsement for Motor Carrier Policies of Insurance for Public Liability Under Section 18 of the Bus Regulatory Reform Act of 1982 (Illustration I to § 387.39). Also, the Agency would correct an omission in § 387.419 by adding the phrase “notice of cancellations.” Although the existing section heading is “Electronic filing of surety bonds, certificates of insurance and cancellations” the Agency neglected to include information regarding cancellations.

5. Process Agent Designations

The Agency, by proposing to amend 49 CFR 366.1, retains the NPRM proposal to include private and exempt for-hire motor carriers among those entities that would be required to file process agent designations with FMCSA. Private motor carriers are already mandated by 49 U.S.C. 503 to make such filings, although FMCSA has not yet promulgated a rule requiring them to do so. Inasmuch as non-exempt for-hire motor carriers, brokers, and freight forwarders are required to file process agent designations under 49 U.S.C. 13303 and 13304, approximately 90 percent of the entities subject to this rule are required, by statute, to file such designations. Although there is no statutory requirement that exempt for-hire carriers file process agent designations, FMCSA believes that extending the process agent designation requirement to include such carriers, as well as private carriers, would enhance the public's ability to serve legal process on responsible individuals when seeking compensation for losses resulting from a crash involving a commercial motor vehicle operated by any motor carrier, regardless of the carrier's regulatory status. Moreover, FMCSA would be able to better identify the appropriate individual(s) upon whom to serve notices for enforcement actions. The Agency invites comments on whether the process agent filing process can be made less costly.

The FMCSA also proposes to amend § 366.1 by including freight forwarders among those entities required to file process agent designations with FMCSA. Under 49 U.S.C. 13303(a), a freight forwarder providing service under FMCSA jurisdiction must designate an agent on whom service of notices in Agency proceedings, as well as service of Agency actions, may be made.

The FMCSA proposes to amend § 366.6 to obligate those entities that would be required to file a process agent designation to update FMCSA of any changes to the designated process agent's information, including name, address or contact information. Amended § 366.6 would require the report to be made within 20 days of the change.

6. Timeframes for Filing Evidence of Financial Responsibility and Process Agent Designation

As proposed in the NPRM, the Agency would require new filings of both evidence of financial responsibility and designation of agents for service of process to be completed within 90 days of the date that an application is submitted, or within 90 days of the date that the notice of application is published in the FMCSA Register if a carrier also is seeking commercial operating authority. (§ 365.109) The proposed 90-day time period combines the existing 20-day initial deadline and 60-day extension period and adds 10 more days for Agency processing.

Section 4303(b) of SAFETEA-LU amended 49 U.S.C. 13906(a) to establish December 10, 2005 as the deadline for existing exempt for-hire motor carriers to make insurance filings with FMCSA, making it unnecessary to propose a grace period for financial responsibility filings. Inasmuch as section 13906(a) excluded private motor carriers registered with the Agency under 13905(b) from the expedited financial responsibility filing requirement, and in the interest of treating all applicants who must file evidence of financial responsibility equitably, the Agency will not include in proposed § 390.103 a 180-day grace period for financial responsibility filings by existing exempt for-hire or private motor carriers. Such carriers would have to file by the effective date of the final rule.

The SNPRM includes, in proposed § 366.2(b), a 180-day grace period for all existing private and exempt for-hire motor carriers to file process agent designations. The grace period would be calculated from the final rule compliance date. The FMCSA believes the 180-day time period for existing private and exempt for-hire motor carriers to make process agent designations is necessary for Agency IT systems to accommodate the anticipated one-time surge in the number of filings from this group and to provide them adequate time to comply with the new filing requirements.

7. The Application Process

The Agency proposed in the NPRM a new multi-step application process and procedures for issuance of a USDOT Number under which applicants would initially be assigned temporary numbers to track the application through the registration process and enable applicants and their agents to make required administrative filings using the tracking number. Under this proposal, an applicant would not receive a USDOT Number until all necessary filings were made and would be prohibited from commencing operations until the USDOT Number was issued.

The Owner-Operator Independent Drivers Association, Inc. (OOIDA) and Missouri Department of Transportation (MODOT) supported the proposed multi-phase application process. MODOT further stated that waiting until an application has passed initial screening before issuing a USDOT Number is a valid approach.

The American Trucking Associations, Inc. (ATA) commented that because USDOT Numbers and provisional registrations would no longer be issued at the time of application under the NPRM proposal, new carriers may be delayed entry into the market. ATA urged the Agency to supply applicants with temporary tracking numbers immediately upon receipt of the application and provide the applicant a point of contact at FMCSA. Greyhound stated that temporary tracking numbers would cause tremendous confusion and the Agency should issue a tentative USDOT Number at the beginning of the process, making the number permanent at the conclusion of the process.

The MODOT, the Iowa Department of Transportation (IADOT), the American Association of Motor Vehicle Administrators (AAMVA), ATA, and the National Conference of State Transportation Specialists (NCSTS) filed comments opposing the proposed system. MODOT commented that as a partner in the implementation of the Federal safety fitness program it should be able to continue to issue USDOT Numbers under PRISM. AAMVA echoed the same concern, adding that if States are not able to issue USDOT Numbers, their resulting inability to deliver accurate and timely customer service will cause substantial delay for carriers wishing to enter the market. ATA found it “very disturbing” that the process for issuing USDOT Numbers and for updating MCS-150 data may conflict with PRISM requirements in such a way as to delay the vehicle registration of International Registration Plan (IRP) fleets. IADOT commented that under the NPRM the States' inability to issue USDOT Numbers to interstate carriers and registrants would have the following adverse impacts: (1) Increased processing time for first-time motor carriers, especially private carriers; and (2) increased costs for private and exempt carriers to operate.

OOIDA urged FMCSA to ensure that States retain the ability to issue USDOT Numbers to registering owner-operators. OOIDA suggested that a simple separate electronic form should be used when a vehicle is registered, and owner-operator USDOT Numbers could be maintained in the URS system.

After careful consideration of all filed comments and discussions with PRISM States that issue USDOT Numbers to carriers on FMCSA's behalf, the Agency has withdrawn the proposal to issue a temporary tracking number to applicants and issue a USDOT Number only after applicable administrative filings have been completed. Under proposed § 390.101(c)(2), each applicant would be issued an inactive USDOT Number. The inactive USDOT Number would be activated by the Agency only after the applicant has filed applicable administrative filings such as evidence of financial responsibility or a process agent designation. If a carrier also is seeking operating authority, the USDOT Number would remain inactive until all protests filed under 49 CFR part 365 have been resolved and the applicant has filed applicable administrative filings. The Agency also proposes new § 392.9b to prohibit a motor carrier with an inactive USDOT Number from operating a CMV and to establish penalties for violating the prohibition. This change has been made in order to allow PRISM States to continue to offer one-stop services to carriers and to better enable PRISM States to track and monitor carriers' safety performance. PRISM States and insurance companies would have had to alter their IT systems and administrative processes to accommodate the issuance of temporary tracking numbers, which would have been costly and time-consuming. The FMCSA believes its current proposal is the most transparent and efficient model.

The FMCSA plans to collaborate with PRISM States in developing a unified message to notify motor carriers, at the time of registration, that operating with an inactive USDOT Number would result in enforcement at the Federal and State levels. During vehicle registration, PRISM States would inform the motor carrier that its license plates would be suspended if its application for operating authority is denied as a result of the protest process, if appropriate administrative filings are not made within a specified number of days, and/or if its application is rejected during FMCSA review under 49 CFR 365.109.

8. Revisions to Proposed Application Form MCSA-1

The Agency proposed in the NPRM to combine the data elements now captured on several different licensing, registration and certification forms into a single, new application form called the Form MCSA-1. Commenters generally supported the use of a single form but urged that the form be as simple as possible. Although ATA generally supported the scope of the proposed Form MCSA-1, it argued that the benefits the new form could provide may be outweighed by problems caused by an unwieldy, complex, and inconvenient form. ATA urged the Agency to ensure that the form is as simple as possible for use by the majority of the trucking industry, which largely consists of small business entities. In particular, ATA said it is important for the form and its instructions to be clear regarding the transactions for which the form is to be used and the compliance requirements for each transaction type. ATA believes Form MCSA-1 should be concise and devoid of requests for safety- and non-safety-related information that are not required by the current FMCSRs and HMRs. Finally, ATA urged the Agency to review and eliminate all entries on Form MCSA-1 and its appendices that do not contain critical data needed for the registration process (

i.e.,

research data).

The Utah Department of Transportation (UTDOT) and the Utah Trucking Association (UTA) supported combining the filings in one form and using one online central access point for motor carriers, freight forwarders, and property brokers while providing an alternative for “mom and pop” companies that do not utilize computers.

The OOIDA supported combining several existing forms into one new form and urged the Agency to make the form available in hard copy to filers who are not “computer-savvy.” OOIDA supported the proposed collection of carrier and cargo classification and HHG arbitration information. OOIDA stated that the Bureau of Transportation Statistics (BTS) should continue to collect motor carrier financial information and sought verification that the collection of information on the new form is not intended to replace BTS information collection activities.

Greyhound believed proposed Form MCSA-1 and the instructions for its completion are somewhat confusing and need to be revised to be more user friendly. Greyhound and ABA recommended that the Agency “require applicants to demonstrate they are in compliance with the Americans with Disabilities Act (ADA) [[Pub. L. 101-336, Title I, § 102, July 26, 1990, 104 Stat. 331] as amended].” The Community Transportation Association of America (CTAA) applauded the Agency's efforts to unify all registration information into a single form but suggested some minor modifications to the proposed form.

