Motor Carrier Safety Assistance Program, 44162-44187 [2019-17763]
Download as PDF
<![CDATA[
44162
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Parts 350, 355, and 388
[Docket No. FMCSA–2017–0370]
RIN 2126–AC02
Motor Carrier Safety Assistance
Program
Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: FMCSA proposes
amendments to the Agency’s financial
assistance programs resulting from the
Fixing America’s Surface Transportation
(FAST) Act, including amendments
based on the funding formula
recommendations derived from the
Motor Carrier Safety Assistance Program
(MCSAP) Formula Working Group
(working group). This proposal would
reorganize the Agency’s regulations to
create a standalone subpart for the High
Priority Program. It would also include
other programmatic changes to reduce
redundancies, require the use of 3-year
MCSAP commercial vehicle safety plans
(CVSPs), and align the financial
assistance programs with FMCSA’s
current enforcement and compliance
programs.
Comments on this notice must be
received on or before October 7, 2019.
ADDRESSES: You may submit comments
identified by Docket Number FMCSA–
2017–0370 using any of the following
methods:
• Federal eRulemaking Portal: https://
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,
Washington, DC 20590, between 9 a.m.
and 5 p.m. ET, Monday through Friday,
except Federal holidays.
• Fax: (202) 493–2251.
To avoid duplication, please use only
one of these four methods. See the
‘‘Public Participation and Request for
Comments’’ portion of the
SUPPLEMENTARY INFORMATION section for
instructions on submitting comments.
FOR FURTHER INFORMATION CONTACT: Jack
Kostelnik, State Programs Division,
Federal Motor Carrier Safety
Administration, 1200 New Jersey
DATES:
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
Avenue SE, Washington, DC 20590–
0001, by telephone at (202) 366–5721 or
by email at jack.kostelnik@dot.gov. If
you have questions on viewing or
submitting material to the docket,
contact Docket Services, telephone (202)
366–9826.
SUPPLEMENTARY INFORMATION: This
notice of proposed rulemaking (NPRM)
is organized as follows:
I. Public Participation and Request for
Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Waiver of Advance Notice of Proposed
Rulemaking
II. Executive Summary
A. Purpose and Summary of the Regulatory
Action
B. Summary of Major Provisions
C. Costs and Benefits
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
V. Background
A. History of MCSAP
B. FAST Act
C. FAST Act Omnibus Rule
D. MCSAP Formula Working Group
E. Voluntary Implementation of CVSPs
VI. Discussion of the Proposed Rulemaking
A. Separation of MCSAP and the High
Priority Program Provisions
B. Proposed MCSAP Allocation Formula
C. CVSP
D. Performance and Registration
Information Systems Management
(PRISM)
E. Authorization and Appropriations
Related Changes
F. Relocation of 49 CFR Part 355—
Compatibility of State Laws and
Regulations Affecting Interstate Motor
Carrier Operations
G. 49 CFR Part 385 Subpart E—Hazardous
Material Safety Permits
H. Removal of 49 CFR Part 388—
Cooperative Agreements With States
I. Other Proposed Changes
J. Request for Comments
VII. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and
DOT Regulatory Policies and Procedures
B. E.O. 13771 (Reducing Regulation and
Controlling Regulatory Costs)
C. Regulatory Flexibility Act
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy
L. E.O. 12372 (Intergovernmental Review)
M. E.O. 13211 (Energy Supply,
Distribution, or Use)
N. E.O. 13783 (Promoting Energy
Independence and Economic Growth)
O. E.O. 13175 (Indian Tribal Governments)
PO 00000
Frm 00002
Fmt 4701
Sfmt 4702
P. National Technology Transfer and
Advancement Act (Technical Standards)
Q. National Environmental Policy Act of
1969
I. Public Participation and Request for
Comments
A. Submitting Comments
If you submit a comment, please
include the docket number for this
NPRM (Docket No. FMCSA–2017–
0370), indicate the specific section of
this document to which each comment
applies, and provide a reason for each
suggestion or recommendation. You
may submit your comments and
material online or by fax, mail, or hand
delivery, but please use only one of
these means. FMCSA recommends that
you include your name and a mailing
address, an email address, or a
telephone number in the body of your
document so that FMCSA can contact
you if there are questions regarding your
submission.
To submit your comment online, go to
https://www.regulations.gov, put the
docket number, FMCSA–2017–0370, in
the keyword box, and click ‘‘Search.’’
When the new screen appears, click on
the ‘‘Comment Now!’’ button and type
your comment into the text box on the
following screen. Choose whether you
are submitting your comment as an
individual or on behalf of a third party
and then submit.
If you submit your comments by mail
or hand delivery, submit them in an
unbound format, no larger than 81⁄2 by
11 inches, suitable for copying and
electronic filing. If you submit
comments by mail and would like to
know that they reached the facility,
please enclose a stamped, self-addressed
postcard or envelope.
FMCSA will consider all comments
and material received during the
comment period and may change this
proposed rule based on your comments.
FMCSA may issue a final rule at any
time after the close of the comment
period.
Confidential Business Information
Confidential Business Information
(CBI) is commercial or financial
information that is customarily not
made available to the general public by
the submitter. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is
eligible for protection from public
disclosure. If you have CBI that is
relevant or responsive to this NPRM, it
is important that you clearly designate
the submitted comments as CBI.
Accordingly, please mark each page of
your submission as ‘‘confidential’’ or
‘‘CBI.’’ Submissions designated as CBI
and meeting the definition noted above
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
will not be placed in the public docket
of this NPRM. Submissions containing
CBI should be sent to Brian Dahlin,
Chief, Regulatory Evaluation Division,
Federal Motor Carrier Safety
Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590–
0001. Any commentary that FMCSA
receives that is not specifically
designated as CBI will be placed in the
public docket for this rulemaking.
B. Viewing Comments and Documents
To view comments, as well as any
documents mentioned in this preamble
as being available in the docket, go to
https://www.regulations.gov. Insert the
docket number, FMCSA–2017–0370, in
the keyword box, and click ‘‘Search.’’
Next, click the ‘‘Open Docket Folder’’
button and choose the document to
review. If you do not have access to the
internet, you may view the docket
online by visiting the Docket
Management Facility in Room W12–140
on the ground floor of the DOT West
Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m.
and 5 p.m. ET, Monday through Friday,
except Federal holidays.
C. Privacy Act
In accordance with 5 U.S.C. 553(c),
DOT solicits comments from the public
to better inform its rulemaking process.
DOT posts these comments, without
edit, including any personal information
the commenter provides, to
www.regulations.gov, as described in
the system of records notice (DOT/ALL
14–FDMS), which can be reviewed at
www.transportation.gov/privacy.
D. Waiver of Advance Notice of
Proposed Rulemaking
Under section 5202 of the FAST Act,
Public Law 114–94, 129 Stat. 1312,
1534–5 (2015), if a regulatory proposal
is likely to lead to the promulgation of
a major rule,1 FMCSA is required to
publish an advance notice of proposed
rulemaking (ANPRM), unless the
Agency finds good cause that an
ANPRM is impracticable, unnecessary,
or contrary to the public interest (49
U.S.C. 31136(g)). The Agency does not
anticipate that this rulemaking would
1 A ‘‘major rule’’ means any rule that the
Administrator of the Office of Information and
Regulatory Affairs at the Office of Management and
Budget (OMB) finds has resulted in or is likely to
result in (a) an annual effect on the economy of
$100 million or more; (b) a major increase in costs
or prices for consumers, individual industries,
Federal agencies, State agencies, local government
agencies, or geographic regions; or (c) significant
adverse effects on competition, employment,
investment, productivity, innovation, or on the
ability of United States-based enterprises to
compete with foreign-based enterprises in domestic
and export markets (5 U.S.C. 804(2)).
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
result in a major rule. Thus, publication
of an ANPRM is not necessary.
However, a key component of this
rulemaking involves a new allocation
formula governing the distribution of
MCSAP funds. This NPRM reflects the
allocations derived from the
recommendations of the working group
that was appointed by the Secretary of
Transportation (Secretary) in
accordance with section 5106 of the
FAST Act.
While this working group was not a
negotiated rulemaking committee,
which is an alternative to an ANPRM
under the statute, its recommendations
were developed through a collaborative
effort by relevant stakeholders.
II. Executive Summary
A. Purpose and Summary of the
Regulatory Action
The purpose of this regulatory action
is to amend and reorganize 49 CFR part
350, including adding relevant sections
that are currently located in part 355.
Certain regulations are no longer
necessary or are redundant. Moreover,
the FAST Act required FMCSA to
implement a multi-year CVSP with
annual updates for States applying for
MCSAP funds and to provide a new
MCSAP allocation formula. This
proposal would provide a new MCSAP
allocation formula, require States to
adopt 3-year CVSPs, and reorganize the
Agency’s regulations to create a
standalone subpart for the High Priority
Program. FMCSA’s primary legal
authority for this rulemaking is derived
from Title V, Subtitle A of the FAST
Act, Public Law 114–94, 129 Stat. 1312,
1514–1534 (2015).
B. Summary of Major Provisions
The rule proposes a new MCSAP
allocation formula. The FAST Act
required the Secretary to assemble a
working group to recommend a new
MCSAP allocation formula. The Agency
fully considered and is proposing to
fully adopt the recommendations of the
working group.
The new MCSAP allocation formula
would include three components: State,
Border, and Territory. Each component
would be assigned a percentage of
MCSAP funds. Funds would be
allocated under the State Component
using five equally-weighted factors and
then applying minimum and maximum
caps to the allocated funding. The
Border Component would allocate
funding based on the number of United
States ports of entry and the number of
commercial motor vehicle (CMV)
crossings at those ports of entry, subject
to minimum and maximum funding
PO 00000
Frm 00003
Fmt 4701
Sfmt 4702
44163
levels. This Border Component accounts
for differences in the number of
crossings per port of entry at the
Northern border compared to the
Southern border of the United States.
Finally, the Territory Component would
ensure that each Territory, except for
Puerto Rico (which is allocated funding
under the State Component), receives a
minimum funding amount of $350,000.
Any funds not allocated under the
Border or Territory Components would
be added to the State Component for
allocation. The proposed formula would
promote stability in funding and protect
States from experiencing significant and
unpredicted changes by including a
hold-harmless provision and a funding
cap.
This proposed rule would require
States to use CVSPs in accordance with
the FAST Act. The rule would provide
direction to States on how and when to
submit CVSPs, which would be on 3year cycles. In the first year of the CVSP,
States would submit quantitative
performance objectives, analysis of past
performance, and other documents
traditionally provided in an annual
CVSP, as well as a budget for the initial
year. In the second and third years of
the CVSP, States would submit an
annual update that includes changes to
the CVSP (including updates to
performance objectives and adjustments
to activities), a budget for the applicable
fiscal year, and other documents
required on an annual basis.
FMCSA proposes to clarify a State’s
obligation to cooperate in the
enforcement of hazardous materials
safety permits for interstate and
intrastate carriers, as required under
subpart E of 49 CFR part 385, to
transport certain hazardous materials.
The rule also proposes to revise and
reorganize part 350. Currently, the High
Priority Program and MCSAP
regulations are intertwined in part 350,
but some regulations do not apply to
both programs. To provide clarity for
the eligible recipients, this NPRM
separates the two programs into
different subparts in part 350. In
addition, relevant sections of part 355
would be added to part 350. These
proposed changes address regulatory
compatibility and would reduce
redundancy and make part 350 more
clear and concise.
Finally, FMCSA proposes to remove
part 388, titled ‘‘Cooperative
Agreements with States,’’ because
FMCSA does not rely on part 388
provisions.
C. Costs and Benefits
This rule proposes a new MCSAP
allocation formula to replace the current
E:\FR\FM\22AUP3.SGM
22AUP3
44164
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
formula that has been in use for more
than a decade with little modification.
The proposed MCSAP allocation
formula would make several
improvements over the current formula.
The proposed formula would result in a
reallocation of fiscal year (FY) 2020
grant funding that would be considered
a transfer payment, in that it would not
change the total amount of funds
distributed. In accordance with OMB
guidance on conducting regulatory
analysis (as discussed in OMB Circular
A–4, ‘‘Regulatory Analysis’’), transfer
payments within the U.S. are not
included in the estimates of the costs
and benefits of rulemakings. Thus,
FMCSA does not include transfers
resulting from the proposed changes to
the MCSAP allocation formula in its
estimate of the rule’s costs or benefits.
