Exemption of Notice Filing Requirements for Agricultural Cooperative Associations Which Conduct Compensated Transportation Operations for Nonmembers

DEPARTMENT OF TRANSPORTATION

49 CFR Part 372

[FHWA Docket No. MC-96-38]

RIN 2125-AE03

Exemption of Notice Filing Requirements for Agricultural

Cooperative Associations Which Conduct Compensated Transportation

Operations for Nonmembers

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

-----------------------------------------------------------------------

SUMMARY: This document proposes to remove the regulation that specifies

the notice filing requirements for agricultural cooperative

associations which conduct compensated transportation operations for

nonmembers. These operations are exempt from regulation if certain

statutory limitations on their scope are observed. Section 103 of the

ICC Termination Act of 1995 removed the requirement that a notice be

filed before initiation of operations under the exemption. Removal of

the regulation would reflect this statutory change and is consistent

with the overall intent of the ICC Termination Act of 1995 to eliminate

unnecessary regulation.

DATES: Written comments must be submitted on or before December 20,

1996.

ADDRESSES: Submit signed, written comments to FHWA Docket No. MC-96-38,

FHWA, Office of the Chief Counsel, HCC-10, Room 4232, 400 Seventh

Street, SW., Washington, DC 20590. All comments received will be

available for examination at the above address from 8:30 a.m. to 3:30

p.m., e.t., Monday through Friday, except Federal holidays. Those

desiring notification of receipt of comments must include a self-

addressed, stamped postcard/envelope.

FOR FURTHER INFORMATION CONTACT: Mr. Thomas T. Vining or Ms. Patricia

A. Burke, Office of Motor Carrier Information Analysis, HIA-30, (202)

927-5520, or Ms. Grace Reidy, Office of the Chief Counsel, (202) 366-

0834, Federal Highway Administration, 400 Seventh Street, SW.,

Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,

e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: The former Interstate Commerce Act contained

an exemption from ICC regulation at former 49 U.S.C. 10526(a)(5)(now 49

U.S.C. 13506(a)(5)) for transportation provided by an agricultural

cooperative association for nonmembers. To qualify for the exemption,

the transportation services for nonmembers were required to be

incidental to the cooperative's primary transportation operations,

could not exceed annually 25 percent of the cooperative's total

transportation between any two involved points, and, as a whole, could

not exceed the transportation provided for the cooperative association

and its members. The cooperative was also required to file a notice

with the ICC of its intent to provide transportation for nonmembers.

The ICC Termination Act of 1995 (ICCTA), Public Law 104-88, 109

Stat. 803, reenacted the substantive exemption for nonmember

transportation services by agricultural cooperatives, but removed the

notice filing requirement. 49 U.S.C. 13506(a)(5). Although the ICCTA

does not prohibit imposition of a notice requirement by the FHWA, which

has assumed responsibility for this regulation pursuant to the ICCTA,

the continuing need for any notice is doubtful.

The Secretary is granted authority at 49 U.S.C. 13508 to require

agricultural cooperatives to maintain records of transportation

provided for members and nonmembers. Section 13508 makes these records

subject to inspection and imposes specific penalties for reporting and

recordkeeping violations. Regulations at 49 CFR 372.111 delineate the

scope of the required records. The information contained in these

records can be inspected by the FHWA if it ever appears that a

cooperative is performing transportation services for nonmembers which

exceed the scope of the exemption. Moreover, it is unlikely that a

cooperative would have any incentive to conduct unlawful operations.

Under the ICCTA, licensing requirements are now essentially limited to

compliance with safety and insurance standards. A cooperative could

easily obtain operating authority for legitimate operations.

In these circumstances, the notice requirement at 49 CFR 372.113 no

longer appears to serve any legitimate purpose. Removal of this

regulation, and the adoption of conforming amendments to 49 CFR

372.111, would eliminate unnecessary regulatory requirements. The FHWA

invites public comments on these preliminary conclusions.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable, but the FHWA may issue a final

rule at any time after the close of the comment period. In addition to

late comments, the FHWA will also continue to file in the docket

relevant information that becomes available after the comment closing

date, and interested persons should continue to examine the docket for

new material.

Executive Order 12866 (Regulatory Planning and Review and DOT

Regulatory Policies and Procedures

The FHWA has determined that this action is not a significant

regulatory action within the meaning of Executive Order 12866 or

significant within the meaning of Department of Transportation

regulatory policies and procedures. It is anticipated that the economic

impact of this rulemaking will be minimal; therefore, a full regulatory

evaluation is not required. The rulemaking merely proposes to eliminate

a notice filing requirement which applies to a small number of

transportation entities. Neither the

individual nor cumulative impact of this action will be significant.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354,

5 U.S.C. 601-612), the FHWA has evaluated the effects of this rule on

small entities. Based on the evaluation, the FHWA hereby certifies that

this action will not have a significant economic impact on a

substantial number of small entities. The filing requirement currently

only involves the preparation of a relatively simple notice by a

limited number of transportation entities. Its elimination, while

beneficial, will not have a significant economic impact.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient federalism implications to

warrant the preparation of a federalism assessment.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for purposes of the Paperwork Reduction Act of 1995, 44

U.S.C. 3501 et seq. On the contrary, it eliminates the requirement that

parties taking advantage of the exemption at 49 U.S.C. 13506(a)(5) file

Form OCP-102 (Office of Management and Budget #3120-0005, expired 11-

30-95). This action is thus consistent with the goals of the Paperwork

Reduction Act.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and has

determined that this action would not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulatory Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN number contained in the

heading of this document can be used to cross reference this action

with the Unified Agenda.

List of Subjects in 49 CFR Part 372

Agricultural commodities, Buses, Cooperatives, Highways and roads,

Motor Carriers, Reporting and recordkeeping requirements.

Issued on: October 8, 1996.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title

49, CFR, chapter III, Part 372 as set forth below:

PART 372--EXEMPTIONS, COMMERCIAL ZONES, AND TERMINAL AREAS

1. The authority citation for Part 372 is revised to read as

follows:

Authority: 49 U.S.C. 13504 and 13506; 49 CFR 1.48.

2. Section 372.111 is amended in paragraph (a) by removing the

words ``which is required to give notice to the Commission under

Sec. 1047.23'', and in paragraph (b) by removing the words ``and

required to give notice to this Commission under Sec. 1047.23''.

Sec. 372.113 [Removed and reserved]

3. Section 372.113 is removed and reserved.

[FR Doc. 96-26669 Filed 10-18-96; 8:45 am]

BILLING CODE 4910-22-P