The National Propane Gas Association (NPGA) believed information about gross operating revenue should not be collected. NPGA stated the Form MCSA-1 instructions are unclear regarding whether a hazardous materials shipper is required to file Form MCSA-1 and requested that the Agency modify the instructions to explicitly state that the proposed form would not apply to hazardous materials shippers. The Corporate Transportation Coalition (CTC) stated that there must continue to be a way to distinguish between private and for-hire carriers and recommended that private carriers not be required to submit financial data or other information unrelated to the safe operation of their truck fleets.

The American Moving and Storage Association (AMSA) commented that the more detailed and tougher congressional registration requirements for HHG movers should be incorporated in the URS rule. Advocates for Highway and Auto Safety (Advocates) supported the inclusion of the new entrant provisions in the URS rule.

The FMCSA agrees that proposed Form MCSA-1 should be as simple and easy to use as possible, consistent with the need to collect the necessary information. The FMCSA has reviewed the draft Form MCSA-1 and instructions in light of the various comments and made revisions to clarify the form and instructions and to eliminate extraneous material.

The Agency proposes to revise the MCSA-1 form and instructions to collect registration information from all FMCSA regulated entities, except Mexico-domiciled long-haul carriers. Because hazardous materials shippers are not subject to the FMCSRs, the Agency also proposes to exclude them from the Unified Registration System. Conforming amendments are proposed for Form MCSA-1 and instructions as well. As mentioned previously, the URS rule was impacted by new provisions enacted by SAFETEA-LU and subsequently promulgated final rules, which brought new entities under FMCSA's registration jurisdiction (such as intermodal equipment providers and non-North America-domiciled motor carriers). To accommodate these

changes, the Agency proposes changes to the MCSA-1 form and instructions, including additional questions and new or relocated sections as follows:

MCSA-1 Form—URS NPRM version

MCSA-1 Form—URS SNPRM version

Section A—Business Description

Section A—Business Description

Section B—Motor Carriers

Section B—General Operational Information

Section C—Hazardous Materials (HM)

Section C—Hazardous Materials (HM)

Section D—Transportation of Household Goods

Section D—Hazardous Materials Permitting

Section E—Commercial Zone Operations

Section E—Cargo Tank Facility

Section F—Additional Information

Section F—Transportation of Household Goods

Section G—Safety Certifications

Section G—Transportation of Passengers

Section H—Certifications

Section H—Scope of Authority

Section I—Cancellation

Section I—Commercial Zone Operations

Section J—Filing Fee Information

Section J—Non-North America-Domiciled Carriers

Attachments to Section G (Supplemental information required only from a Mexico-domiciled motor carrier)

Section K—Additional Information

Section L—Safety Certifications (Certifications applicable only to Mexico- or Non-North America-domiciled motor carriers)

Section M—Compliance Certifications

Section N—Applicant's Oath

Section O—Filing Fee Information

Attachments to Section L—Supplemental Information required only from a Mexico- or Non-North America-domiciled motor carrier

Consistent with provisions under section 4204 of SAFETEA-LU, FMCSA proposes collection of additional registration information from HHG motor carriers as follows: (1) Evidence of participation in an arbitration program and a copy of the notice of the arbitration program as required by section 14708(b)(2); (2) identification of the carrier's tariff and a copy of the notice of availability of the tariff for inspection as required by section 13702(c); (3) evidence that carriers have access to, have read, are familiar with, and will observe all applicable Federal laws relating to consumer protection, estimating, consumers' rights and responsibilities, and options for limitations of liability for loss and damage; and (4) disclosure of any relationships involving common stock, common ownership, common management, or common familial relationships between filing carriers and any other motor carriers, freight forwarders, or property brokers of HHG within 3 years of the proposed date of registration.

The FMCSA also proposes the following improvements to Form MCSA-1 and the instructions:

• Elimination of a requirement for U.S.- and Canada-domiciled motor carriers to submit a “description of a retraining and educational program for poorly performing drivers.” The form will continue to require a certification that a motor carrier has in place “a system and procedures for ensuring the continued qualification of drivers to operate safely, including a safety record for each driver, procedures for verification of proper age and licensing of each driver, and procedures for identifying drivers who are not complying with the safety regulations.” The revised certification removes a requirement not contained in the FMCSRs and is less burdensome.

• The Agency previously proposed a vehicle certification which read: “My vehicles were manufactured or have been retrofitted in compliance with the applicable USDOT Federal Motor Vehicle Safety Standards.” The SNPRM revises the proposed certification to read “The carrier will ensure, once operations in the United States have begun, that all vehicles it operates in the United States were manufactured or have been retrofitted in compliance with the applicable USDOT Federal Motor Vehicle Safety Standards or Canadian Motor Vehicle Safety Standards in effect at the time of manufacture.” The Agency believes the new language clarifies the carrier's responsibility to ensure that no vehicle may be operated in the United States unless it complies with the applicable vehicle safety standards.

• The Agency proposes revisions to Form MCSA-1 to collect information regarding ADA compliance. Although the Over-the-Road Bus Accessibility Act of 2007 [Pub. L. 110-291, 122 Stat. 2915, July 30, 2008] requires FMCSA to consider compliance with DOT's ADA regulations at 49 CFR part 37, subpart A, as an element of an over-the-road bus company's fitness for receiving new operating authority, it does not require the inclusion of detailed ADA compliance information in the application form. Nonetheless, to assist in ensuring ADA compliance, FMCSA will take the following actions:

○ Ask the following questions regarding ADA compliance during the new entrant safety audit—

• Does the carrier have the means to provide accessible over-the-road bus (OTRB) service on a 48-hour advance notice basis by its owned or leased OTRBs?

• If the carrier does not have the means then does the carrier have an arrangement with another carrier that operates accessible OTRBs?

○ If noncompliance with DOT's ADA regulations is discovered in the course of a new entrant safety audit or compliance review, FMCSA will either forward the information to the U.S. Department of Justice (DOJ) for appropriate action or conduct its own investigation and attempt to resolve the violations, in accordance with a February 2009 Memorandum of Understanding between DOJ and DOT executed pursuant to Public Law 110-291. (A copy of the Memorandum of Understanding has been placed in the docket for this rulemaking).

○ Refer any non-compliant motor carrier that is also a recipient of DOT financial assistance to FTA for administrative enforcement action, as appropriate. FTA administers a program that provides financial assistance to some over-the-road bus carriers and, consistent with section 504 of the Rehabilitation Act of 1973 (29 U.S.C. 794), as amended, and DOT rules implementing it (49 CFR part 27), cannot provide such assistance to carriers who are out of compliance with their ADA obligations.

○ When appropriate, initiate action to amend, suspend, or revoke a carrier's registration based on willful noncompliance with DOT's ADA regulations

FMCSA proposes conforming amendments to align 49 CFR 365.105 with certain information on Form MCSA-1. In proposed § 365.105, the Agency replaces references to obsolete OP series forms with “Form MCSA-1” and reduces the number of operational categories from six to three so it is clear that the fee for operating authority applies only to the general categories of motor carrier, broker and freight forwarder and not to each individual subgroup of these categories listed in Section A, question 17 of Form MCSA-1. (see Instructions for Form MCSA-1, item number 50)

In proposed § 365.107, the Agency replaces references to OP series forms with “Form MCSA-1.” Also, the Agency proposes to remove obsolete references to common and contract carriage as required by 49 U.S.C. 13902(f), as amended by section 4303(c) of SAFETEA-LU.

9. Adoption of an Exclusively Online Electronic Registration System

Several commenters filed comments about the effect of a mandatory online filing requirement, including a possible phase-in period for mandatory online filing. ATA supported the emphasis on online filing and said it should be made mandatory with a 2 to 3 year phase-in period. NCSTS stated that a minimum 5-year phase-in period is needed before electronic filing becomes mandatory and suggested that FMCSA maintain an alternative system to allow paper filings during systems failures and computer outages. The Property Casualty Insurers Association of America (PCIAA) also favored phased-in mandatory electronic filing.

The Petroleum Marketers Association of America (PMAA), the American Insurance Association (AIA), and OOIDA opposed mandatory electronic filing. PMAA stated that some of its members would be unable to access the Internet and urged the Agency to keep the paper filing option available. OOIDA asserted electronic filing is a hardship for some parties, opposed mandatory electronic filing and stated a 5-year phase-in period is absolutely necessary in the event mandatory electronic filing is adopted. OOIDA also stated that FMCSA should provide an alternative back-up system to online filing.

The Agency believes mandatory electronic filing is feasible and would result in substantial cost savings to both filers and FMCSA. Currently, an estimated 88 percent of motor carriers in the United States have Internet access, and this number is steadily growing. Furthermore, the Internet is publicly accessible via libraries and other public facilities. Electronic filing is cost effective and would incorporate automated error checking, reduce processing time, and facilitate faster issuance of USDOT Numbers. A detailed cost/benefit analysis performed by the Agency supporting this position, titled “Report on Benefits and Costs of Mandatory Electronic Filing of FMCSA's Unified Registration System,” is included as Appendix A to the regulatory evaluation. The conclusions of this analysis are reported in the URS SNPRM under Section IV, titled “Regulatory Evaluation of the URS SNPRM: Summary of Benefits and Costs.”