The proposed rule would require
States to use CVSPs in accordance with
the FAST Act. The rule would provide
direction to States on how and when to
submit CVSPs, which would be on 3year cycles. Under the current
regulations, States must submit lengthy
CVSP applications annually to receive
MCSAP funding, unless they volunteer
to submit 3-year CVSPs. The proposed
rule would require States to submit
robust 3-year CVSP applications for the
first year, with annual updates for the
second and third years. FMCSA expects
that 3-year CVSPs will be less
burdensome and time consuming for
States than submitting lengthy CVSP
applications annually, which will result
in lower program administrative costs.
All 55 States 2 have transitioned
voluntarily to 3-year CVSPs, and thus,
there is no impact from this proposed
change.
If a continuing resolution in FY 2020
were to occur, FMCSA would utilize the
same process it has employed during
recent budget cycles. State lead agencies
would complete the CVSP utilizing an
estimated annual award total based on
the statutorily authorized funding level.
Should the final appropriation be less
than the authorized amount, FMCSA
would publish a revised funding table
and provide MCSAP recipients the
opportunity to modify their proposed
activities and budget accordingly.
FMCSA will also engage in
continuous outreach with its MCSAP
recipients regarding the implementation
of the proposed formula and related
impacts. The Agency anticipates
including this as a key topic of
2 Unless otherwise provided in this preamble, we
use the term ‘‘State’’ as including the District of
Columbia and the Territories. FMCSA estimated
that there are 55 respondents consisting of the 50
States minus Oregon, plus the District of Columbia
and the 5 Territories.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
discussion during its annual meeting of
MCSAP grantees, providing ongoing
updates through its quarterly webinars
with grant recipients, and developing
printed materials relating to the new
formula implementation.
FMCSA, through its Division Offices,
will work directly with individual
MCSAP partners to ensure that
stakeholders are informed and that
questions are addressed quickly. In
addition, FMCSA has already developed
and distributed via its website a series
of frequently asked questions (FAQs)
and an executive summary of the
working group’s report to facilitate this
process.
Due to the nature of grants as transfer
payments (which are not considered
costs or benefits), FMCSA anticipates
that the proposed changes would not
result in any societal costs or benefits.
III. Abbreviations and Acronyms
ANPRM Advance notice of proposed
rulemaking
BEG Border Enforcement Grant
CBI Confidential Business Information
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial motor vehicle
CVSP Commercial vehicle safety plan
DOT Department of Transportation
eCVSP Electronic commercial vehicle safety
plan
E.O. Executive Order
FAST Act Fixing America’s Surface
Transportation Act
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety
Administration
FMCSRs Federal Motor Carrier Safety
Regulations
FR Federal Register
FTE Full-time employees
FY Fiscal year
HMRs Federal Hazardous Materials
Regulations
MCSAP Motor Carrier Safety Assistance
Program
MOE Maintenance of effort
NOFO Notice of Funding Opportunity
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
PRISM Performance and Registration
Information Systems Management
RFA Regulatory Flexibility Act
§ Section
Secretary Secretary of Transportation
SBREFA Small Business Regulatory
Enforcement Fairness Act of 1996 working
group MCSAP Formula Working Group
U.S.C. United States Code
VMT Vehicle miles traveled
IV. Legal Basis for the Rulemaking
This rule is based primarily on Title
V, Subtitle A of the FAST Act, Public
Law 114–94, 129 Stat. 1312, 1514–1534
(2015), which consolidated several of
FMCSA’s financial assistance programs
and authorized program funding levels
through fiscal year (FY) 2020. Key
PO 00000
Frm 00004
Fmt 4701
Sfmt 4702
provisions, effective FY 2017, include
section 5101, which amended 49 U.S.C.
31102, consolidating the former New
Entrant, Performance and Registration
Information Systems Management
(PRISM), Safety Data Improvement
Program, and Border Enforcement grant
programs into the revised MCSAP
formula grant. In addition, it established
the High Priority Program as a separate
discretionary financial assistance
program for qualifying entities and
projects relating to motor carrier safety
and Innovative Technology
Deployment. Section 5101 also
amended 49 U.S.C. 31104, which
prescribes, among other things,
authorized funding levels through FY
2020, the minimum Federal funding
share applicable to these (and other)
FMCSA financial assistance programs,
and the periods of time in which
awarded funds may be used.
Section 5106 of the FAST Act (note
following 49 U.S.C. 31102) required the
Secretary to appoint a working group,
consisting of prescribed stakeholder
interests, to develop and recommend to
the Secretary a new MCSAP allocation
formula reflecting specified factors for
the award of MCSAP funds. Following
receipt of the working group’s
recommendations, the Secretary is
required to issue an NPRM. The
working group submitted its report on
April 7, 2017, and an addendum to the
report on January 8, 2019. Section 5107
of the FAST Act (note following 49
U.S.C. 31102) addresses the
maintenance of effort calculations for
FY 2017 and subsequent fiscal years
until the new MCSAP allocation
formula is in place.
FMCSA has authority under Federal
hazardous materials transportation law,
49 U.S.C. 5101–5128, to require States
to cooperate in the enforcement of
Federal hazardous materials safety
permit requirements as a condition to
qualify for MCSAP funds. The purpose
of the hazardous materials
transportation law is ‘‘to protect against
the risks to life, property, and the
environment that are inherent in the
transportation of hazardous material in
intrastate, interstate, and foreign
commerce’’ (49 U.S.C. 5101). Section
5109(a) provides that a ‘‘motor carrier
may transport or cause to be transported
by motor vehicle in commerce
hazardous material only if the carrier
holds a safety permit’’ issued by
FMCSA. The Secretary has authority to
prescribe what hazardous materials
require a safety permit (49 U.S.C.
5109(b)). Exercising this authority, this
NPRM proposes to clarify that States are
required to cooperate in ensuring
carriers transporting certain hazardous
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
materials possess the required FMCSA
hazardous materials safety permit (49
U.S.C. 31102(c)(1)).
FMCSA is authorized to implement
these statutory provisions by delegation
from the Secretary in 49 CFR 1.87.
V. Background
A. History of MCSAP
The Surface Transportation
Assistance Act of 1982, Public Law 97–
424, 96 Stat. 2097, 2155 (1983),
authorized MCSAP. MCSAP is a Federal
financial assistance program that
provides formula grants to States (unless
otherwise stated, defined in this
proposed rule to include the Territories
and the District of Columbia) to reduce
the number and severity of injuries and
the number of fatalities resulting from
crashes involving CMVs and to promote
the safe transportation of passengers and
hazardous materials. MCSAP funds are
essential to maintaining FMCSA’s
national CMV safety enforcement
programs, and those of States. MCSAP
establishes the conditions to participate
in the program and promotes the
adoption and uniform enforcement of
State safety rules, regulations, and
standards that are compatible with the
Federal Motor Carrier Safety
Regulations (FMCSRs) and Federal
Hazardous Materials Regulations
(HMRs) for both interstate and intrastate
motor carriers and drivers.3
Before FY 2017, MCSAP consisted of
the Basic Program funds and Incentive
funds calculated using a formula, and
set-asides for the discretionary High
Priority and New Entrant grant
programs. Until a new MCSAP
allocation formula is implemented, the
Basic Program funds and Incentive
funds ensure that FMCSA and States
continue to work in partnership to
establish programs to improve motor
carrier, CMV, and driver safety to
support a safe and efficient
transportation system.
The Basic Program funds currently
distribute MCSAP funds proportionally
3 The program was subsequently modified by the
Intermodal Surface Transportation Efficiency Act of
1991, Public Law 102–240, 4002, 105 Stat. 1914,
2140 (1991); the ICC Termination Act of 1995,
Public Law 104–88, 104(a), 109 Stat. 803, 918
(1995); the Transportation Equity Act for the 21st
Century, Public Law 105–178, 4003(b), (c), 112 Stat.
107, 395 (1998); the Motor Carrier Safety
Improvement Act of 1999, Public Law 106–159,
207, 113 Stat. 1748, 1764 (1999); the Safe,
Accountable, Flexible, Efficient Transportation
Equity Act: A Legacy for Users, Public Law 109–
59, 4106, 4307(b), 119 Stat. 1144, 1717, 1774 (2005);
and the Moving Ahead for Progress in the 21st
Century Act, Public Law 112–141, 126 Stat. 405
(2012). The most recent modifications to MCSAP
were enacted as part of Title V, Subtitle A of the
FAST Act, Public Law 114–94, 129 Stat. 1312,
1514–1534 (2015).
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
to States using the following four,
equally-weighted factors:
(1) 1997 road miles (all highways) as
defined by the Federal Highway
Administration (FHWA);
(2) Vehicle miles traveled (VMT) as
defined by the FHWA;
(3) Population based on annual
census estimates issued by the U.S.
Census Bureau; and
(4) Special fuel consumption (net after
reciprocity adjustment) as defined by
the FHWA.
The Incentive funds are a portion of
MCSAP funds distributed to States, but
not to the Territories. A State’s share of
the Incentive funds is based on:
(1) Reduction of large truck-involved
fatal crashes;
(2) Reduction of large truck-involved
fatal crash rate or maintenance of a large
truck-involved fatal crash rate that is
among the lowest 10 percent among
MCSAP recipients;
(3) Uploads of CMV crash reports in
accordance with current FMCSA policy;
(4) Verification of commercial driver’s
licenses during inspections; and
(5) Uploads of CMV inspection data in
accordance with FMCSA policy.
The High Priority Program was a setaside of MCSAP funds with an
authorization level of up to $15 million
prior to FY 2017. Eligible recipients
included State agencies, local
governments, and organizations
representing government agencies that
used and trained qualified officers and
employees in coordination with State
motor vehicle safety agencies. FMCSA
provided High Priority Program funds to
enable recipients to carry out
enforcement activities and projects that
improved CMV safety and compliance
with CMV regulations. Funding was
also available for projects that were
national in scope, increased public
awareness and education, demonstrated
new technologies, and reduced the
number and rate of CMV crashes. The
grant period of performance was the
fiscal year of obligation and the next
fiscal year.
The New Entrant grant program was
also a set-aside of MCSAP funds with an
authorization level of up to $32 million
prior to FY 2017. Eligible recipients
included State agencies and local
governments. The grant program funded
safety audits on new entrant motor
carriers to ensure that they had effective
safety management programs. The grant
period of performance was the fiscal
year of obligation and the next fiscal
year.
The Border Enforcement Grant (BEG)
program was a standalone grant program
with an authorization level of up to $32
million prior to FY 2017. FMCSA
PO 00000
Frm 00005
Fmt 4701
Sfmt 4702
44165
provided BEG program funds to eligible
recipients, which included State
governments or entities that share a land
border with Canada or Mexico and any
local government or entity in that State,
for carrying out border CMV safety
programs and related enforcement
activities and projects. The grant period
of performance was the fiscal year of
obligation and the next fiscal year.
The PRISM program was a standalone
grant program with an authorization
level of up to $5 million prior to FY
2017. Eligible recipients included State
agencies, the District of Columbia,
Puerto Rico, and the Territories. FMCSA
provided PRISM funds to enable
recipients to link State CMV registration
and licensing systems with Federal
motor carrier safety information
systems. The grant period of
performance was from the date of
execution through the award end date,
as provided in the grant agreement.
The Safety Data Improvement
Program was a standalone grant program
with an authorization level of up to $3
million prior to FY 2017. Eligible
recipients included State governments
such as departments of public safety,
departments of transportation, or State
law enforcement agencies in any State,
the District of Columbia, Puerto Rico,
and the Territories, or any agency or
instrumentality of a State exclusive of
local governments. FMCSA provided
Safety Data Improvement Program funds
to eligible recipients that collected,
analyzed, and reported large truck and
bus crash and inspection data to
improve the quality of the CMV data
reported by States to FMCSA. The grant
period of performance was from the date
of execution through the award end
date, as provided in the grant
agreement.
The Commercial Vehicle Information
Systems and Networks (CVISN) was a
standalone grant program with an
authorization level of up to $25 million
prior to FY 2017. Eligible recipients
included agencies of States, the District
of Columbia, Puerto Rico, and the
Territories. FMCSA provided funding to
advance technological capability and
promote the deployment of intelligent
transportation systems applications for
commercial vehicle operations,
including CMV, commercial driver, and
carrier-specific information systems and
networks. The grant period of
performance was from the date of
execution through the award end date,
as provided in the grant agreement.