Based on the year-to-year increases in the percentage of electronic filings for the Agency's MCMIS data, the Agency estimated that, even in the absence of a mandatory electronic filing requirement, the percentage of electronic filers would range between 80 and 90 percent. The FMCSA developed projections of the numbers of new registrants expected to enter the industry from 2014 to 2023 and assessed the costs of electronic filing both for new registrants and for existing firms that file biennial updates.

Mandatory electronic filing would only impose a cost on firms that would otherwise have filed by paper due to a lack of computer skills and/or Internet access. The results of FMCSA's analysis showed that costs to these affected firms would be low, ranging from $12.73 to $80.00 for new registrants and from $3.14 to $51.53 for firms with recent activity filing biennial updates. The low end of these cost ranges are for firms that file their registrations at a public library, and the high end is for firms that would hire another entity to complete the forms on their behalf. The FMCSA also prepared estimates of the benefits of mandatory electronic filing, consisting of estimates of the value of time saved by carriers and the value of substantially more rapid receipt of operating authority, as well as benefits to FMCSA from electronic filing. A comparison of the costs and benefits indicated that mandatory electronic filing would result in anticipated benefits of more than $38 million.

The FMCSA confirmed that the Small Business Administration (SBA) would not consider a totally electronic registration system to be a barrier to entry for small businesses, if the cost-benefit analysis supported the proposal. Based on its analysis, FMCSA proposes a mandatory electronic registration system. The system would incorporate electronic signature technology for required signatures. Supplemental documentation required for registration would be accepted electronically as well. The system would include the capability to upload scanned or electronic versions of this information.

The Agency does not propose a phase-in period because it anticipates that most entities should have online access when the URS rule becomes effective. The Agency would provide adequate time to adjust to the electronic filing requirement when setting the compliance date for the final rule, and would adopt procedures to ensure continued operational capability in case of system failure.

10. Transfers of Operating Authority

This SNPRM withdraws the proposal that entities, when submitting a revised Form MCSA-1 due to a change of name, form of business, or address, must also submit a certification that there has been no change in the ownership, management, or control of the entity. While the Agency has determined that the ICCTA removed its statutory authority to review transfers of operating authority, the ICCTA did not prohibit such transfers. Therefore, FMCSA also would eliminate 49 CFR part 365, subpart D, governing transfers of operating authority. A motor carrier would be required, however, to identify any current management official (

e.g.

Owner, President, Vice President, Safety Director,

etc.

) responsible for motor carrier safety in its operation who was hired after the last update when completing the Form MCSA-1 biennial registration update. A motor carrier that changes its name, form of business, or address would retain its existing USDOT Number.

Regarding the comments about the practice of “churning” (motor carriers `reincarnating' by registering for a new USDOT Number in an attempt to conceal a negative safety history), the Agency believes that existing regulations, the proposals contained in this SNPRM and the requirements in 49 CFR part 385, together with procedures adopted and recently implemented by the Agency for review of motor carrier applications for operating authority, will discourage this practice. In this SNPRM, the Agency also proposes to require information on motor carrier ownership on the Form MCSA-1 to be filed with the Agency prior to receipt of a new USDOT Number. This information would assist the Agency in identifying individuals involved in churning and rejecting their applications for new registration when

appropriate. The Agency also believes that the requirement under 49 CFR part 385 for all new entrants (carriers receiving a new USDOT Number) to undergo a safety audit within 18 months of beginning operation will deter carriers from engaging in this practice.

In addition, motor carriers required to obtain operating authority pursuant to 49 CFR parts 390 and 365 may be subject to FMCSA review procedures established under 49 CFR 365.109. Currently, FMCSA utilizes these procedures for review of applications for household goods motor carrier, broker, freight forwarder or passenger carrier authority. However, in the future the Agency anticipates expanding the program to include applications from all motor carriers that require operating authority. Employing procedures established under § 365.109, the Agency reviews applications for completeness and for conformity with the safety fitness standard. Through this process, if the Agency determines that a carrier is not fit, willing and able to comply with applicable statutes and regulations, the motor carrier's application for operating authority will be rejected. In the event an application is rejected, an appeal may be filed with the Agency pursuant to 49 CFR 365.111. In this SNPRM the Agency proposes revising 49 CFR 365.111 and 365.203 to provide the address and appropriate office for appeals of rejections and for protests.

11. Cancellation, Reinstatement, and Deactivation of USDOT Registration

In the NPRM, the Agency proposed that a motor carrier seeking to reinstate its USDOT Registration more than 2 years after its registration was deactivated would be classified as a new entrant. In setting the proposed threshold for reclassification of a carrier as a new entrant at 2 years, the Agency sought to prevent carriers that go in and out of business for very short periods of time from being required to re-enter the New Entrant Safety Assurance Program.

The OOIDA disagreed with the Agency's statement that a carrier that has been inactive for more than 2 years is functionally equivalent to a new entrant. OOIDA explained that many motor carriers, including owner-operators, may operate under another carrier's authority for a period of time for economic reasons. In these cases, OOIDA believes the Agency is not justified in proposing to require the carrier to pay a new registration fee and to undergo a new safety audit as a condition for activating registration.

Advocates supported the proposal that carriers that have been inactive for more than 2 years be treated as new entrants and be required to successfully complete the New Entrant Safety Assurance Program.

Consistent with the new regulatory drafting strategy for the SNPRM, the Agency is not proposing to make changes to its New Entrant Safety Assurance Program. While the New Entrant Safety Assurance Program is triggered by the registration process, it is a separate program whose governing regulations are codified under 49 CFR parts 365 and 385. This SNPRM addresses cancellation, reinstatement and deactivation of USDOT Registration/operating authority only from the standpoint of fees and other administrative requirements. The Agency recently published revisions to its New Entrant Safety Assurance Program, including regulations governing reinstatement. (“New Entrant Safety Assurance Process; Final Rule,” published on December 16, 2008 at 73 FR 76472).

12. Additional Proposals Regarding Special Transit Operations (Federal Transit Administration (FTA) Grantees)

The non-profit organization CTAA, which represents public and community-based FTA grantees, generally supported the provisions of the NPRM applicable to FTA grantees. However, CTAA suggested that the Agency revise the rule to: (1) Clarify that the requirements would apply to motor carriers of passengers that participate in interlining or through-ticketing arrangements with one or more interstate for-hire motor carriers of passengers; (2) designate an Agency point of contact to assist FTA grantees in completing their applications; and (3) amend proposed Form MCSA-1 to include specific information applicable to FTA grantees, including governmental status, transit areas, certification of compliance with FTA (not FMCSA) drug and alcohol testing regulations, and a statement that FTA grantees need not pay a filing fee. CTAA urged FMCSA to permit risk retention groups and other forms of pooled insurance as ways to satisfy the Agency's financial responsibility requirements. Finally, CTAA stated that the regulations should take into account the effect on FTA programs of the last two comprehensive reauthorization statutes.

Greyhound and ABA supported clarifying the status of transit providers that operate entirely within one State but participate in interline relationships with interstate carriers. They agreed that FMCSA should explicitly state that such transit providers are not subject to the FMCSA insurance requirements but rather must meet the insurance requirements of the States in which they operate.

The Rhode Island Public Transit Authority (RIPTA) asserted that the NPRM offered little relief from what it considers a burdensome and confusing system of compliance with FMCSA, the Federal Highway Administration (FHWA), and FTA requirements. The Ohio Department of Transportation (ODOT) said the Agency must: (1) Clearly define the difference between a “for-hire” CMV and a public FTA-funded transit vehicle that travels across State lines beyond a contiguous jurisdiction; (2) address the type of public transportation system that is operated by a designated grantee (whether government or private non-profit); (3) exempt vehicles transporting between 9 and 15 passengers and originating and terminating in the same State but traveling through an adjacent State for operational convenience; and (4) permit financial responsibility requirements to be satisfied through participation in shared risk programs, such as Ohio's County Risk Sharing Authority.

The OOIDA opposed relieving FTA grantees of the requirement to pay filing fees, contending the NPRM provides no rationale for relieving what are essentially private companies with a government contract of their fair share of the cost of the registration program.

In response to these comments, FMCSA proposes under §§ 390.101(b) and 387.33(b) to clarify the specific URS registration and financial responsibility obligations for FTA grantees. Although all FTA grantees would be required to register with FMCSA and would receive a fee waiver, their financial responsibility requirements could differ, depending on the FTA program under which the grantee receives funding. The proposed minimum financial responsibility requirement for a grantee that provides transportation within a transit service area located in more than one State under an agreement with a Federal, State, or local government funded, in whole or in part, with a grant under 49 U.S.C. 5307, 5310 or 5311 is the highest level of financial responsibility required for any of the States in which it operates. An FTA grantee that receives funding under other grant programs (section 5316 and 5317 grantees) would be subject to the general financial responsibility requirements applicable to for-hire passenger carriers that do not receive FTA funding. The different financial responsibility requirements are due to the fact that 49 U.S.C. 31138(e)(4) expressly exempts section 5307, 5310

and 5311 grantees from the Federal general financial responsibility requirements and instead subjects them to applicable State requirements. The exemption does not cover section 5316 and section 5317 grantees; neither the Transportation Equity Act for the 21st Century (TEA-21) [Pub. L. 105-78, 112 Stat. 107, June 9, 1988] nor SAFETEA-LU amended 49 U.S.C. 31138 to expressly exclude them from the Federal financial responsibility requirements.