B. FAST Act
The FAST Act restructured FMCSA’s
financial assistance programs. It created
a standalone High Priority Program that
E:\FR\FM\22AUP3.SGM
22AUP3
44166
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
is a competitive financial assistance
program. It has two major purposes: (1)
Supporting, enriching, and augmenting
activities related to motor carrier safety;
and (2) promoting Innovative
Technology Deployment. The
Innovative Technology Deployment
program modifies and replaces
FMCSA’s Commercial Vehicle
Information Systems and Networks
program. The Safety Data Improvement
Program and PRISM, which were
previously standalone grant programs,
were merged into both the High Priority
Program and MCSAP. The New Entrant
grant program and standalone BEG were
also merged into MCSAP.
Section 5106(d) of the FAST Act
prescribed the MCSAP interim funding
formula for FY 2017 and later fiscal
years, as necessary. The interim formula
uses the MCSAP funding formula used
in FY 2016 plus the average funding
awarded to a State in FYs 2013, 2014,
and 2015 for BEG and New Entrant
program grant funds. Subject to the
availability of funding and
notwithstanding fluctuations in the data
elements, the initial amounts in FY
2017 were adjusted to ensure that, for
each State, the amount provided while
using the interim formula was not less
than 97 percent of the average amount
of funding received in FYs 2013, 2014,
and 2015, or other equitable amounts.
In FY 2018, FMCSA awarded
$294,416,500 for MCSAP formula grants
using the interim formula, and
$42,424,178 for the High Priority
Program through a competitive financial
assistance process. Additional
information on the Agency’s financial
assistance programs may be found at
https://www.fmcsa.dot.gov/mission/
grants.
The FAST Act added 49 U.S.C.
31102(f), which created additional
allowances for States when determining
their average levels of expenditure for
purposes of the MCSAP-required
maintenance of effort.4 States may
exclude expenditures for activities
related to border enforcement and new
entrant safety audits. In addition,
section 5107 of the FAST Act permits
States to request a one-time adjustment
to their maintenance of effort baselines
in the first year a new MCSAP
allocation formula is implemented. The
adjusted baseline will become the
State’s baseline maintenance of effort
that is required each fiscal year as part
4 Each fiscal year, a State must maintain the
average aggregate expenditure (maintenance of
effort) of the Lead State Agency, exclusive of
Federal funds and State matching funds, for CMV
safety programs eligible for MCSAP funding at a
level at least equal to the average level of that
expenditure for fiscal years 2004 and 2005.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
of the CVSP or annual update. This
adjustment eases the burden on
FMCSA’s State partners by accounting
for the potentially increased match
requirements under MCSAP grant
consolidation. States must request this
adjustment before September 30 of the
fiscal year in which the new formula is
implemented. Furthermore, if a State
subsequently identifies new
information, the State may request a
modification to its maintenance of effort
baseline (49 U.S.C. 31102(f)(2)).
C. FAST Act Omnibus Rule
On October 14, 2016, FMCSA
published a final rule titled
‘‘Amendments To Implement Grants
Provisions of the Fixing America’s
Surface Transportation Act’’ (81 FR
71002). That rule made
nondiscretionary, ministerial changes to
FMCSA regulations, consistent with the
FAST Act. For example, it consolidated
the BEG, New Entrant grant, and parts
of the Safety Data Improvement
Program, PRISM, and Innovative
Technology Deployment grants into the
MCSAP formula grant. This grant
consolidation reduced the
administrative burden on eligible
recipients, provided more flexibility to
eligible recipients, and streamlined the
grant application process. In addition,
the rule required that each State
establish and maintain a new entrant
safety audit program as a condition of
MCSAP funding. To continue to receive
MCSAP funding for border enforcement,
eligible States were required to maintain
a border enforcement program.
Furthermore, FMCSA amended its
regulations to remove the requirement
for an annual CVSP. This change
allowed States to use a 3-year CVSP, but
did not require it (discussed in full
below). Finally, the rule provided that
lead State agencies (i.e., those State
agencies responsible for MCSAP
administration) are not eligible to apply
for High Priority Program funds for
Safety Data Improvement Program and
PRISM capabilities, unless such projects
exceed the minimum requirements.
D. MCSAP Formula Working Group
The FAST Act required the Secretary
to establish a working group to analyze
requirements and factors to recommend
a new MCSAP allocation formula to the
Secretary. The FAST Act mandated that
the group be composed of
representatives from State CMV safety
agencies, an organization representing
State CMV enforcement agencies,
FMCSA, and any other persons that the
Secretary considered necessary for the
development of a new MCSAP
allocation formula. Congress mandated
PO 00000
Frm 00006
Fmt 4701
Sfmt 4702
that State safety agency participation
make up at least 51 percent of the
working group and exempted the group
from the Federal Advisory Committee
Act.
FMCSA requested applications for
working group members through a
notice posted on the Agency’s website
and through direct solicitation of
MCSAP lead State agencies. An FMCSA
panel reviewed applications and
recommended applicants who would
create a diverse working group, taking
into consideration a State’s location and
size.
The working group was established in
March 2016. It held six in-person
meetings and several web conferences to
discuss various factors and issues
relevant to the creation of a new MCSAP
allocation formula. The working group
created a web page 5 that contains
meeting summaries for both in-person
and web-based discussions.
To develop its recommendation, the
working group used the following
guiding principles and agreed the new
formula should:
• Be safety-based (primary objective);
• Improve the previous formula;
• Address FAST Act grant changes;
• Meet FAST Act formula
requirements;
• Promote stability in funding;
• Respond to changes in States’
exposure to crashes; and
• Use quality data sources.
In applying these principles, the
working group studied the current
allocation formula’s design and data
elements and used it as a baseline. To
improve motor carrier safety, the
primary consideration was to develop a
new MCSAP allocation formula that
provides States with an appropriate
level of funding based on exposure to
crashes. The working group chose to
base the formula on factors correlated
with crashes, rather than the number of
crashes itself, because using CMV
crashes as a factor in the allocation
formula has undesired impacts, such as
punishing States for having an effective
CMV safety program.
The working group applied a variety
of analytical methods to:
• Identify areas in the current formula
to improve;
• Create alternative formula designs;
and
• Evaluate impacts of the proposed
formulas with respect to the guiding
principles.
The analytical methods used by the
working group are described in the
working group’s report and the
5 See www.fmcsa.dot.gov/mission/grants/fast-actmcsap-formula-working-group.
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
appendices. These methods include, but
are not limited to:
• Analyzing the correlation between
each proposed factor and the next year’s
CMV crashes using linear regression.
(Note that this was tested over the
course of 5 years for each factor to
ensure consistency in the results.)
• Generating and evaluating
histograms of changes in proposed
formula factors over time to quantify the
stability of each potential formula
factor.
• Experimenting with different
formula structures (e.g., assigning
different weights to each factor).
• Generating simulated formula
allocation results with each iteration of
the proposed formula to understand and
evaluate the impacts of each proposed
change.
The working group submitted a report
titled ‘‘Recommendations to the U.S.
Department of Transportation for the
Development of the New MCSAP Grant
Allocation Formula’’ to FMCSA, which
was received on April 7, 2017. FMCSA
reviewed the report and agreed with the
majority of the working group’s
recommendations. To facilitate
additional input from the working group
and transparency in the development of
a new MCSAP allocation formula, the
FMCSA Administrator requested that
the working group reconvene for further
deliberation on three of its
recommendations. The working group
submitted an addendum to its report on
January 8, 2019. A full discussion of this
process can be found below. Copies of
the report and addendum are included
in the docket.
E. Voluntary Implementation of CVSPs
Section 5101 of the FAST Act requires
the Secretary to prescribe procedures for
a State to submit a multi-year CVSP
with annual updates for MCSAP grants.
In a Federal Register notice published
on October 27, 2016, FMCSA asked 14
questions to assist the Agency in
developing an information technology
system format and procedures for
submission of such a CVSP (81 FR
74862). FMCSA considered comments
in response to the Federal Register
notice,6 the status of the working
group’s recommendation, and necessary
electronic CVSP (eCVSP) tool
modifications. As a result, the Agency
created a CVSP with a 3-year plan cycle.
The Agency elected to test both the 3year CVSP and revised eCVSP tool. The
Agency sought volunteers and selected
18 States and 1 Territory to complete a
3-year CVSP for FY 2018. The selection
of volunteers was based on geography,
6 83
FR 691 (January 5, 2018).
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
program size, and programmatic
structure variety to allow the Agency to
fully test the functionality of the CVSP.
The 3-year plan cycle for this first group
of States included FYs 2018, 2019, and
2020.
Using the experience and feedback of
the 3-year CVSP users, FMCSA made
modifications to the CVSP and eCVSP
tool prior to the FY 2019 MCSAP
application. FMCSA worked with the
second group of 13 volunteer States to
submit their CVSPs by August 1, 2018.
The 3-year plan cycle for this second
group of States is FYs 2019, 2020, and
2021. States that did not move to 3-year
CVSPs for FY 2018 or FY 2019 were
required to submit an annual CVSP by
August 1, 2018.
FMCSA notes that the remaining
States voluntarily submitted a 3-year
CVSP by August 1, 2019. This third
group of States completed their CVSPs
for FYs 2020, 2021, and 2022.
FMCSA expects that States will
remain on one of these 3-year planning
cycles. For example, States that began
submitting 3-year CVSPs in FY 2017 for
FY 2018–20 grants will submit a 3-year
CVSP again in 2020 for the FY 2021–23
grants.
VI. Discussion of the Proposed
Rulemaking
A. Separation of MCSAP and the High
Priority Program Provisions
This NPRM proposes to separate the
regulations governing MCSAP and the
standalone High Priority Program
created by the FAST Act. Currently, the
regulatory provisions for MCSAP and
the High Priority Program are
intermingled. This NPRM proposes to
organize the programs into distinct
regulatory subparts under 49 CFR part
350 to reflect the relevant information
for each program. This separation would
make it easier to find needed regulatory
information. For MCSAP, the
regulations have been reorganized and
modified to comply with FAST Act
requirements, provide clarity, and
remove redundancies. For the High
Priority Program, the regulations have
been modified to clarify eligibility
conditions.
The Agency proposes to implement
the changes to FMCSA’s financial
assistance programs required by the
FAST Act beginning October 1, 2019,
for FY 2020. However, consistent with
section 5101(a) of the FAST Act and a
prior rulemaking implementing select
provisions of the FAST Act (81 FR
71002, October 14, 2016), mandatory
participation in PRISM remains October
1, 2020 (49 U.S.C. 31102(c)(2)(Z)).
PO 00000
Frm 00007
Fmt 4701
Sfmt 4702
44167
B. Proposed MCSAP Allocation Formula
Working Group Recommendation
The working group recommended that
the formula consist of three separately
calculated components: A Territory
Component, Basic Component, and
Border Component. As further
explained below, the working group
also recommended terminating the
MCSAP Incentive Program.
The new MCSAP allocation formula
recommended by the working group
makes several improvements to the
current formula. The FAST Act outlined
several factors for the working group to
consider.7 The working group analyzed
objective safety data and other
information prior to making its MCSAP
allocation formula recommendation.
Various methods of research and
analysis were used to understand each
area of improvement, create alternative
formula designs, and evaluate their
impacts with respect to the guiding
principles. These efforts included:
• Identifying and obtaining data
sources.
• Evaluating data sources to
determine if they met the criteria for
formula inclusion, e.g., through
statistical analysis.
• Reviewing and considering
programmatic needs and trends.
• Understanding the varying
administrative needs of grant recipients.
• Understanding the investments that
recipients made with grant funding (e.g.,
personnel and benefits, contract
services, equipment, etc.).
• Reviewing published reports by the
Office of the Inspector General (OIG),
the National Research Council (NRC),
and a previous MCSAP formula
evaluation by Oak Ridge National
Laboratory.
• Conducting simulations to evaluate
funding impacts.
The working group’s recommended
MCSAP allocation formula includes
only those factors that are most highly
correlated with a State’s total CMV
crashes, have data that are reliably
obtainable, and meet the objectives
mandated by the FAST Act.
With respect to the Territory
Component, the data used to calculate
7 These factors must reflect, at a minimum ‘‘(1)
the relative needs of the States to comply with
section 31102 of title 49, United States Code; (2) the
relative administrative capacities of and challenges
faced by States in complying with that section; (3)
the average of each State’s new entrant motor
carrier inventory for the 3-year period prior to the
date of enactment of this Act; (4) the number of
international border inspection facilities and border
crossings by commercial vehicles in each State; and
(5) any other factors the Secretary considers
appropriate.’’ See § 5106(c) of the FAST Act, Public
Law 114–94, 129 Stat. 1312, 1531 (2015).
E:\FR\FM\22AUP3.SGM
22AUP3
44168
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
the Basic Component (discussed below)
is not available for the Territories,
defined as American Samoa, the
Commonwealth of the Northern Mariana
Islands, Guam, and the Virgin Islands.
Thus, the working group originally
recommended that the Territories have
a separate component that allocates a
maximum of 0.65 percent of available
MCSAP funds among these Territories.
The allocation would be based on
FMCSA’s assessment of each Territory’s
proposed CMV projects and costs
included in its CVSP. The working
group recommended a funding floor to
ensure that Territories would receive a
minimum amount to maintain an
effective program, and it tasked FMCSA
with establishing this floor.
The Basic Component allocates
funding to States, which includes the
District of Columbia and Puerto Rico,
based on factors that are highly
correlated with the State’s total CMV
crashes. This allocation, as originally
proposed by the working group, would
represent at least 89.85 percent of
available MCSAP funds, plus any
unallocated Border and Territory
Component amounts. The Basic
Component allocation calculates a
proportion for each State based on the
following five equally-weighted factors,
using the most recent data available:
(1) National Highway System Road
Length—total National Highway System
roadway miles contained within the
jurisdictional boundaries of the State as
measured by the FHWA;
(2) Total VMT—total VMT for all
vehicles within the State as measured
by the FHWA;
(3) Total Population—U.S. Census
Bureau population estimates;
(4) Special Fuel Consumption—total
consumption of special fuels within the
State as measured by the FHWA; and
(5) Motor Carrier Registrations—the
number of interstate carriers and
intrastate hazardous materials carriers
as measured by FMCSA to address a
FAST Act requirement on new entrant
carriers.
To equally weight the factors, each
State’s percentage of the national total
for each factor would be determined.
Then, the five percentages for each State
are combined to result in the State’s
percentage.
While the new Basic Component
includes all the factors included in the
current formula, the working group
proposed an update to an existing factor
and one addition. For example, the
existing formula factor of 1997 road
miles is removed, and it is replaced
with the more current National Highway
System highway miles, which would be
updated as new data becomes available
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
(versus the static factor of 1997). Not
only does the National Highway System
miles formula factor provide a more
recent measurement of roadway
exposure, it is also more highly
correlated with CMV crashes. The
working group recommended adding
carrier registrations to the Basic
Component as a new factor because of
its stability over time, correlation with
crashes, and ability to account for new
entrant safety audit workload (a FAST
Act mandated MCSAP requirement).
The working group recommended
adjustments to the proportions
calculated under the Basic Component
to ensure that each State receives at
least 0.44 percent, but no more than
4.944 percent, of the MCSAP funds
available for the Basic Component. After
adjustment, each State’s percentage
would be multiplied by the total
MCSAP funds available for the Basic
Component to determine the dollar
value of the State’s allocation under the
Basic Component.
In addition, the working group
recommended eliminating the existing
MCSAP Incentive funds in favor of a
risk-based 8 and consistent formula in
alignment with the goals of the working
group and the FAST Act. The working
group stated that funding can have a
greater safety impact by allocating it to
recipients who need it to address safety
issues, rather than when it is used as an
incentive for certain program areas.
Furthermore, according to the working
group, the existing program-oriented
incentive factors are no longer relevant.
In the past, they have helped improve
compliance in certain program areas
(especially data quality), but those areas
are no longer the focus for improvement
(almost all States have good data quality
now). Finally, the working group noted
that the FAST Act expanded MCSAP
participation requirements so that
program aspects that previously
required incentivizing are now basic
participation requirements. Thus, State
performance in reaching safety
objectives can be assessed through
effective performance management
techniques employed by FMCSA. To
this end, FMCSA continues to
modernize its existing Analysis and
Information resources used to monitor
MCSAP, and has instituted a
performance, standards and benchmarks
initiative with States to develop
additional performance metrics, trend
analysis, and reporting tools.
8 The working group intended the term ‘‘crash
risk’’ to refer to a State’s total number of crashes
expected to occur during a year, and not a crash
rate. See Part II, Section 3D, and Part III, Section
2A of the report.
PO 00000
Frm 00008
Fmt 4701
Sfmt 4702
The Border Component aims to
maintain safety gains attained through
border CMV enforcement programs and
to support continued performance of
CMV safety inspections, traffic
enforcement, and other activities
pertaining to vehicles engaged in
international commerce or occurring
near our borders with Canada and
Mexico. To provide adequate resources,
the working group originally
recommended that the Border
Component should allocate a maximum
of 9.5 percent of available MCSAP funds
to border States.
Because funding for border activities
is mostly used to pay for personnel
conducting border activities, the
funding would be allocated based on
relative need for personnel in the
southern and northern border States.
The need for personnel would be
estimated based on the volume of
annual CMV crossings at each port of
entry and represented as full-time
employees (FTE).
The personnel needed at each port of
entry would be calculated as follows:
(1) Allocate the minimum required
FTE to each port of entry:
(a) 8 FTE per each Mexican port of
entry.
(b) 0.25 FTE per each Canadian port
of entry with more than 1,000 annual
CMV crossings.
(2) Allocate FTEs according to annual
CMV crossings (if not already covered
by the minimum):
(a) 25,000 crossings per FTE for
Mexican ports of entry.
(b) 200,000 crossings per FTE for
Canadian ports of entry.
The FTEs at all ports in a border State
would be totaled and divided by the
national total of FTEs, as demonstrated
by a percentage. There would be a
minimum (0.075 percent) and maximum
(50 percent) funding limit established to
ensure equitable distribution of grant
dollars among States sharing a land
border with Canada or Mexico. Each
border State’s percentage would be
multiplied by the total border allocation
amount available to determine the
dollar amount.
The new MCSAP allocation formula
would include hold-harmless and cap
provisions to ensure stable funding over
fiscal years, which would apply to a
State’s total share of MCSAP funds
allocated under the Basic and Border
Components. The hold-harmless
provision would be based on shares
rather than dollar amounts. A State
would receive no less than 97 percent
and no more than 105 percent of its
prior year’s share of MCSAP funding.
Neither the hold-harmless nor the cap
would apply to Territories.
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
FMCSA agreed with the majority of
the working group’s recommendations,
but requested that the working group
reconvene for further deliberation on
three of its recommendations. They
related to the percentages of MCSAP
funds allocated to the Territory and
Border Components, and the maximum
amount of the Border Component that a
State could receive.
FMCSA questioned the percentage of
total MCSAP funds allocated to the
Territory Component. FMCSA
determined that the current level of
$350,000 per Territory (which equated
to approximately 0.49 percent)
adequately addresses the CMV safety
needs in most of the Territories.
Therefore, allocating 0.65 percent of the
total MCSAP funds would exceed the
amount necessary for most Territories to
conduct their CMV safety programs.
FMCSA also suggested increasing the
percentage of total MCSAP funds
allocated to the Border Component from
a maximum of 9.5 percent to 11 or 12
percent. This suggestion was made due
to increased border activity in recent
years and several recent policy changes,
including the renegotiation of trade
agreements, that may impact border
activity. In addition, an allocation of 11
percent would maintain current Federal
funding levels and an allocation of 11 or
12 percent would still align with CMV
crashes.
Finally, FMCSA suggested removing
the 50 percent maximum limit on the
amount of the Border Component a
State could receive. This suggestion was
made because the 50 percent limit
would not meet the growing needs of
the State with the most border activity.
The working group reconvened and
met four times via interactive web
conferences to consider FMCSA’s
concerns. A process that was similar to
the one used to develop the original
recommendations was followed. The
working group discussed the questions
raised by FMCSA in relation to the
original recommendations and the
various options that were considered
during the group’s deliberations.
Additional data relating to discretionary
funding for border activities, with
accompanying match requirements,
prior to the FAST Act, as well as
financial performance metrics and fund
utilization for Territorial jurisdictions,
was analyzed so the working group
could understand and evaluate the
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
potential impact of FMCSA’s
suggestions. All of FMCSA’s suggestions
were evaluated based on the established
guiding principles.
The working group concurred, based
on the information provided by FMCSA,
that an allocation of not more than 0.49
percent for the Territory Component
adequately addresses CMV safety needs
in the Territories. With respect to the
Border Component allocation, the group
agreed that an increase in the maximum
allocation to 11 percent maintained
Federal funding levels that were based
on border enforcement needs and that
the group’s recommendation should be
adjusted accordingly. The working
group continued to find that a border
maximum is necessary to maintain the
balance of the funding levels between
larger and smaller border States and to
promote funding stability. An increase
to a maximum of 55 percent was
recommended because it meets the
current needs of the State with the most
border activity.
FMCSA’s Proposed MCSAP Allocation
Formula
FMCSA has reviewed the amended
recommendations provided by the
working group, agrees with the rational
for the proposed changes, and is
adopting them in full. In this NPRM,
FMCSA proposes a new MCSAP
allocation formula as § 350.217. FMCSA
proposes to adopt the working group’s
three components: A Territory
Component; Border Component; and
State Component.9
FMCSA supports establishing a
separate Territory Component and the
set-aside of not more than 0.49 percent
of MCSAP funds for Territories. FMCSA
proposes that each territory receive no
less than $350,000, with the remaining
MCSAP funds allocated among
Territories in a manner proportional to
the Territories’ populations, as reflected
in the decennial census issued by the
U.S. Census Bureau.
FMCSA proposes establishing a
separate Border Component, using the
formula that the working group
recommended. Therefore, a maximum
of 11 percent of MCSAP funds would be
allocated to the Border Component with
each border State receiving at least
9 FMCSA proposes changing the name of the
‘‘Basic Component’’ to the ‘‘States Component’’ to
provide a distinction between the proposed formula
and the interim formula.
PO 00000
Frm 00009
Fmt 4701
Sfmt 4702
44169
0.075 percent but no more than 55
percent of the total border allocation
available. Additionally, FMCSA
proposes using the term ‘‘share’’ instead
of the term ‘‘FTE’’ used by the working
group, because FMCSA does not want to
inadvertently imply how many
personnel should be employed at each
port of entry as part of the funding
allocation.
Under the share calculation, border
States would receive 1 share per 25,000
annual CMV crossings at each United
States port of entry on the Mexican
border, with a minimum of 8 shares for
each United States port of entry on the
Mexican border, or 1 share per 200,000
annual CMV crossings at each United
States port of entry on the Canadian
border, with a minimum of 0.25 shares
for each United States port of entry on
the Canadian border with more than
1,000 annual CMV crossings.
FMCSA proposes establishing a State
Component using the working group’s
Basic Component formula. At least
88.51 percent of MCSAP funds would
be set aside for this component.
The table below shows estimated FY
2020 awards to each State and Territory
under the interim funding formula, as
prescribed by the FAST Act, and the
new proposed formula. The FY 2020
FAST Act authorized amount of
$304,069,500 (after a 1.5 percent
administrative takedown fund set-aside)
was used to calculate the estimated
awards. The Agency calculated the
estimated funding for FY 2020 using the
FY 2018 formula factor data, which was
the most recent available at the time of
calculation. Data used to calculate the
formula may change each year so the
funding shown is an estimated amount
at that point in time. Please note the
below table also provides an estimation
of percentage difference in funding
allotment comparing the interim
formula to the proposed new formula
(using estimated FY 2020 dollars). The
hold-harmless and cap provisions
proposed in this NPRM would mitigate
any gain or loss in funding from the
previous year’s formula calculation. For
example, if the newly proposed formula
were implemented in FY 2020, no State
would lose more than 3 percent, or gain
more than 5 percent, compared to their
share of the formula grant calculation in
FY 2019. Therefore, the estimated FY
2020 funding shown in the table is not
guaranteed.
E:\FR\FM\22AUP3.SGM
22AUP3
44170
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
ESTIMATED MCSAP FUNDING FORMULA COMPARISON a b
Including Oregon
FY 2020
estimated
interim
formula
awards
State/territory
FY 2020
estimated
MCSAP
formula award
(new formula
as
proposed by
FMCSA)
Excluding Oregon
FY 2020
estimated
interim
formula
awards
Percent
difference
FY 2020
estimated
MCSAP
formula award
(new formula
as proposed
by FMCSA)
Percent
difference
Alabama ...................................................
Alaska ......................................................
American Samoa .....................................
Arizona .....................................................
Arkansas ..................................................
California ..................................................
Colorado ...................................................
Connecticut ..............................................
Delaware ..................................................
District of Columbia ..................................
Florida ......................................................
Georgia ....................................................
Guam .......................................................
Hawaii ......................................................
Idaho ........................................................
Illinois .......................................................
Indiana .....................................................
Iowa ..........................................................
Kansas .....................................................
Kentucky ..................................................