The Agency proposes to incorporate all but one of CTAA's recommended changes to Form MCSA-1. The FMCSA could not add a cross reference to existing FTA drug and alcohol regulations to the Drug and Alcohol Safety Certification because the Drug and Alcohol Safety Certifications under Section L of Form MCSA-1 apply only to Mexico- or non-North America-domiciled motor carrier applicants—entities that are ineligible to receive FTA grants. (See Section L, question 47, III, 1 on proposed Form MCSA-1).

With respect to ODOT's suggestion to differentiate between for-hire motor carriers and public transit vehicles, and to exempt certain types of vehicles and transportation from the URS requirements, the Agency notes that public transit vehicles are a subset of for-hire CMVs. Accordingly, the Agency declines to distinguish between for-hire motor carriers and public transit vehicles for purposes of registration under proposed part 390, subpart C. Moreover, the Agency is not authorized to grant ODOT's request to exempt from registration requirements those vehicles transporting between 9 and 15 passengers and originating and terminating in the same State but traveling through an adjacent State for operational convenience. The Agency recognizes the limited exemption from the Federal minimum financial responsibility requirements set forth in proposed § 387.33(b) granted to certain public transit operators, pursuant to 49 U.S.C. 31138(e)(4). However, the exemption from the minimum financial responsibility requirements does not include those operators providing service in more than one State from having to file proof of financial responsibility pursuant to the minimum levels set by State law.

The CTAA and ODOT additionally requested that the Agency allow transit operators to satisfy financial responsibility requirements through shared risk programs. CTAA characterizes such shared risk programs as “risk retention groups and other forms of `pooled' insurance * * * .” In responding to these comments, the Agency must first distinguish between risk retention groups and risk pools.

Risk retention groups (RRGs) are established under the Liability Risk Retention Act of 1981 [Pub. L. 97-45, 95 Stat. 949, September 25, 1981] and are defined at 15 U.S.C. 3901(a)(4). According to a 1987 ICC Policy Statement, which authorized the Commission to accept certificates of insurance from RRGs, those entities are required by Congress to:

(1) Be chartered or licensed under the laws of a State as a liability insurance company and authorized by such State's laws to engage in the business of insurance;

(2) [Not] exclude any person from membership solely for the purpose of providing existing members of such group a competitive advantage over the excluded person;

(3) Have as its owners only persons who comprise the membership of the Risk Retention Group and who are provided insurance by the group, or has as its sole owner an organization which has as its members only persons who are members of the Risk Retention Group; and

(4) Be formed by persons who are engaged in businesses or activities similar or related as to the liability to which they are exposed by virtue of related, similar or common business,

etc.

Implementation of Liability Risk Retention Act of 1986,

Ex Parte No. MC-178 (Sub-No. 4), 1987 WL 98199, at *1 (decided Mar. 31, 1987) (“ICC Policy Statement”). The ICC Policy Statement indicated that RRGs “are unquestionably insurance companies, and can meet the criteria prescribed for insurance * * * companies in 49 CFR 1043.8 * * *.”

Id.

at *2. Former § 1043.8 is the predecessor to current 49 CFR 387.315. The FMCSA continues to accept RRG filings.

Insurance risk pools are typically private associations operated on a statewide basis for the benefit of their members. The main distinction between risk pools and RRGs is that risk pools do not meet the statutory requirements established for RRGs under the Liability Risk Retention Act of 1981. The public transit risk pools allow the State and municipal transit operators to achieve economies of scale in purchasing insurance resulting in lower premiums and other benefits to the limited membership. Transit risk pools are generally approved by the State and supported by the State Departments of Transportation.

Unlike RRGs, State and local government risk pools generally have not been approved by FMCSA as an acceptable form of insurance pursuant to the section 13906 requirement that the Secretary “register a motor carrier under section 13902 only if the registrant files with the Secretary a bond, insurance policy or other type of security approved by the Secretary * * *.” The Agency's position has been that risk pools do not qualify as a bond or insurance policy, and that a motor carrier may meet the financial responsibility requirements through self-insurance only if the insured applies for approval under the Agency's self-insurance program.

This issue is complicated by section 31138(e)(4), which exempts transit operators receiving Federal grants under 49 U.S.C. 5307, 5310, or 5311 from both the amounts and type of financial responsibility that must be provided as evidence of compliance with the financial responsibility requirement. Section 31138(e)(4) further provides, however, that where the transit service area is in more than one State, the minimum level of financial responsibility shall be the highest level required for any of such States. This requirement has been incorporated into proposed § 387.33(b). The above notwithstanding, these exempted transit services operators still are subject to registration under 49 U.S.C. 13902(b)(2) and are required to register and provide proof of insurance pursuant to proposed § 365.109.

Pursuant to 49 U.S.C. 13906(a)(1), the “Secretary may register a motor carrier under section 13902 only if the registrant files with the Secretary a bond, insurance policy, or other type of security approved by the Secretary, in an amount not less than such amount as the Secretary prescribes pursuant to, or as is required by, sections 31138 and 31139, and the laws of the State or States in which the registrant is operating, to the extent applicable.” Section 387.301 currently permits motor carriers to satisfy their financial responsibility requirements by filing proof of such “other securities” as the Secretary approves.

This proposed rule expressly addresses registration and insurance requirements for certain types of transit operators. It is therefore appropriate to resolve confusion that has arisen in this area. The Agency recognizes that allowing these transit operators to utilize State-approved risk pools would expand the types of security approved by the Secretary for certain transit service operators and harmonize the provisions of sections 31138(e)(4) and 13906(a)(1) by recognizing the State's approved form of financial responsibility for these operators. As a

result, the Agency intends to publish a separate

Federal Register

notice that will describe the Agency's proposed change in policy to allow transit service providers that fall under the provisions of proposed § 387.33 to utilize State-approved risk pools in order to meet the State financial responsibility requirements pursuant to section 31138(e)(4) and proposed § 387.33.

13. Temporary Operating Authority

Former 49 U.S.C. 10928(b) allowed the ICC, which was sunsetted in 1995, to issue temporary authority to provide transportation to a place or in an area having no motor carrier capable of meeting the immediate needs of the place or area. Former section 10928(c) permitted the ICC to issue emergency temporary authority if, due to emergency conditions, there was insufficient time to process an application for temporary authority.

Temporary authority was originally made available because it took several months for the former ICC to process applications for permanent operating authority, particularly if competing carriers protested the application. Following changes in statutory standards which led to greatly reduced application processing time, the ICC limited the issuance of temporary authority to “exceptional circumstances (

i.e.,

natural disasters or national emergencies) when evidence of immediate service need can be specifically documented * * *.” [See existing 49 CFR 365.107(g)]. FHWA (and later FMCSA) retained this provision when the ICC operating authority regulations were transferred to USDOT in 1996.

The ICCTA repealed 49 U.S.C. 10928(b) and (c) and did not enact any comparable provisions expressly authorizing the issuance of temporary authority. However, the ICCTA does not prohibit the issuance of temporary authority and 49 U.S.C. 13905(c) provides that any registration issued to motor carriers, freight forwarders, and property brokers under chapter 139 shall remain in effect for such period as the Secretary determines appropriate by regulation. Therefore, there is general statutory authority to continue issuing temporary authority. However, the NPRM did not include a provision permitting motor carriers to obtain temporary registration or operating authority.

Greyhound requested that the Agency grant temporary operating authority to prevent service disruptions which may occur as a result of Greyhound's restructuring its nationwide service. Greyhound believes replacement companies will not be able to obtain operating authority before it abandons certain routes. Greyhound claimed it provides at least 30 days notice before it discontinues a route and cannot provide more notification time “if the restructuring is to be implemented in a timely manner.” Greyhound proposed the Agency adopt a process by which emergency temporary authority would become effective immediately upon the filing of a temporary authority application and proof of insurance and would remain in effect until FMCSA processed the permanent application, perhaps 90 days. ABA also supported the Greyhound proposal.

The FMCSA believes that continued issuance of temporary operating authority as limited under § 365.107(g) is warranted. During the Hurricane Katrina relief effort in 2005, FMCSA received numerous applications for emergency temporary authority pursuant to § 365.107(g) and the Agency believes that having a procedure for the issuance of temporary operating authority will enhance future emergency relief efforts. However, except in extraordinary circumstances such as natural disasters, the Agency does not anticipate many requests for such applications. We believe Greyhound overstates the time it takes FMCSA to currently process applications for operating authority and its comments do not provide a convincing rationale for extending the current requirements to prospective “emergencies” caused by manageable business decisions. Under proposed § 365.107(e), FMCSA would grant temporary operating authority only in cases of national emergency or natural disaster and following an emergency declaration under 49 CFR 390.23. Entities granted temporary operating authority would need to file evidence of financial responsibility with the Agency.

14. NTSB Recommendation Impacting Cargo Tank Applications and Updates

After investigating a 2009 incident involving the rollover of a truck-tractor and cargo tank semitrailer and the resulting fire, the National Transportation Safety Board (NTSB) made 20 draft recommendations to four DOT modal administrations, including FMCSA, and the American Association of State Highway and Transportation Officials. As part of a recommended rollover prevention program, NTSB recommended that FMCSA revise the MCS-150 form to require hazardous materials carriers to report the number and types of U.S. Department of Transportation specification cargo tanks owned or leased by the carriers and provide other pertinent data displayed on the specification plates of such tanks. NTSB recommended that FMCSA require this information to be updated annually. As FMCSA proposes to replace the MCS-150 form with the new MCSA-1 form through this rulemaking, the Agency believes it would be appropriate to solicit information from the public regarding:

(1) Whether the MCSA-1 form should be revised to incorporate the NTSB recommendation;

(2) Whether the collection of additional information regarding cargo tanks would prove useful in connection with a rollover prevention program;

(3) Whether cargo tank carriers should be required to submit updated data more frequently than biennially. If so, what event should trigger the update requirement;

(4) What would be the burden associated with collecting additional cargo tank information biennially or more frequently;

(5) Whether there are alternatives for collecting this information; and

(6) Whether this information is already being collected by other entities, such as State Departments of Motor Vehicles.