Louisiana ..................................................
Maine .......................................................
Maryland ..................................................
Massachusetts .........................................
Michigan ...................................................
Minnesota .................................................
Mississippi ................................................
Missouri ....................................................
Montana ...................................................
Nebraska ..................................................
Nevada .....................................................
New Hampshire .......................................
New Jersey ..............................................
New Mexico .............................................
New York .................................................
North Carolina ..........................................
North Dakota ............................................
Northern Marianas ...................................
Ohio ..........................................................
Oklahoma .................................................
Oregon .....................................................
Pennsylvania ............................................
Puerto Rico ..............................................
Rhode Island ............................................
South Carolina .........................................
South Dakota ...........................................
Tennessee ...............................................
Texas .......................................................
Utah ..........................................................
Vermont ....................................................
Virgin Islands ...........................................
Virginia .....................................................
Washington ..............................................
West Virginia ............................................
Wisconsin .................................................
Wyoming ..................................................
$5,981,155
1,269,196
350,000
11,234,838
4,371,959
18,590,048
4,906,099
2,393,631
1,251,260
1,092,231
12,706,226
10,223,708
350,000
1,066,679
2,500,201
11,177,027
7,600,938
5,004,354
4,504,320
4,736,164
4,502,334
1,815,663
3,898,791
4,437,614
8,663,352
6,711,732
4,008,984
6,892,605
3,063,123
3,650,919
2,596,460
1,352,053
7,038,352
4,002,101
13,199,642
8,730,173
2,889,717
350,000
10,070,415
5,927,263
3,745,475
10,038,363
1,172,803
1,356,289
4,824,547
2,359,346
6,630,299
30,695,205
3,093,422
1,212,839
350,000
6,760,878
6,566,316
2,297,186
6,439,562
1,415,639
$5,965,678
1,257,326
350,000
10,804,840
4,138,170
19,145,982
4,950,448
2,527,768
1,166,066
1,118,593
13,102,346
10,443,179
439,941
1,099,298
2,436,607
11,285,176
7,286,679
4,837,215
4,458,505
4,686,676
4,346,759
1,751,636
4,175,980
4,604,630
8,967,604
6,422,249
3,893,741
6,844,323
2,994,454
3,626,881
2,584,009
1,343,600
6,943,724
4,107,636
12,842,509
8,972,029
2,696,955
350,000
9,781,884
5,769,781
3,946,430
10,424,935
1,166,066
1,300,175
4,796,236
2,253,064
6,489,424
31,217,150
3,085,281
1,298,730
350,000
6,895,938
6,457,545
2,171,592
6,188,280
1,507,775
0
¥1
0
¥4
¥5
3
1
6
¥7
2
3
2
26
3
¥3
1
¥4
¥3
¥1
¥1
¥3
¥4
7
4
4
¥4
¥3
¥1
¥2
¥1
0
¥1
¥1
3
¥3
3
¥7
0
¥3
¥3
5
4
¥1
¥4
¥1
¥5
¥2
2
0
7
0
2
¥2
¥5
¥4
7
$6,084,689
1,269,068
350,000
11,332,514
4,448,908
18,587,874
4,994,077
2,434,316
1,250,776
1,091,747
12,704,051
10,394,519
350,000
1,066,422
2,541,685
11,359,365
7,728,822
5,087,635
4,584,021
4,819,511
4,581,061
1,842,792
3,970,778
4,514,021
8,805,741
6,824,363
4,079,776
7,014,924
3,102,581
3,709,539
2,643,932
1,351,569
7,140,767
4,058,337
13,412,776
8,880,140
2,934,189
350,000
10,250,889
6,025,865
¥
10,214,498
1,195,818
1,355,805
4,910,771
2,400,857
6,743,955
30,693,031
3,147,010
1,212,647
350,000
6,879,407
6,664,872
2,335,720
6,548,726
1,442,339
$5,965,678
1,257,326
350,000
10,804,840
4,138,170
19,368,217
5,103,801
2,527,768
1,179,601
1,118,593
13,254,430
10,443,179
439,941
1,099,298
2,436,607
11,634,765
7,286,679
4,837,215
4,458,505
4,784,186
4,346,759
1,751,636
4,175,980
4,604,630
9,224,388
6,453,904
3,994,903
6,975,820
2,994,454
3,626,881
2,664,056
1,384,743
7,158,824
4,107,636
13,226,416
9,249,962
2,696,955
350,000
10,046,336
5,769,781
¥
10,424,935
1,179,601
1,300,175
4,944,812
2,253,064
6,683,303
31,579,500
3,085,281
1,298,730
350,000
7,109,558
6,457,545
2,238,863
6,363,493
1,507,775
¥2
¥1
0
¥5
¥7
4
2
4
¥6
2
4
0
26
3
¥4
2
¥6
¥5
¥3
¥1
¥5
¥5
5
2
5
¥5
¥2
¥1
¥3
¥2
1
2
0
1
¥1
4
¥8
0
¥2
¥4
¥
2
¥1
¥4
1
¥6
¥1
3
¥2
7
0
3
¥3
¥4
¥3
5
Total ..................................................
304,069,500
304,069,500
0
304,069,500
304,069,500
0
a Estimated calculations for FY 2020 are shown both with and without the State of Oregon. Note that Oregon did not participate in FY 2019,
but it may re-enter the program in the future.
b Calculation of funds for the proposed formula was made after setting aside 11 percent for the Border Component and 0.49 percent for the
Territory Component of available MCSAP funds, and applying the hold-harmless and cap provisions as explained above.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
PO 00000
Frm 00010
Fmt 4701
Sfmt 4702
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
C. CVSP
This rulemaking would implement
the FAST Act requirement that States
use multi-year CVSPs in proposed
§§ 350.209 and 350.211. This NPRM
proposes to require that all States
submit a CVSP covering a 3-year period.
Currently, States are voluntarily
submitting CVSPs covering a 3-year
period based upon the Federal Register
notice published on January 5, 2018 (83
FR 691) and the explicit requirement for
the establishment of multi-year plans in
section 5101(a) of the FAST Act (49
U.S.C. 31102(c)(1)).
FMCSA would expect to have
approximately one-third of MCSAP
applicants completing 3-year CVSPs in
each grant application year, with the
other two-thirds submitting annual
updates. States would submit the 3-year
CVSP, or the second and third year
annual updates, to FMCSA by the date
prescribed in the MCSAP application
memorandum for that fiscal year.
First Year of the CVSP
FMCSA proposes to require that
States submit through the eCVSP online
tool the following prior to the first year
of the CVSP:
(1) Quantitative objectives regarding
the national MCSAP elements and
related State-specific objectives for all 3
years;
(2) Analysis of past performance;
(3) Budget and resource allocation
information for the first year of the
CVSP;
(4) Monitoring plan;
(5) List of MCSAP contacts;
(6) Certification of MCSAP
conformance;
(7) Annual certification of
compatibility;
(8) New or amended laws and
regulations relevant to CMV safety; and
(9) Additional information as required
in the MCSAP application
memorandum.
Second and Third Years of the CVSP
For the second and third years of the
CVSP, States would provide an annual
update, including that year’s budget,
and revise program goals and
certifications, if needed. States would
submit through the eCVSP online tool
the following for the second and third
years of the CVSP:
(1) Revised program goals, if needed;
(2) Budget and resource allocation
information for the applicable fiscal
year;
(3) List of MCSAP contacts;
(4) Certification of MCSAP
conformance;
(5) New or amended laws and
regulations relevant to CMV safety;
(6) Annual certification of
compatibility; and
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
(7) Additional information as required
in the MCSAP application
memorandum.
D. Performance and Registration
Information Systems Management
(PRISM)
To be eligible to receive MCSAP
funding, each State must fully
participate in PRISM by October 1,
2020, or use an alternative approach
approved by FMCSA for identifying and
immobilizing a motor carrier with
serious safety deficiencies. To ‘‘fully
participate’’ in PRISM, a State must
satisfy the conditions of 49 U.S.C.
31106(b)(3), including the suspension
(or revocation) and denial of a vehicle
registration if the motor carrier
responsible for safety of the vehicle is
under any Federal out-of-service order.
Therefore, this NPRM reflects the
appropriate changes to MCSAP
eligibility in proposed § 350.207(a)(27).
However, the requirement for
participation in PRISM by October 1,
2020, does not extend to the Territories,
including Puerto Rico.
E. Authorization and Appropriations
Related Changes
The distribution of MCSAP funding is
often impacted by FMCSA’s
authorizations and appropriations.
Thus, a new provision is proposed as
§ 350.219 to explain the FMCSA
Administrator’s discretion (found
generally in 49 U.S.C. 31102) to
distribute funding during an extension
of the Agency’s authorization or during
a period the Agency is operating under
a continuing resolution.
F. Relocation of 49 CFR Part 355—
Compatibility of State Laws and
Regulations Affecting Interstate Motor
Carrier Operations
This NPRM would relocate relevant
requirements of 49 CFR part 355 to part
350. FMCSA proposes this move to
improve ease of use of the regulations
and improve understanding of the interrelationship between MCSAP and State
laws. Remaining provisions of part 355,
including the Appendix, would be
eliminated. FMCSA would reserve the
current part 355 for future use.
G. 49 CFR Part 385 Subpart E—
Hazardous Material Safety Permits
The rule proposes to clarify a State’s
obligation to cooperate in the
enforcement of hazardous materials
safety permits for interstate and
intrastate carriers to transport certain
hazardous materials, as required under
subpart E of 49 CFR part 385. These
regulations require a motor carrier to
hold a safety permit issued by FMCSA
PO 00000
Frm 00011
Fmt 4701
Sfmt 4702
44171
and to keep a copy of the permit, or
other proof of its existence, in the
vehicle. Adding a requirement that
States cooperate in the enforcement of
subpart E of part 385 as a condition of
MCSAP funding would clarify States’
obligation to document compliance with
hazardous materials permit
requirements in the course of
inspections that States conduct.
H. Removal of 49 CFR Part 388—
Cooperative Agreements With States
FMCSA is proposing to remove 49
CFR part 388, titled ‘‘Cooperative
Agreements with States.’’ Part 388
predates MCSAP. Under its current
statutory authority, FMCSA provides
financial assistance to States to address
CMV safety and to reduce the number
and severity of crashes involving CMVs.
This is conducted primarily through
MCSAP, governed by part 350. While
Congress provides funding to support
MCSAP, there is no specific funding
source supporting a financial assistance
program under part 388. Thus, FMCSA
does not rely on part 388 to enter into
agreements with States to enforce
Federal and State safety laws and
regulations concerning motor carrier
operations. FMCSA would reserve part
388 for future use.
I. Other Proposed Changes
Because MCSAP has evolved through
multiple authorization and
appropriations acts, the existing
regulations are redundant and not
orderly. As stated above, this NPRM
proposes an organizational change that
separates MCSAP and the High Priority
Program into distinct regulatory
subparts under 49 CFR part 350. This
NPRM proposes to reorganize part 350
so that the program requirements are
clearer, more succinct, and presented
chronologically from grant application
through execution.
In addition, definitions would be
updated and expanded to reflect the
proposed changes to the grant programs
or to otherwise provide consistency. For
example, the definition of
‘‘investigation’’ is used rather than
‘‘compliance review’’ to reflect the
revised national MCSAP elements. The
definition of ‘‘motor carrier’’ in
§ 350.105 would be revised to be more
consistent with the definition provided
in § 390.5T. The definition of ‘‘HMRs’’
would be updated to include all of part
171 concerning HMRs. Specifically, the
rule proposes to eliminate the exception
to adopt §§ 171.15 and 171.16 by States
participating in MCSAP. This would
require those States that choose to
conduct investigations to ensure
compliance with the hazardous
E:\FR\FM\22AUP3.SGM
22AUP3
44172
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
materials incident reporting
requirements contained in these
sections. The elimination of this
exception to the HMRs would not create
a new State hazardous materials
reporting requirement.
FMCSA would clarify in proposed
§ 350.305(b) that a State may retain an
exemption for a particular segment of
the motor carrier industry from all or
part of its laws or regulations that were
in effect before April 1988. However, to
retain the exemption, it must continue
to be in effect, it must apply to specific
industries operating in intrastate
commerce, and the scope of the original
exemption must not have been
amended.
J. Request for Comments
FMCSA is requesting public comment
on all provisions being proposed in this
NPRM. Additionally, the Agency is
specifically seeking comment on the
following questions.
1. Are there other elements FMCSA
should consider including in a new
MCSAP allocation formula and, if so,
what are they? Why should such
elements be considered? How would
they promote safety?