IV. Regulatory Evaluation of the URS SNPRM: Summary of Benefits and Costs

A. Summary

The FMCSA has revised its 2005 NPRM in response to congressional mandates included in SAFETEA-LU and in response to comments to the May 2005 NPRM. In this section of the SNPRM, FMCSA summarizes its calculation of the costs and benefits associated with the changes included in this proposed rulemaking. Although many of the revisions proposed under URS would result in changes to existing fees paid by motor carriers (creation of new fees or elimination of existing fees), these changes would result in a shifting of fees from one group to another and would not result in a net gain (benefit) or loss (cost) from a societal perspective. For example, if FMCSA were to eliminate a fee previously paid by motor carriers, that group would receive a benefit. However, the benefit would be offset by an equal cost to the Agency in the form of lost revenues. The FMCSA classified the costs and benefits calculated in the regulatory evaluation as either changes in fees, resource costs, or benefits. Changes in fees are neutral from a societal perspective, but changes in resource costs and benefits result in either a cost or a benefit to society. The

FMCSA estimated the costs and benefits associated with implementing the following proposed major URS SNPRM provisions:

• A new requirement for private and exempt for-hire motor carriers, cargo tank facilities, and intermodal equipment providers (IEPs) to pay FMCSA registration fees;

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Throughout this section, cargo tank facilities and IEPs are referred to as “other entities.”

• A new requirement for private carriers and exempt for-hire motor carriers to file proof of process agent designations with FMCSA;

• A new requirement for private HM and exempt for-hire motor carriers to file proof of liability insurance with FMCSA;

• A reduction of the current reinstatement fee for non-exempt for-hire motor carriers, brokers and freight forwarders and new reinstatement fees for exempt for-hire and private hazmat motor carriers;

• Elimination of operating authority transfers and filing fees for name changes;

• Introduction of new Form MCSA-1 filing requirements; and

• Mandatory electronic filing of Form MCSA-1.

Table 1 presents the total costs associated with the URS SNPRM. The URS proposal results in an anticipated resource cost to industry of $26,342,699 and a resource cost to FMCSA of $135,158 over the 10-year analysis period (2014-2023). The total societal cost of the SNPRM is thus $26.5 million ($26,342,699 + 135,158). The industry also would experience an increase in fees of $65.3 million, and the Agency would experience a decrease in fee revenues of $6.7 million.

Table 1—Total Costs of URS Proposed Rule

URS Rule provision

Resource costs

Industry

Agency

Fees paid/lost

Industry

Agency

Mandatory Electronic Filing

$538,894

$0

$0

$0

Eliminating Transfer/Name Change Requirements

0

0

0

1,854,890

New Registrant Fee

0

0

63,583,722

0

Insurance Filing

676,723

0

1,691,808

0

Process Agent Filing

25,067,012

0

0

0

Cancellations and Reinstatements

60,070

135,158

0

4,808,126

New MCSA-1 Application Form

0

0

0

0

Total Costs

26,342,699

135,158

65,275,530

6,663,017

Note:

Numbers may not add due to rounding.

Table 2 presents the total benefits of the URS rule for each provision. For the industry, total benefits amount to $3.3 million and fee savings amount to $6.7 million. For the Agency, total benefits amount to $42.7 million and $65.3 million in fees received. This proposal would improve the ability of FMCSA safety investigators to locate small and medium-sized private and exempt for-hire motor carriers for enforcement action because investigators would be able to work with the newly-designated process agents to locate hard-to-find motor carriers. The Agency believes that a more efficient Compliance, Safety, Accountability (CSA) program would lead to increased safety benefits. However, to present a conservative estimate of the benefits of the URS rule, we only estimate the benefit of time saved by the Agency due to a more efficient CSA program.

Table 2—Total Benefits of URS Rule

[10-year present value]

URS rule provision

Benefits

Industry

Agency

Fees received/saved

Industry

Agency

Mandatory Electronic Filing

1,964,186

36,190,320

0

0

Eliminating Transfer/Name Change Requirements

0

0

1,854,890

0

New Registrant Fee

0

0

0

63,583,722

Insurance Filing

0

0

0

1,691,808

Process Agent Filing

0

3,130,736

0

0

Cancellations and Reinstatements

0

0

4,808,126

0

New MCSA-1 Application Form

1,354,631

3,391,089

0

0

Total Benefits

3,318,817

42,712,146

6,663,017

65,275,530

Note:

Numbers may not add due to rounding.

The FMCSA calculated the net societal benefits of the proposed rule by subtracting the total (industry and Agency) 10-year costs from the total 10-year benefits for each provision. The cost to industry associated with fee changes is offset by an equal gain to FMCSA due to increased revenues from fees. Table 3 presents the net benefits of the proposed rule. Net benefits are estimated to be −$23.0 million for the industry and $42.6 million for FMCSA. This results in total societal net benefits of the URS SNPRM of $19.6 million. The industry would experience a total increase in fees of −$58.6 million (including total fees paid and fees saved). This increase in fees to the

industry is offset by a total $58.6 million increase in fees received by FMCSA (including fees lost and fees received). FMCSA believes the fees and costs of the URS rule would not lead to a reduction in competitiveness.

Table 3—Net Benefits of URS Proposed Rule

[10-year present value]

URS rule provision

Net benefits

Industry

Agency

Net fees

Industry

Agency

Mandatory Electronic Filing

$1,425,292

$36,190,320

$0

$0

Eliminating Transfer/Name Change Requirements

0

0

1,854,890

−1,854,890

New Registrant Fee

0

0

−63,583,722

63,583,722

Insurance Filing

−676,723

0

−1,691,808

1,691,808

Process Agent Filing

−25,067,012

3,130,736

0

0

Cancellations and Reinstatements

−60,070

−135,158

4,808,126

−4,808,126

New MCSA-1 Application Form

1,354,631

3,391,089

0

0

Net Benefits

−23,023,883

42,576,988

−58,612,513

−58,612,513

Societal Net Benefits

19,553,105

0

Note:

Numbers may not add due to rounding.

B. Calculation of Costs and Benefits

This section summarizes the calculation of the costs and benefits for each URS provision. All costs and benefits were calculated over a 10-year period in nominal dollars, restated in real 2010 dollars, and discounted to present value using a rate of seven percent per Office of Management and Budget (OMB) guidelines. A full discussion of the data used, assumptions made, and calculations performed can be found in the regulatory evaluation contained in the public docket for the URS SNPRM.

1. Proposed New Registration Fees Under the URS

Currently, only non-exempt for-hire motor carriers, property brokers, and freight forwarders must pay a one-time registration fee to FMCSA of $300. However, under the URS, FMCSA proposes to require exempt for-hire, private motor carriers and other entities to pay a one-time registration fee as well. Section 4304 of SAFETEA-LU provides that the fee for new registrants shall as nearly as possible cover the costs of processing the registration but shall not exceed $300. The FMCSA determined that it would need to charge all new registrants the maximum allowable fee of $300 because the amount needed to cover the 10-year Agency costs associated with processing the registration filings based on projections of annual new registrants and Agency processing costs exceeds the $300 limit.

The FMCSA forecasted $360,122,795 in upgrading and operating costs of the registration system over the 10-year period from 2014 through 2023. This total includes the costs to operate the new motor carrier licensing and insurance system. The total also includes the cost for FMCSA to vet all new registrant for-hire carriers.

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The FMCSA has authority to vet all for-hire carriers, but is currently vetting only for-hire household goods and passenger carriers. During the vetting process, FMCSA reviews the application for completeness and determines if the applicant complies with the statutory and regulatory safety fitness requirements. During this review, FMCSA staff compares the applicant's data with existing carrier data in order to identify noncompliant carriers seeking authority under a different name. If an application is incomplete, FMCSA will contact the applicant to obtain missing information. If FMCSA determines that an applicant is an unsafe carrier or the application is materially incomplete, FMCSA will reject the application. The applicant is provided an opportunity to appeal the rejection and submit additional evidence to support its position that the application should be approved.

A portion of these licensing, insurance, and vetting costs will be defrayed by fee revenues other than new registrant registration fees. The FMCSA estimated fees collected for various insurance filings to be $6,943,479 over the 10-year period, and subtracted the 10-year present value of other fee revenues ($6,943,479) from the licensing, insurance, and vetting cost estimate to arrive at $353,179,316 in present value costs that the Agency must recover through the registration fee. The FMCSA divided this cost estimate by its projection of dollars collected per dollar of fee ($486,678)

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to arrive at a fee of $725. Per Section 4304 of SAFETEA-LU, FMCSA proposes to charge the maximum registration fee permitted by law, $300 per new registrant. Though a portion of the fees could cover some of the costs of FMCSA review of applications, the $300 fee will not be sufficient to cover all of these review costs.

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This number was calculated by multiplying the number of new registrants in each year by $1, discounting to find the present value, and summing over the 10-year period of the analysis.

The cost to industry associated with the change would be $63,583,722 in discounted dollars over the 10-year period (shown in Table 4). This cost to industry would be offset by an equal benefit to the Agency resulting from the revenues generated through the new registration fees.

Table 4—Proposed Change in FMCSA Registration Fee to New Registrants by Operation and Classification

Operation classification

Number

(2014-2023)

Fee

change

Total

(2010 $)

Total

(present value)

Exempt For-Hire Carriers

44,449

300

$13,334,700

$10,083,170

Private Carriers and other entities *

235,945

300

70,753,500

53,500,522

Total

280,294

84,088,200

63,583,722

* Cargo tank facilities and IEPs.

2. Designation of Process Agents

The FMCSA proposes amending 49 CFR part 366 to require private and exempt for-hire carriers to file process agent designation information with the Agency. Although, per SAFETEA-LU, carriers will not be assessed a fee when filing this information, there is still a cost to industry associated with engaging a process agent. The FMCSA estimated, based on price quotes available from process agents, that the cost to engage a process agent is currently about $35 per carrier. This cost was assumed to cover the minimal filing cost to the process agent. No processing cost was assumed for FMCSA for this electronic filing.

The FMCSA calculated $7,199,122 in discounted costs to industry associated with new-registrant private and exempt for-hire carrier process agent filings for 2014 through 2023.

The FMCSA assumed that no private and exempt for-hire motor carriers with recent activity have designated process agents. The FMCSA calculated one-time compliance costs for affected carriers with recent activity of $910,546,445 based on its estimate of 253,019 private and exempt for-hire carriers with recent activity in 2014.

Finally, FMCSA, based on discussions with the FMCSA Commercial Enforcement Division, estimated that 10 percent of private and exempt for-hire motor carriers with recent activity would change their process agents each year. The FMCSA calculated discounted costs to industry of $7,321,445 associated with re-filing activities over the 10-year analysis period. The FMCSA also calculated the Agency resource cost to process the carrier process agent changes.

Non-exempt for-hire motor carriers, brokers and freight forwarders currently must file designations of process agents via a “BOC-3” filing. Under the URS SNPRM, FMCSA proposes to require both private and exempt for-hire carriers to make the same filings.

This proposal would improve the ability of FMCSA safety investigators to locate small and medium-sized private and exempt for-hire motor carriers for enforcement action because investigators would be able to work with the newly-designated process agents to locate hard-to-find motor carriers. If the time saved were used by safety investigators to conduct more Compliance, Safety, Accountability (CSA) program interventions, the Agency believes this would lead to increased safety benefits. However, to present a conservative estimate of the benefits of the URS rule, we only estimate the benefit of time saved by the Agency due to a more efficient CSA program.

The FMCSA investigators sometimes spend 20 hours or more attempting to locate motor carriers for enforcement action, and in some cases are unable to track down the subject carrier. The FMCSA estimated that the availability of process agent information would save field staff an average of 15 hours in cases involving hard-to-locate carriers.

In 2002, States conducted 216 carrier searches per year on average. In 2003, FMCSA Division Offices reported between 10 and 100 cases per State in which field staff had significant trouble locating a motor carrier against whom they wished to take enforcement action, with most Division Offices reporting fewer than 25 such instances.

The FMCSA estimated that 15 enforcement cases per State per year (or roughly two thirds of the “difficult” cases) would benefit from dramatically reduced search costs because of the proposed requirement for private and exempt for-hire carriers to designate process agents.

The estimates of 15 saved hours per difficult case and 15 difficult cases per year per division result in 225 (15 × 15) annual staff hours saved per State, or 11,250 (225 × 50 States) annual staff hours saved in total. Assuming the Agency would allocate all of the annual saved staff hours to reducing labor costs, FMCSA estimated the value of this annual benefit by multiplying the total annual hours saved (11,250) by the Agency wage rate presented above in Section 2. For example, in 2014, the saved staff hours would benefit the Agency by reducing labor costs by $416,585 (11,250 × $37.03).

The FMCSA projected this annual benefit over the 10-year analysis period to arrive at a total benefit of $4.2 million in 2010 dollars. The FMCSA discounted this benefit to present value applying a seven percent discount rate consistent with the other portions of this analysis. The Agency arrived at a total benefit due to reduced labor cost (

i.e.,

increased efficiency) of $3.1 million over the 10-year analysis period.

In total, the regulatory changes requiring exempt for-hire and private carriers to file process agent designations would result in a cost of $25,067,012 to industry and a benefit to the Agency of $3,130,736, and thus a societal net benefit of −$21,936,276. The Agency invites comments on whether the process agent filing process can be made less costly. If there are less costly alternatives, please provide specific recommendations along with supporting data.

3. Financial Responsibility

Under the URS SNPRM, all new registrant exempt for-hire and private HM carriers' insurance representatives would need to file evidence of financial responsibility with FMCSA, and the carriers would be assessed a $10 filing fee.

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The FMCSA calculated 10-year fee costs of $460,331 to industry using its estimate of new registrant exempt for-hire and private HM carriers. This $460,331 cost to industry is offset by an equal benefit to the Agency resulting from revenues from the new fees.

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Section 4304 of SAFETEA-LU caps financial responsibility filing fees at $10. The filing fee is paid to FMCSA by the insurance company making the filing on behalf of the carrier and is passed on to the carrier by the insurance company.

The $10 fee is a transfer from the industry to the Agency, but the industry will incur resource costs associated with filing. The FMCSA assumed it would take insurance companies a minimal amount of time to file the required proof of insurance for each carrier they insure. Because these filings are handled electronically, FMCSA assigned a cost of only $4 per filing, assuming 10 minutes of time for a clerk. The FMCSA calculated the resource cost to new registrant exempt for-hire and private HM carriers by multiplying its projection of filing costs by its estimate of new registrants over the 10-year period to arrive at a total discounted resource cost to industry of $184,132.

The FMCSA would require existing exempt for-hire and private HM carriers to file proof of insurance. Using the Agency's 2008 Motor Carrier Management Information System (MCMIS) data, FMCSA estimated that in 2014 there will be 48,308 exempt for-hire carriers with recent activity and 25,019 private HM carriers with recent activity. The FMCSA calculated a discounted cost to industry of $693,890 associated with the fees. This cost to industry is offset by an equal benefit to the Agency due to the revenues from the fees.

The FMCSA calculated the resource cost to carriers with recent activity by multiplying its $4 filing cost estimate by the total exempt for-hire and private HM carriers with recent activity to arrive at a discounted resource cost of $733,270.

Currently, all for-hire motor carriers, property brokers, and HHG freight forwarders performing transfer, collection and delivery service must maintain current proof of financial responsibility on file with FMCSA to remain in “active” status. If an insurance company or financial institution notifies FMCSA of cancellation of coverage, carriers,

property brokers, and freight forwarders must file evidence of replacement coverage before the policy, bond or trust fund termination date. Under this proposed rule, exempt for-hire and private HM carriers would be subject to the same requirements. There is a $10 fee associated with filing proof of replacement financial responsibility.

Based on 2008 MCMIS data, roughly 8.56 percent of non-exempt for-hire carriers with recent activity filed proof of replacement liability insurance coverage with the Agency. The FMCSA assumed the same portion of the exempt for-hire and private HM carriers would file proof of replacement insurance following a policy cancellation. The FMCSA thus calculated the fees associated with evidence of financial responsibility replacement filings resulting from this proposed change by multiplying the $10 filing fee by 8.56 percent of the exempt for-hire and private HM carriers with recent activity each year. This calculation resulted in a discounted cost to industry over the 10-year analysis period of $498,207. This cost to industry would be offset by an equal benefit to the Agency in the form of new fees received.

The FMCSA calculated the resource cost to carriers with recent activity by multiplying its replacement filing cost estimate by 8.56 percent of the population of exempt for-hire and private HM carriers with recent activity. This resulted in a total discounted resource cost to operating carriers over the 10-year analysis period of $199,283. Again, no costs were attributed to the Agency for these filings.

Changes in requirements for financial responsibility filings resulted in a total 10-year cost to industry of $1,691,808. This cost to industry due to changes in requirements, however, is offset by an equal benefit to FMCSA for revenues from fees associated with the increased number of filings. Therefore, the societal costs due to changes in fees are zero. These proposed changes resulted in total 10-year resource costs to industry of $676,723.

4. Cancellation and Reinstatement of USDOT Numbers/Operating Authority

As discussed in the previous section, non-exempt for-hire motor carriers, property brokers, and certain HHG freight forwarders must maintain current proof of financial responsibility (liability insurance, bond, or trust fund information) with FMCSA to retain their commercial operating authority. If an insurance company or financial institution notifies FMCSA of cancellation of coverage, carriers, property brokers, and HHG freight forwarders must file evidence of replacement coverage before the policy, bond or trust fund termination date. The operating authorities of entities that do not file the required updates are revoked and these entities must apply for reinstatement of their operating authority by making the necessary filings. The FMCSA proposes to require exempt for-hire and private HM carriers and all freight forwarders providing transfer, collection and delivery service to file and maintain proof of liability insurance as a condition for obtaining and retaining an active USDOT Number. The FMCSA would deactivate the USDOT Number of noncompliant entities, who would be required to reactivate their USDOT registrations and resume operations subject to FMCSA jurisdiction.