2. Should there be additional
requirements in CVSPs to ensure
MCSAP funding is used efficiently to
promote safety and, if so, what are they?
Why should such requirements be
considered? How would they promote
safety?
3. Should the Incentive fund be
eliminated from a new MCSAP
allocation formula? Why should the
Incentive fund be kept or eliminated?
How would keeping or eliminating the
Incentive fund promote safety?
4. Should a new MCSAP allocation
formula include variables connected
with crash rates or risk? If so, what
variables should be considered and
why? How would such variables
promote safety?
4. Should a new MCSAP allocation
formula be more sensitive to changes in
crash rates? If so, how could a new
allocation formula be more sensitive to
changes in crash rates and why would
it be more sensitive to such changes?
How would such a formula promote
safety?
VII. International Impacts
The FMCSRs, and any exceptions to
the FMCSRs, apply only within the
United States (and, in some cases,
United States Territories). Motor carriers
and drivers are subject to the laws and
regulations of the countries in which
they operate, unless an international
agreement states otherwise. Drivers and
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
carriers should be aware of the
regulatory differences among nations.
VIII. Section-by-Section Analysis
In addition to the substantive changes
discussed below, FMCSA proposes
stylistic, conforming, and organizational
changes to the proposed rule for the
purposes of clarity and consistency.
A. Subpart A—General
Proposed subpart A would provide a
general overview and define the terms
used in part 350 applicable to both
MCSAP and the High Priority Program.
Furthermore, the Agency proposes to
restructure distinct provisions
pertaining to MCSAP and the High
Priority Program and codify them under
separate subparts.
§ 350.101 What is the purpose of this
part?
In this proposal, § 350.101 would be
added to provide a general description
of the purpose of part 350.
§ 350.103 When do the financial
assistance program changes take effect?
Proposed § 350.103 would be added
to specify the effective date of the
financial assistance program changes.
§ 350.105 What definitions are used in
this part?
FMCSA proposes to add the following
definitions to reflect phraseology used
in this rulemaking: ‘‘border State,’’
‘‘FMCSA,’’ ‘‘High Priority Program
funds,’’ ‘‘investigation,’’ and ‘‘Motor
Carrier Safety Assistance Program
(MCSAP) funds.’’ The term ‘‘traffic
enforcement,’’ which is defined in
existing § 350.111, would be added to
this section.
The definition of ‘‘commercial vehicle
safety plan (CVSP)’’ would be revised to
reflect that States would be required to
submit 3-year CVSPs. FMCSA also
proposes to modify the definition of
‘‘motor carrier’’ to more closely reflect
the definition in § 390.5T. Furthermore,
FMCSA proposes to modify the
definitions of ‘‘FMCSRs’’ and ‘‘HMRs’’
to reference standards and orders issued
under the respective regulations in
order to avoid repeating this
phraseology throughout the regulatory
text. Conversely, references to standards
and orders would be added throughout
the regulatory text where appropriate
when referring to State laws and
regulations for consistency. Finally, in
the definition of ‘‘HMRs,’’ the Agency
proposes to update the definition to
eliminate the exceptions for §§ 171.15
and 171.16 in existing §§ 350.337 and
355.5 in order to be consistent with
existing § 350.201(a) and current
PO 00000
Frm 00012
Fmt 4701
Sfmt 4702
practice for those States that conduct
investigations. Similarly, the
inconsistency in existing § 355.5
concerning the definition of ‘‘HMRs’’ as
it relates to the exception to part 107
would be eliminated. Consistent with
existing § 350.337, the proposed
definition would include subparts F and
G of part 107.
The following existing definitions in
§ 350.105 would be eliminated because
they are not used in this proposal: ‘‘10year average accident rate,’’ ‘‘Accident
rate,’’ ‘‘Agency,’’ ‘‘Basic Program
Funds,’’ ‘‘Incentive Funds,’’ ‘‘Innovative
Technology Deployment funds,’’ ‘‘Large
truck,’’ ‘‘Level of effort,’’ ‘‘Operating
authority,’’ and ‘‘Plan.’’
The remaining definitions that appear
in existing §§ 350.105 and 355.5 would
be revised for clarity.
B. Subpart B—Motor Carrier Safety
Assistance Program Administration
Proposed subpart B would provide an
overview of MCSAP only. Content
regarding the High Priority Program
would be addressed in proposed subpart
D.
§ 350.201
What is MCSAP?
Proposed § 350.201(a) is derived, in
part, from existing § 350.101(a), but
would add references to PRISM and
border enforcement requirements, as
applicable to MCSAP. Proposed
§ 350.201(b) is derived without
substantive change from existing
§ 350.103 as it relates to program
requirements. Proposed § 350.201(c)
would incorporate the substantive
content from the last sentence of
existing § 350.101(a).
§ 350.203 What are the national
MCSAP elements?
Proposed § 350.203 is derived, in part,
from existing § 350.109. New items (e),
(f), (g), and (j) would be added as part
of revisions to MCSAP. Item (d),
investigations, would be substituted for
the existing reference to compliance
reviews.
§ 350.205 What entities are eligible for
funding under MCSAP?
Proposed § 350.205 is derived from
existing § 350.107(a) without
substantive change. Governmental
entities eligible for funding would be
reflected in the definition of ‘‘State.’’
§ 350.207 What conditions must a
State meet to qualify for MCSAP funds?
Proposed § 350.207(a) is derived, in
part, from existing § 350.201, but is
reorganized for clarity and to reduce
redundancies. Proposed paragraph
(a)(25) would be revised to reflect that
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
certain exemptions are granted, not just
to individual drivers or carriers, but to
a particular class. Proposed paragraph
(a)(28) would be added to clarify a
State’s obligation to cooperate in the
enforcement of hazardous materials
safety permits. Proposed § 350.207(b)
would incorporate the substance of
existing § 350.201(z) relating to third
parties conducting new entrant safety
audits. Proposed § 350.207(c) would be
added to reflect exceptions applicable to
Territories concerning new entrant
safety audits and participation in
PRISM.
§ 350.209 How and when does a State
apply for MCSAP funds using a CVSP?
Proposed § 350.209 is derived, in part,
from existing § 350.205, but revised to
reflect the general requirements for
submitting a 3-year CVSP. It also
proposes that the deadline for the CVSP
submission be changed from August 1 to
a date that will be stated in the MCSAP
application memorandum. It further
proposes that the Administrator, rather
than the Division Administrator, may
extend the CVSP deadline.
§ 350.211 What must a State include
for the first year of the CVSP?
Proposed § 350.211 is derived, in part,
from existing §§ 350.209, 350.211,
350.213, and 350.331(b)(2). This
proposed section would set forth
information to be included for the first
year of the CVSP. The required
certifications would be consolidated in
proposed paragraph (i) by referring to
the conditions a State must meet to
qualify for MCSAP funding in proposed
§ 350.207. Proposed paragraph (i)(3)
would be added to clarify that the
certifying official must have the
necessary authority to certify the CVSP
on behalf of the State. The proposed
language would no longer require that a
State training plan be included as part
of the CVSP.
§ 350.213 What must a State include
for the second and third years of the
CVSP?
Proposed § 350.213 would be added
to set forth the information to be
submitted in the annual update for the
second and third years of the CVSP.
§ 350.215 What response does a State
receive to its CVSP or annual update?
Proposed § 350.215 is derived, in part,
from existing § 350.207, but revised to
reflect submissions under a 3-year
CVSP. FMCSA would revise the
proposed section to reflect current
practice that a State receives a response
to the CVSP within 30 days after
FMCSA begins its review of the CVSP,
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
rather than within 30 days of receipt of
the CVSP. It would also clarify
circumstances under which States
would not be eligible for MCSAP
funding.
§ 350.217 How are MCSAP funds
allocated?
Proposed § 350.217 sets forth the
proposed MCSAP allocation formula
and would replace existing §§ 350.313,
350.315, 350.317, 350.323, and 350.327.
Under this proposal, the availability of
Basic Program funds and Incentive
funds would be incorporated into the
State Component of the proposed
formula. The new MCSAP allocation
formula would also add a separate
Border Component and a separate
Territory Component.
§ 350.219 How are MCSAP funds
awarded under a continuing resolution
appropriations act or an extension of
FMCSA’s authorization?
Proposed § 350.219 would be added
to address MCSAP funding under a
continuing resolution appropriations act
or an extension of the Agency’s
authorization.
§ 350.221 How long are MCSAP funds
available to a State?
Proposed § 350.221 is derived, in part,
from existing § 350.307. Existing
regulatory language requiring that funds
be expended in the order that they are
obligated would be eliminated because
it is no longer necessary, given that
FMCSA requires a fixed period of
performance.
§ 350.223 What are the Federal and
State shares of costs incurred under
MCSAP?
Proposed § 350.223 would consolidate
existing §§ 350.303 and 350.305. In
paragraph (b), references to 2 CFR part
1201 would be added to accompany the
current references to 2 CFR part 200
(OMB’s Uniform Administrative
Requirements, Cost Principles, and
Audit Requirements for Federal
Awards) to reflect that part 1201
addresses DOT’s adoption and
implementation of part 200. This
reference is made in similar provisions
throughout the proposed regulatory text.
Language would be added in paragraph
(c)(2) to clarify circumstances when a
waiver of the State share may be
granted.
§ 350.225 What MOE must a State
maintain to qualify for MCSAP funds?
Proposed § 350.225 is derived, in part,
from existing § 350.301. Language
would be added to reflect an additional
maintenance of effort baseline
PO 00000
Frm 00013
Fmt 4701
Sfmt 4702
44173
calculation option allowed under
section 5101(f) of the FAST Act, as a
one-time adjustment to the maintenance
of effort permitted under section 5107 of
the Act. Furthermore, a 120-day time
period would be established for the
Agency to evaluate requests for the
maintenance of effort waivers. Finally, a
provision would be added authorizing
permanent adjustments after fiscal year
2020, reducing a State’s maintenance of
effort requirement, provided that new
information was produced that was
unavailable during fiscal year 2020.
§ 350.227 What activities are eligible
for reimbursement under MCSAP?
Proposed § 350.227 would be
generally the same as existing § 350.309
substantively, but would reflect the
proposed expanded national program
elements and changes to the MCSAP
allocation formula.
§ 350.229 What specific costs are
eligible for reimbursement under
MCSAP?
Proposed § 350.229 is derived from
existing §§ 350.311, 350.201(cc), and
350.341(h)(3). The list of reimbursable
items in existing § 350.311 would be
eliminated as unnecessary in light of the
reference to the MCSAP application
memorandum and title 2 of the CFR.
Proposed paragraph (c)(2) would clarify
that a State may not use MCSAP funds
for the creation or maintenance of its
own State registry of medical examiners.
§ 350.231 What are the consequences
for failure to meet MCSAP conditions?
Proposed § 350.231 would not be
substantively changed from existing
§ 350.215, but would be modified for
clarity.
C. Subpart C—MCSAP Required
Compatibility Review
Proposed subpart C would include
information related to the MCSAPrequired FMCSR and HMR
compatibility review and variances
available to States participating in
MCSAP.
§ 350.301
subpart?
What is the purpose of this
Proposed § 350.301 is derived, in part,
from existing § 355.1. This proposed
section would add an introductory
paragraph for clarity and paragraph (d)
to address the process for requesting
exemptions for intrastate commerce.
§ 350.303 How does a State ensure
compatibility?
Proposed § 350.303 is derived from
existing §§ 350.331, 350.333, 355.21,
355.23, 355.25, and, in part, Appendix
E:\FR\FM\22AUP3.SGM
22AUP3
44174
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
A of part 355. It would consolidate the
existing regulations to reduce
redundancies. In proposed paragraph
(c), language would be added to clarify
that a review for compatibility must
accompany any new or amended laws
submitted to FMCSA in accordance to
preferred practice. Proposed
§ 350.303(d) is revised to closer track
the applicable statutory provision, 49
U.S.C. 31141. Proposed § 350.303(g)(2),
addressing the opportunity for an
administrative hearing, would be added
to reflect a requirement under 49 U.S.C.
31141(d)(2). Language determined to be
obsolete would be eliminated.
to reflect the Innovative Technology
Deployment Program.
§ 350.305 What specific variances from
the FMCSRs are allowed for State laws
and regulations and not subject to
Federal jurisdiction?
§ 350.407 How and when does an
eligible entity apply for High Priority
Program funds?
Proposed § 350.305 is derived from
existing §§ 350.341 and 350.345.
Language would be added in paragraph
(b)(2) to clarify that the grandfathering
of State exemptions issued before April
1988 only applies if the scope of the
original exemption has not changed.
Language determined to be obsolete
would be eliminated, including
§ 350.341(g) that addresses grandfather
clauses.
Proposed § 350.307 is derived, in part,
from existing § 350.343. Existing
paragraph (j) would be removed from
this section, given that it has no bearing
on safety.
§ 350.309 What are the consequences
if a State has provisions that are not
compatible?
Proposed § 350.309 is derived from
existing §§ 350.335 and 355.25(a). The
reference to ‘‘interstate’’ commerce in
§ 355.25(a) would be eliminated as
inconsistent with the MCSAP
requirements.
D. Subpart D—High Priority Program
The Agency proposes to add a new
subpart D, describing the High Priority
Program.
What is the High Priority
Proposed § 350.401 is derived from
existing §§ 350.101(b) and 350.107(b).
§ 350.403 What are the High Priority
Program objectives?
Proposed § 350.403 is derived from
existing § 350.110. It would reorganize
existing § 350.110 and add an objective
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
Proposed § 350.405 is derived from
existing § 350.203 and would clarify
that all applicants must comply with the
High Priority Program Notice of
Funding Opportunity (NOFO). The
reference to a State’s obligation to
provide a match of up to 15 percent
under existing § 350.203(b)(5) would be
eliminated as unnecessary in light of
proposed § 350.413(a).
Proposed § 350.407 would not be
substantively changed from existing
§ 350.206, but would be modified for
clarity.
§ 350.409 What response will an
applicant receive under the High
Priority Program?
Proposed § 350.409 would not be
substantively changed from existing
§ 350.208, but would be modified for
clarity.
§ 350.411 How long are High Priority
Program funds available to a recipient?
§ 350.307 How may a State obtain a
new exemption for State laws and
regulations for a specific industry
involved in intrastate commerce?
§ 350.401
Program?
§ 350.405 What conditions must an
applicant meet to qualify for High
Priority Program funds?
Proposed § 350.411 would not be
substantively changed from existing
§ 350.308, but would be modified for
clarity.
§ 350.413 What are the Federal and
recipient shares of costs incurred under
the High Priority Program?
Proposed § 350.413 is derived from
existing § 350.303. Language would be
added to clarify circumstances when a
recipient share of costs waiver may be
granted.
§ 350.415 What types of activities and
projects are eligible for reimbursement
under the High Priority Program?
Proposed § 350.415 is derived from
§ 350.310. It would cross-reference
proposed § 350.403 for the High Priority
Program objectives, rather than listing
all eligible activities, for brevity.
§ 350.417 What specific costs are
eligible for reimbursement under the
High Priority Program?
Proposed § 350.417 is derived, in part,
from existing § 350.311. The list of
reimbursable items in existing § 350.311
would be eliminated as unnecessary in
light of the reference to the NOFO and
title 2 of the CFR. Proposed paragraph
(b)(2) would be added to clarify that a
State may not use High Priority Program
PO 00000
Frm 00014
Fmt 4701
Sfmt 4702
funds for the creation or maintenance of
its own State registry of medical
examiners.
E. Miscellaneous
The term ‘‘tolerance guidelines’’ in
existing § 350.339 is no longer being
used; therefore; the section would be
removed. This concept, addressing
variances and exemptions that States
may permit for motor carriers, CMV
drivers, and CMVs engaged in intrastate
commerce and that are not subject to
Federal jurisdiction, is addressed under
proposed §§ 350.305 and 350.307.
Existing § 350.210, discussing how an
applicant demonstrates that it satisfies
the conditions for High Priority Program
funding, would be deleted as
unnecessary in light of proposed
§ 350.405.
Part 355 of title 49 of the CFR
(Compatibility of State Laws and
Regulations Affecting Interstate Motor
Carrier Operations) would be removed
and reserved. Substantive provisions of
continued effect would be incorporated
into this proposed rule. Remaining
provisions of part 355, including the
Appendix, would be eliminated. Part
388 (Cooperative Agreements with
States) would be removed and reserved.
IX. Regulatory Analyses
A. Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O.
13563 (Improving Regulation and
Regulatory Review), and DOT
Regulatory Policies and Procedures
FMCSA performed an analysis of the
impacts of the proposed rule and
determined it is a significant regulatory
action under section 3(f) of E.O. 12866,
Regulatory Planning and Review (58 FR
51735, October 4, 1993), as
supplemented by E.O. 13563, Improving
Regulation and Regulatory Review (76
FR 3821, January 21, 2011). Therefore,
the proposed rule requires an
assessment of potential costs and
benefits under section 6(a)(3) of that
Order. Accordingly, OMB has reviewed
it under that Order. It is also significant
within the meaning of DOT regulatory
policies and procedures because the
Agency expects there will be substantial
public interest in this rulemaking (DOT
Order 2100.6 dated December 20, 2018).
E.O. 12866 directs each agency to
identify the problem it intends to
address, as well as the significance of
that problem.10 OMB Circular A–4 11
10 Executive Office of the President. Executive
Order 12866 of September 30, 1993. Regulatory
Planning and Review. 58 FR 51735–51744. October
4, 1993. Page 51735.
11 Office of Management and Budget (OMB).
Circular A–4. Regulatory Analysis. September 17,
2003.
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
and the accompanying document
‘‘Regulatory Impact Analysis: A
Primer’’ 12 provide guidance for how
agencies should implement E.O. 12866,
including guidance on identifying and
describing the problem that the
regulatory action intends to address,
and whether ‘‘the action is intended to
address a market failure or promote
some other goal.’’ 13
The purpose of this regulatory action
is to amend and reorganize 49 CFR part
350, including adding relevant sections
that are currently located in part 355.
Certain regulations are no longer
necessary or are redundant. Moreover,
the FAST Act required FMCSA to
implement a multi-year CVSP with
annual updates for States applying for
MCSAP funds and to provide a new
MCSAP allocation formula. The
proposed MCSAP formula would help
the government to operate more
efficiently by establishing a reallocation
of grant funds based on changes in
safety factors.
As explained elsewhere in this
NPRM, this rule proposes a new MCSAP
allocation formula to replace the current
formula that has been in use for more
than a decade with little modification.
The proposed MCSAP allocation
formula would make several
improvements over the current formula.
The proposed formula was constructed
based on a careful statistical analysis of
the relationship between numerous
highway safety variables and crashes
(fatal and non-fatal). While this analysis
revealed that several of the existing
formula factors (e.g., population and
special fuel consumption) remain highly
correlated with crashes, newer data
(carrier registration and highway miles)
are available to more closely link the
allocation of funding to safety risk.
The new formula also proposes
changes that go beyond modifications to
just the calculation methodology. First,
the proposed formula discontinues the
use of Incentive funds. Instead, the
allocation of funds is based primarily on
the calculation of the applicable formula
factors. Further, mitigation measures are
employed to ensure that State funding
levels do not substantially fluctuate
from year to year. Specifically, a State
may not have a decrease of more than
3 percent, or an increase of more than
5 percent, from the prior year’s share of
44175
MCSAP funding.14 This helps the State
ensure a degree of predictability to aid
in budget planning while still allowing
for fair allocation of funds.
The proposed MCSAP allocation
formula would result in a reallocation of
grant funding that would be considered
a transfer payment, in that it would not
change the total amount of funds
distributed. In accordance with OMB
guidance on conducting regulatory
analysis (as discussed in OMB Circular
A–4, ‘‘Regulatory Analysis’’), transfer
payments within the U.S. are not
included in the estimate of the costs and
benefits of rulemakings. Thus, FMCSA
does not include transfers resulting from
the proposed changes to the MCSAP
allocation formula in its estimate of the
costs and benefits of the proposed rule.
The following table displays the
amounts that States could expect to
receive under both the interim and
proposed formulas in FY 2020, given
certain criteria (i.e., the inclusion of
Oregon and the total amount of
appropriated funds). The table is
provided for informational purposes
and is not a guarantee of a specific
funding level.
ESTIMATED MCSAP FUNDING FORMULA COMPARISON a b
FY 2020 Estimated interim
formula awards
State/territory
Including
Oregon
Alabama ...........................................................................................................
Alaska ..............................................................................................................
American Samoa .............................................................................................
Arizona .............................................................................................................
Arkansas ..........................................................................................................
California ..........................................................................................................
Colorado ..........................................................................................................
Connecticut ......................................................................................................
Delaware ..........................................................................................................
District of Columbia .........................................................................................
Florida ..............................................................................................................
Georgia ............................................................................................................
Guam ...............................................................................................................
Hawaii ..............................................................................................................
Idaho ................................................................................................................
Illinois ...............................................................................................................
Indiana .............................................................................................................
Iowa .................................................................................................................
Kansas .............................................................................................................
Kentucky ..........................................................................................................
Louisiana ..........................................................................................................
Maine ...............................................................................................................
Maryland ..........................................................................................................
Massachusetts .................................................................................................
Michigan ...........................................................................................................
Minnesota ........................................................................................................
Mississippi ........................................................................................................
12 Office of Management and Budget (OMB).
Regulatory Impact Analysis: A Primer.
13 Office of Management and Budget (OMB).
Regulatory Impact Analysis: A Primer. Page 2.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
$5,981,155
1,269,196
350,000
11,234,838
4,371,959
18,590,048
4,906,099
2,393,631
1,251,260
1,092,231
12,706,226
10,223,708
350,000
1,066,679
2,500,201
11,177,027
7,600,938
5,004,354
4,504,320
4,736,164
4,502,334
1,815,663
3,898,791
4,437,614
8,663,352
6,711,732
4,008,984
14 In this respect, the States, the District of
Columbia, and Puerto Rico are treated differently
than the remaining Territories. The U.S. Census
Bureau does not provide annual population
PO 00000
Frm 00015
Fmt 4701
Sfmt 4702
Excluding
Oregon
$6,084,689
1,269,068
350,000
11,332,514
4,448,908
18,587,874
4,994,077
2,434,316
1,250,776
1,091,747
12,704,051
10,394,519
350,000
1,066,422
2,541,685
11,359,365
7,728,822
5,087,635
4,584,021
4,819,511
4,581,061
1,842,792
3,970,778
4,514,021
8,805,741
6,824,363
4,079,776
FY 2020 Estimated MCSAP
formula award
(new formula as proposed by
FMCSA)
Including
Oregon
$5,965,678
1,257,326
350,000
10,804,840
4,138,170
19,145,982
4,950,448
2,527,768
1,166,066
1,118,593
13,102,346
10,443,179
439,941
1,099,298
2,436,607
11,285,176
7,286,679
4,837,215
4,458,505
4,686,676
4,346,759
1,751,636
4,175,980
4,604,630
8,967,604
6,422,249
3,893,741
Excluding
Oregon
$5,965,678
1,257,326
350,000
10,804,840
4,138,170
19,368,217
5,103,801
2,527,768
1,179,601
1,118,593
13,254,430
10,443,179
439,941
1,099,298
2,436,607
11,634,765
7,286,679
4,837,215
4,458,505
4,784,186
4,346,759
1,751,636
4,175,980
4,604,630
9,224,388
6,453,904
3,994,903
estimates for Territories other than Puerto Rico.
Thus, these percentage limitations governing
funding levels do not apply to these Territories.
E:\FR\FM\22AUP3.SGM
22AUP3
44176
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
ESTIMATED MCSAP FUNDING FORMULA COMPARISON a b—Continued
FY 2020 Estimated interim
formula awards
State/territory
Including
Oregon
Missouri ............................................................................................................
Montana ...........................................................................................................
Nebraska ..........................................................................................................
Nevada .............................................................................................................
New Hampshire ...............................................................................................
New Jersey ......................................................................................................
New Mexico .....................................................................................................
New York .........................................................................................................
North Carolina ..................................................................................................
North Dakota ....................................................................................................
Northern Marianas ...........................................................................................
Ohio .................................................................................................................
Oklahoma .........................................................................................................
Oregon .............................................................................................................
Pennsylvania ....................................................................................................
Puerto Rico ......................................................................................................
Rhode Island ....................................................................................................
South Carolina .................................................................................................
South Dakota ...................................................................................................
Tennessee .......................................................................................................
Texas ...............................................................................................................
Utah .................................................................................................................
Vermont ...........................................................................................................
Virgin Islands ...................................................................................................
Virginia .............................................................................................................
Washington ......................................................................................................
West Virginia ....................................................................................................
Wisconsin .........................................................................................................
Wyoming ..........................................................................................................