Under the current system, carriers requesting reinstatement of operating authority must file a written request for reinstatement, pay an $80 fee (on-line by credit card, by phone with a credit card, or by mail with a check) and make the applicable financial responsibility filing. Once the payment is received and applicable filings are made, the FMCSA information system matches up the payment with the filings and automatically issues a reinstatement letter at 5 a.m. on the next business day. Under the proposed system, carriers requesting reinstatement would make the request electronically using Form MCSA-1, pay a $10 fee, and complete applicable filings showing that their insurance is back in effect. The Agency aspect of the reinstatement process would remain the same under the proposed system.

The FMCSA discusses these changes below in the following categories: (a) Reinstatement for non-exempt for-hire carriers, brokers and freight forwarders; and

(b) Reinstatement for exempt for-hire and private hazmat carriers.

Reinstatement, Non-Exempt For-Hire Carriers, Brokers and Freight Forwarders

Under the current system, non-exempt for-hire carriers, brokers and freight forwarders pay an $80 fee and file a written request for reinstatement. Under the proposed system, these carriers would request reinstatement using Form MCSA-1, pay a $10 fee and make the applicable insurance filing. The FMCSA assumed that the cost of this requirement is minimal, and is approximately equal to that of filing proof of insurance ($4). The Agency determined that it incurs slightly less than $10 per request to process reinstatement requests. The $10 reinstatement fee would be sufficient to defray Agency processing costs. The FMCSA calculated savings by non-exempt for-hire carriers, brokers and freight forwarders applying for reinstatement by multiplying the $70 reduction in fees for these carriers by the number of affected carriers to arrive at a 10-year discounted saving of $4,958,302. This industry benefit would be offset by an equal cost to the Agency due to the loss of revenues from the fees.

Reinstatement, Exempt For-Hire and Private Hazmat Carriers

Under the current system, exempt for-hire and private hazmat carriers do not file insurance-related reinstatements. Under the proposed system, these carriers would pay a $10 fee and file updated information. Using 2008 MCMIS data, FMCSA calculated that 2.58 percent of exempt for-hire and private hazmat carriers would let their insurance coverage lapse and later file reinstatement requests. The Agency determined that it incurs slightly less than $10 per request to process reinstatement requests. The $10 reinstatement fee would be sufficient to defray Agency processing costs. The FMCSA calculated fees associated with this activity by multiplying the $10 fee by the number of affected carriers to arrive at a 10-year discounted cost of $150,176. This industry cost would be offset by an equal benefit to the Agency due to the gain in revenues from the fees.

There is a resource cost to industry associated with making these reinstatement requests. As above, FMCSA assumed that the costs associated with completing the applicable filings would equal the costs associated with filing proof of insurance and process agent designations ($4). The FMCSA calculated discounted costs to industry of $60,070 associated with filing activities over the 10-year analysis period.

The FMCSA calculated discounted costs to the Agency of $135,158 associated with processing exempt for-hire and private hazmat carrier reinstatements over the 10-year analysis period.

Cumulative Reinstatement Costs and Benefits

Changes in fees for reinstatement of USDOT Numbers and/or commercial operating authority resulted in a total 10-year saving to industry of $4,808,126. This saving to industry, however, is offset by an equal cost to FMCSA in lost revenues from fees associated with reinstatements. The proposed changes

resulted in total 10-year resource costs of $60,070 to industry and $135,158 to FMCSA for a total resource cost to society of $195,229.

5. Transfers and Name Changes

Under the URS, the Agency would no longer require ownership/management/control certification when processing applicant requests for name, address, or form of business changes. Motor carriers will be required to report changes in management when completing their Form MCSA-1 biennial updates, and would retain their existing USDOT Number. No new or replacement USDOT Numbers would be issued. There were 196 requests for transfers of operating authority filed with FMCSA in 2008. Each of the carriers who requested a transfer of operating authority paid a $300 filing fee to FMCSA for this activity. Under the URS SNPRM, FMCSA would not accept or review transfer requests. Based on the 2008 data projected to 2014, FMCSA estimated discounted industry benefits of $509,168 over 10 years from the elimination of the transfer fee. This benefit to industry would be offset by an equal cost to the Agency resulting from the loss of revenues from the transfer request filing fee.

The FMCSA proposes to eliminate the $14 filing fee currently assessed to non-exempt for-hire motor carriers and others that change their business names. This action would result in a cost savings to industry and a matching cost to the Agency. In 2008, the Agency processed 11,141 name change requests. Based on the 2008 data, projected to 2014, FMCSA estimated 10-year discounted benefits to industry of $1,345,722 over the 10-year period. This $1,345,722 benefit to industry would be offset by an equal cost to the Agency resulting from the loss of name change filing fee revenues.

Elimination of transfer and name change filing fees resulted in a total 10-year cost savings to industry of $509,168. The cost savings to industry due to changes in filing fees, however, would be offset by an equal cost to the Agency resulting from reduced revenues from these filing fees. Therefore, the projected societal costs due to elimination of the fees are zero. These proposed changes resulted in no resource costs to either industry or FMCSA. The total reduction in fees for transfers and name changes is the sum of $509,168 and $1,345,722, or $1,854,890; this sum is a gain to industry and an equal loss to FMCSA.

6. The New Application Form—MCSA-1

The new Form MCSA-1 would replace existing FMCSA registration forms. There would be a time cost savings for those who presently file multiple application forms. New registrant non-exempt for-hire motor carriers currently file an OP-1 series form and the MCS-150 form with FMCSA. Property brokers and freight forwarders file an OP-1 series form only. All other carriers file forms in the MCS-150 series.

The FMCSA estimated an average completion time of just over 20 minutes each

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for the MCS-150 series forms and 2 hours for the OP-1 forms. The FMCSA determined that 56.45 percent of new registrants file OP-1 series forms, and 92.45 percent of new registrants file MCS-150 forms. Based on these percentages, FMCSA calculated the current average new registrant filing completion time as just under 1 hour and 26 minutes.

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The MCS-150 form has been estimated to require 20 minutes, and the MCS-150B form a slightly longer 26 minutes. Because only about 2 percent of carriers file the MCS-150B, the average is very close to 20 minutes. There is also an MCS-150C form, but it is much less frequently used.

The FMCSA proposes to require all new registrants except a Mexico-domiciled motor carrier requesting to conduct long-haul operations within the United States to file only Form MCSA-1. Based on field testing, FMCSA estimated that it would take those new registrants who would have used the OP-1 form 2 hours and 10 minutes to complete the new form. The FMCSA assumes that the time required for entities who would have used only the MCS-150 or 150B would not change if they used the MCSA-1 form instead. Multiplying 2 hours and 10 minutes by 56.45 percent (the percent of new registrants that file OP-1 series forms), and adding just over 20 minutes times the difference between 92.45 percent (the percent of new registrants that file MCS-150 forms) and 56.45 percent yields just over 1 hour and 20 minutes. Thus, FMCSA estimated a weighted average time savings of almost 6 minutes for each new registrant (that is, just under 1 hour and 26 minutes minus just over 1 hour and 20 minutes).

Using its adjusted average hourly wage estimate for drivers

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and its projection of new registrants, FMCSA estimated a 10-year discounted resource cost savings to industry of $1,354,631.

16

Note:

This activity may be performed by someone other than a driver. However, FMCSA assumed the person performing the activity would earn a wage similar to that of a driver and used the driver wage rate as the best indicator of cost for this activity.

The FMCSA also calculated Agency time saved associated with processing the new MCSA-1 form. Based on the Agency's estimate that, due to reductions in data entry, it would save 20 minutes of processing time from not using the OP-1 series form, and its determination that 56.45 percent of new registrants file the form, FMCSA estimated an 11-minute time savings per applicant. The FMCSA multiplied the adjusted average hourly wage estimate for the Agency by the time saved processing the new MCSA-1 form and the number of annual new registrants to obtain a 10-year discounted resource cost savings of $3,391,089.

The proposed changes would result in total 10-year resource cost savings to industry of $1,354,621 and resource cost savings to FMCSA of $3,391,089. The sum of the resource cost savings to industry and FMCSA equals $4,745,720, which is the total benefit to society.

7. Mandatory Electronic Filing of the MCSA-1

By requiring electronic submissions, FMCSA expects to reduce processing costs. Mandating electronic filing would also offer a benefit to most carriers through a reduction of the time required for them to receive registration and/or operating authority.

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Electronic submissions have the additional benefit of reducing erroneous data through automated data quality checks and increasing the transparency of the data included in the URS. The Agency believes that the cost savings resulting from reduced labor time and paperwork, and the benefits associated with reducing erroneous data and improving data transparency, would be difficult to achieve without mandating electronic filing. This change, however, could impose a burden on entities that do not have the means to file electronically or that do not wish to file electronically.

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Carriers subject to vetting might experience a more prolonged registration process.

To assess this potential burden, and to determine what alternatives would be available to small entities, FMCSA conducted a detailed cost/benefit analysis, “Report on Benefits and Costs of Mandatory Electronic Filing for FMCSA's Unified Registration System”, which is included as Appendix A to the regulatory evaluation. The Agency calculated costs and benefits associated with electronic filing by using estimates of the amount of time required to file the form and the number of expected filers. The present value of the benefits resulting from mandatory electronic

filing is $36,190,320 in benefits to FMCSA and $1,964,186 in benefits to industry. The industry also experiences a resource cost of $538,894. Thus, the net present value of the benefits associated with requiring mandatory electronic filing less the costs results in a total net benefit to society of $37,615,613 over a 10-year period.

The Agency realizes that a mandatory electronic filing requirement may involve a change of business practices for a small number of regulated entities under its jurisdiction; and with respect to these entities, we invite comments about the following questions:

(1) What would be the impact (benefits or hardships) on applicants of a mandatory electronic filing requirement?

(2) Would these impacts be different 4 years after the publication date of this notice? If so, how?

(3) If the impacts are expected to be adverse, how can they be mitigated?

(4) Should FMCSA provide a phase-in period for complying with the mandatory electronic filing requirement? If yes, please recommend appropriate phase-in criteria and time periods, stated in terms relative to the publication date of the final rule.

(5) If you believe electronic filing would be burdensome, would the benefits of obtaining operating authority more quickly offset any potential costs associated with electronic filing?

9. Total Net Benefits From the URS SNPRM

The FMCSA calculated the net benefits of the proposed rule by subtracting the total 10-year cost from the total 10-year benefits for each provision. Table 5 presents the net benefits of the proposed rule for each provision presented above. The cost to industry associated with fee changes is offset by an equal gain to FMCSA due to increased revenues from fees. Therefore, the impact to society from the change in fees is zero. Net benefits are estimated to be −$23.0 million for the industry and $42.6 million for FMCSA. This results in total societal net benefits of the URS SNPRM of $19.6 million. The industry would experience a total increase in fees of −$58.6 million (including total fees paid and fees saved). This increase in fees to the industry is offset by a total $58.6 million increase in fees received by FMCSA (including fees lost and fees received).

Table 5—Net Benefits of URS Proposed Rule

[10-year present value]

URS rule provision

Net benefits

Industry

Agency

Net fees

Industry

Agency

Mandatory Electronic Filing

$1,425,292

$36,190,320

$0

$0

Eliminating Transfer/Name Change Requirements

0

0

1,854,890

1,854,890

New Registrant Fee

0

0

−63,583,722

63,583,722

Insurance Filing

−676,723

0

−1,691,808

1,691,808

Process Agent Filing

−25,067,012

3,130,736

0

0

Cancellations and Reinstatements

−60,070

−135,158

4,808,126

4,808,126

New MCSA-1 Application Form

1,354,631

3,391,089

0

0

Net Benefits

−23,023,883

42,576,988

−58,612,513

58,612,513

Societal Net Benefits

19,553,105

0

Note:

Numbers may not add due to rounding.

V. Appendix to the Preamble—Proposed Form MCSA-1 and Instructions

BILLING CODE 4910-EX-P

EP26OC11.015

EP26OC11.016

EP26OC11.017

EP26OC11.018

EP26OC11.019

EP26OC11.020

EP26OC11.021

EP26OC11.022

EP26OC11.023

EP26OC11.024

EP26OC11.025

EP26OC11.026

EP26OC11.027

EP26OC11.028

EP26OC11.029

EP26OC11.030

EP26OC11.031

EP26OC11.032

EP26OC11.033

EP26OC11.034

EP26OC11.035

EP26OC11.036

EP26OC11.037

EP26OC11.038

EP26OC11.039

EP26OC11.040

EP26OC11.041

EP26OC11.042

EP26OC11.043

EP26OC11.044

EP26OC11.045

EP26OC11.046

EP26OC11.047

EP26OC11.048

EP26OC11.049

EP26OC11.050

EP26OC11.051

EP26OC11.052

EP26OC11.053

EP26OC11.054

EP26OC11.055

EP26OC11.056

EP26OC11.057

EP26OC11.058

EP26OC11.059

EP26OC11.060

EP26OC11.061

EP26OC11.062

EP26OC11.063

EP26OC11.064

BILLING CODE 4910-EX-C

VI. Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures

The FMCSA has preliminarily determined that this proposed rule is a significant regulatory action within the meaning of Executive Order 12866, and is significant within the meaning of Department of Transportation regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979) because it is expected to generate significant public interest. However, it is anticipated that the economic impact of the revisions in this SNPRM would not exceed the annual $100 million threshold for economic significance. The Office of Management and Budget (OMB) has reviewed this proposed rule.

Regulatory Flexibility Act

The Regulatory Flexibility Act [Pub. L. 96-354, 5 U.S.C. 601-612] requires Federal agencies to take small businesses' concerns into account when developing, writing, publicizing, promulgating, and enforcing regulations. To achieve this, the Act requires that agencies detail how they have met these concerns through a Regulatory Flexibility Analysis (RFA). An initial RFA, which accompanies an NPRM, must include six elements. The Agency has listed these elements below and addressed each element with regard to FMCSA's SNPRM.

(1) A description of the reasons why action by the Agency is being considered.

The FMCSA is taking this action in response to section 103 of the ICC Termination Act of 1995 (ICCTA), as amended by section 4304 of SAFETEA-LU, which, among other things, requires the Secretary of Transportation (Secretary) to propose regulations to replace four current identification and registration systems with a single, online, Federal system. The purpose of this proposal is to consolidate and simplify current Federal registration processes and to increase public accessibility to data about interstate motor carriers, property brokers, freight forwarders, and other entities. Pursuant to the statutory mandate, FMCSA proposes to charge registration and administrative fees that would enable FMCSA to recoup the costs associated with processing registration applications and administrative filings and maintaining this system.

(2) A succinct statement of the objectives of, and legal basis for, the proposed rule.

The ICCTA created a new 49 U.S.C. 13908 directing “[t]he Secretary, in cooperation with the States, and after notice and opportunity for public comment,” * * * to “issue regulations to replace the current Department of Transportation identification number system, the single State registration system under section 14504, the registration system contained in this chapter, and the financial responsibility information system under section 13906 with a single, on-line, Federal system.”

Title 49 U.S.C. 13908(d) authorizes the Secretary to establish, under sections 9701 of title 31, United States Code, a fee system for the Unified Carrier Registration System according to certain guidelines providing for fee limits for registration, filing evidence of financial responsibility and filing information regarding agents for service of process.

These directives specifically require FMCSA to undertake some of the actions in this proposal. The remaining related changes facilitate the smooth operation of a unified Federal on-line registration system.

(3) A description and, where feasible, an estimate of the number of small entities to which the proposed rule would apply.

The FMCSA would subject all motor carriers engaging in interstate commerce (private, exempt and non-exempt for-hire) to this proposal.

Not all carriers are required to report their revenue to the Agency; but all carriers are required to provide the Agency with the number of power units they operate when they apply for operating authority and to update this figure biennially. Because FMCSA does not have direct revenue figures, power units serve as a proxy to determine the carrier size that would qualify as a small business given the SBA's revenue threshold. In order to produce this estimate, it is necessary to determine the average revenue generated by a power unit. With regards to truck power units, the Agency determined in the 2003 Hours of Service Rulemaking RIA

18

that a power unit produces about $172,000 in revenue annually (adjusted for inflation).

19

The Small Business Administration (SBA) defines a small entity in the truck transportation sub-sector (North American Industry Classification System [NAICS] 484) as an entity with annual revenue of less than $25.5 million [13 CFR 121.201].

20

This equates to 148 power units ($25,500,000/$172,000). Thus, FMCSA considers motor carriers with 148 power units or less to be a small business for SBA purposes.

18

Regulatory Analysis for: Hours of Service of Drivers; Driver Rest and Sleep for Safe Operations, Final Rule-Federal Motor Carrier Safety Administration. 68 FR 22456-Published 4/23/2003.

19

The 2000 TTS Blue Book of Trucking Companies, number adjusted to 2008 dollars for inflation.

20

U.S. Small Business Administration Table of Small Business Size Standards matched to North American Industry Classification (NAIC) System codes, effective August 22, 2008. See NAIC subsector 484, Truck Transportation.

With regards to bus power units, the Agency conducted a preliminary analysis to estimate the average number of power units (PUs) for a small entity earning $7 million annually, based on an assumption that a passenger carrying CMV generates annual revenues of $150,000. This estimate compares reasonably to the estimated average annual revenue per power unit for the trucking industry ($172,000). A lower estimate was used because buses generally do not accumulate as many vehicle miles traveled (VMT) per power units as trucks,

21

and it is assumed therefore that they would generate less revenue on average. The analysis concluded that passenger carriers with 47 PUs or fewer ($7,000,000 divided by $150,000/PU = 46.7 PU) would be considered small entities. The Agency then looked at the number and percentage of passenger carriers registered with FMCSA that would fall under that definition (of having 47 PUs or less). The results show that 28,838

22

(or 99%) of all active registered passenger carriers have 47 PUs or less. Therefore, the overwhelming majority of passenger carriers would be considered small entities.

21

FMCSA Large Truck and Bus Crash Facts 2008, Tables 1 and 20;

http://fmcsa.dot.gov/facts-research/LTBCF2008/Index-2008Large TruckandBusCrashFacts.aspx

22

FMCSA MCMIS snapshot on 2/19/2010.

FMCSA believes that this 150 power unit figure would be applicable to private carriers as well: Because the sizes of the fleets they are able to sustain are indicative of the overall size of their operations, large CMV fleets can generally only be managed by large firms. There is a risk, however, of overstating the number of small businesses because the operations of some large non-truck or bus firms may require only a small number of CMVs.

The FMCSA believes the proposed rule would affect roughly 600,000 small carriers with recent activity annually on an ongoing basis.

23

The Agency expects a larger number of affected entities in the first year of the analysis period when exempt for-hire carriers with

recent activity and private carriers with recent activity make administrative filings for the first time. The estimated first-year cos

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