6,892,605
3,063,123
3,650,919
2,596,460
1,352,053
7,038,352
4,002,101
13,199,642
8,730,173
2,889,717
350,000
10,070,415
5,927,263
3,745,475
10,038,363
1,172,803
1,356,289
4,824,547
2,359,346
6,630,299
30,695,205
3,093,422
1,212,839
350,000
6,760,878
6,566,316
2,297,186
6,439,562
1,415,639
Total ..........................................................................................................
304,069,500
Excluding
Oregon
7,014,924
3,102,581
3,709,539
2,643,932
1,351,569
7,140,767
4,058,337
13,412,776
8,880,140
2,934,189
350,000
10,250,889
6,025,865
FY 2020 Estimated MCSAP
formula award
(new formula as proposed by
FMCSA)
Including
Oregon
Excluding
Oregon
6,975,820
2,994,454
3,626,881
2,664,056
1,384,743
7,158,824
4,107,636
13,226,416
9,249,962
2,696,955
350,000
10,046,336
5,769,781
10,214,498
1,195,818
1,355,805
4,910,771
2,400,857
6,743,955
30,693,031
3,147,010
1,212,647
350,000
6,879,407
6,664,872
2,335,720
6,548,726
1,442,339
6,844,323
2,994,454
3,626,881
2,584,009
1,343,600
6,943,724
4,107,636
12,842,509
8,972,029
2,696,955
350,000
9,781,884
5,769,781
3,946,430
10,424,935
1,166,066
1,300,175
4,796,236
2,253,064
6,489,424
31,217,150
3,085,281
1,298,730
350,000
6,895,938
6,457,545
2,171,592
6,188,280
1,507,775
304,069,500
304,069,500
304,069,500
10,424,935
1,179,601
1,300,175
4,944,812
2,253,064
6,683,303
31,579,500
3,085,281
1,298,730
350,000
7,109,558
6,457,545
2,238,863
6,363,493
1,507,775
a Estimated
calculations for FY 2020 are shown both with and without the State of Oregon. Note that Oregon did not participate in FY 2019,
but it may re-enter the program in the future.
b Calculation of funds for the proposed formula was made after setting aside 11 percent for the Border Component and 0.49 percent for the
Territory Component of available MCSAP funds, and applying the hold-harmless and cap provisions as explained above.
FMCSA proposes to clarify a State’s
obligation to cooperate in the
enforcement of hazardous materials
safety permits for interstate and
intrastate carriers as required under
subpart E of 49 CFR part 385 to
transport certain hazardous materials.
The proposed rule would ensure that all
States would document compliance
with hazardous materials safety permit
requirements in the course of
inspections that States conduct. State
officials are already receiving training
on subpart E of part 385, and FMCSA
estimates that no new costs or benefits
would result from this clarification.
This rule proposes to eliminate the
exception to adopt §§ 171.15 and 171.16
in the HMRs by States participating in
MCSAP. These provisions require
incident reporting of certain hazardous
materials incidents. This proposal
would allow States to ensure
compliance with these provisions
during the course of investigations, but
would not require States to conduct
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
investigations. Additionally, eliminating
the exception would not expand the
incident reporting burden. State officials
are already receiving investigation
training, which would include training
on enforcement of §§ 171.15 and 171.16.
Therefore, FMCSA estimates that no
new costs or benefits would result from
this elimination.
The proposed rule would require
States to use CVSPs in accordance with
the FAST Act. The rule would provide
direction to States on how and when to
submit CVSPs, which would be on 3year cycles. Under the current
regulations, States must submit lengthy
annual CVSP applications to receive
MCSAP funding. The proposed rule
would require States to submit robust 3year CVSP applications for the first year,
with annual updates for the second and
third years. Specifically, for the first
year of the CVSP, States would submit
information regarding performance
goals, past performance, and other
documents traditionally provided in an
PO 00000
Frm 00016
Fmt 4701
Sfmt 4702
annual CVSP, as well as a budget for the
initial year. For the second and third
years of the CVSP, States would submit
an annual update that includes a budget
for the applicable fiscal year, changes to
the CVSP, and other documents
required on an annual basis. As of FY
2020, all 55 States have transitioned
voluntarily to 3-year CVSPs, and thus,
the Agency does not estimate an impact
from this proposed change.
When considering alternatives to the
proposed requirements, FMCSA
considered requiring a CVSP cycle other
than the proposed 3-year CVSP cycle. In
a Federal Register notice published
October 27, 2016, FMCSA asked 14
questions that would assist the Agency
in developing an information
technology system form and procedures
for submission of a multi-year plan.
Regarding questions on the length of the
multi-year plan, responses to this
question varied with some States
indicating that they are not interested in
a multi-year plan and some States
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
expressing interest in a 5-year plan.
However, the largest number of States
recommended a 3-year period.
Regarding the accuracy of available
data, all States confidently reported that
they can provide complete and accurate
data, with many States recommending 2
or 3 years for the multi-year plan. These
States advised that their responses were
specific to their recommended
timeframes. These responses confirmed
FMCSA’s expectations. Section 5101 of
the FAST Act requires the Secretary to
prescribe procedures for a State to
submit a multi-year CVSP with annual
updates for MCSAP grants. The FAST
Act provided discretion to FMCSA in
choosing the length of the CVSP cycle.
FMCSA is proposing to require a CVSP
with a 3-year plan cycle. The 3-year
CVSP proposal is informed by
comments received to the October 27,
2016, Federal Register notice (81 FR
74862), the working group’s
recommendations, and necessary eCVSP
tool modifications. Furthermore,
FMCSA elected to test the 3-year CVSP
with volunteers for the FY 2018 CVSP
and receive feedback. FMCSA
developed the 3-year CVSP proposal
using the experience and feedback of
the FY 2018 3-year CVSP users. As
such, FMCSA believes that the 3-year
CVSP would be the most advantageous
for FMCSA and the CVSP users and is
no longer considering a time-frame
other than 3 years for the CVSP (see 83
FR 691, 692, January 5, 2018).
B. E.O. 13771 (Reducing Regulation and
Controlling Regulatory Costs)
This proposed rule is neither
expected to be an E.O. 13771 regulatory
action nor an E.O. 13771 deregulatory
action because there would be no cost
impacts resulting from the rule.15
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
of 1980, as amended by the Small
Business Regulatory Enforcement
Fairness Act of 1996 (SBREFA) (Pub. L.
104–121, 110 Stat. 857; 5 U.S.C. 601 et
seq.), requires Federal agencies to
consider the impact of their regulatory
proposals on small entities, analyze
effective alternatives that minimize
small entity impacts, and make their
analyses available for public comment.
The term ‘‘small entities’’ means small
businesses and not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
15 Executive Office of the President. Executive
Order 13771 of January 30, 2017. Reducing
Regulation and Controlling Regulatory Costs. 82 FR
9339–9341. February 3, 2017.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
governmental jurisdictions with
populations under 50,000 (5 U.S.C.
601(6)). Accordingly, DOT policy
requires an analysis of the impact of all
regulations on small entities, and
mandates that agencies strive to lessen
any adverse effects on these entities.
Section 605 of the RFA allows an
Agency to certify a rule, in lieu of
preparing an analysis, if the rulemaking
is not expected to have a significant
economic impact on a substantial
number of small entities.
This proposed rule primarily affects
States applying for MCSAP funds due to
the new MCSAP allocation formula
governing distribution of MCSAP funds
and the requirement to submit CVSPs
on a 3-year cycle. Under the standards
of the RFA, as amended, States are not
considered small entities because they
do not meet the definition of a small
entity in Section 601 of the RFA.
Specifically, States are not considered
small governmental jurisdictions under
Section 601(5) of the RFA, both because
State government is not included among
the various levels of government listed
in Section 601(5), and because, even if
this were the case, no State, including
the District of Columbia, has a
population of less than 50,000, which is
the criterion for a governmental
jurisdiction to be considered small
under Section 601(5) of the RFA.
Although States would not be
considered small entities, there is a
possibility that other entities that could
be considered small may be grant
program applicants. These other entities
include local governments, Federallyrecognized Indian tribes, other political
jurisdictions, universities, non-profit
organizations, and other persons who,
although not eligible for MCSAP funds,
which are designated for States, would
be eligible for funding under the High
Priority Program. However, the
estimated impact of the proposed rule
results from changes to MCSAP, which
do not affect the High Priority Program
applicants. As such, FMCSA does not
estimate that these non-State entities
would experience economic impacts as
a result of the proposed rule.
In summary, this proposed rule would
only impact States, which are not small
entities. The proposed rule thus does
not have a significant economic impact
on the regulated entities, and does not
significantly impact a substantial
number of small entities. Accordingly, I
certify that the action does not have a
significant economic impact on a
substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of
the SBREFA, FMCSA wants to assist
PO 00000
Frm 00017
Fmt 4701
Sfmt 4702
44177
small entities in understanding this
proposed rule so that they can better
evaluate its effects on themselves and
participate in the rulemaking initiative.
If the proposed rule would affect your
small business, organization, or
governmental jurisdiction and you have
questions concerning its provisions or
options for compliance, please consult
the FMCSA point of contact, Jack
Kostelnik, listed in the FOR FURTHER
INFORMATION CONTACT section of this
proposed rule.
Small businesses may send comments
on the actions of Federal employees
who enforce or otherwise determine
compliance with Federal regulations to
the Small Business Administration’s
Small Business and Agriculture
Regulatory Enforcement Ombudsman
and the Regional Small Business
Regulatory Fairness Boards. The
Ombudsman evaluates these actions
annually and rates each agency’s
responsiveness to small business. If you
wish to comment on actions by
employees of FMCSA, call 1–888–REG–
FAIR (1–888–734–3247). DOT has a
policy regarding the rights of small
entities to regulatory enforcement
fairness and an explicit policy against
retaliation for exercising these rights.
E. Unfunded Mandates Reform Act of
1995
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector, of
$161 million (which is the value
equivalent of $100,000,000 in 1995,
adjusted for inflation to 2017 levels) or
more in any 1 year. Though this
proposed rule would not result in such
an expenditure, the Agency does
discuss the effects of this rule elsewhere
in this preamble.
F. Paperwork Reduction Act
This proposed rule would call for no
new collection of information under the
Paperwork Reduction Act of 1995 (44
U.S.C. 3501–3520). The Agency notes
that MCSAP applications are not subject
to OMB’s standard application
requirements pursuant to 2 CFR
1201.206. Entities apply for the
Agency’s other financial assistance
programs using standardized forms
found in grants.gov, which account for
any information collection burden and
are not impacted by this proposed rule.
E:\FR\FM\22AUP3.SGM
22AUP3
44178
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
G. E.O. 13132 (Federalism)
A rule has implications for federalism
under section 1(a) of E.O.13132 if it has
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’ FMCSA
determined that this proposal would not
have substantial direct costs on or for
States, nor would it limit the
policymaking discretion of States.
Nothing in this document preempts any
State law or regulation. Therefore, this
rule does not have sufficient federalism
implications to warrant the preparation
of a Federalism Impact Statement.
H. E.O. 12988 (Civil Justice Reform)
This proposed rule meets applicable
standards in sections 3(a) and 3(b)(2) of
E.O. 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
I. E.O. 13045 (Protection of Children)
E.O. 13045, Protection of Children
from Environmental Health Risks and
Safety Risks (62 FR 19885, April 23,
1997), requires agencies issuing
‘‘economically significant’’ rules, if the
regulation also concerns an
environmental health or safety risk that
an agency has reason to believe may
disproportionately affect children, to
include an evaluation of the regulation’s
environmental health and safety effects
on children. The Agency determined
this proposed rule is not economically
significant. Therefore, no analysis of the
impacts on children is required. In any
event, the Agency does not anticipate
that this regulatory action could in any
respect present an environmental or
safety risk that could disproportionately
affect children.
J. E.O. 12630 (Taking of Private
Property)
FMCSA reviewed this proposed rule
in accordance with E.O. 12630,
Governmental Actions and Interference
with Constitutionally Protected Property
Rights, and has determined it will not
effect a taking of private property or
otherwise have taking implications.
K. Privacy
Section 522 of title I of division H of
the Consolidated Appropriations Act,
2005, enacted December 8, 2004 (Pub. L.
108–447, 118 Stat. 2809, 3268, note
following 5 U.S.C. 552a), requires the
Agency to conduct a Privacy Impact
Assessment of a regulation that will
affect the privacy of individuals. The
assessment considers impacts of the rule
on the privacy of information in an
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
identifiable form and related matters.
The FMCSA Privacy Officer has
evaluated the risks and effects the
rulemaking might have on collecting,
storing, and sharing personally
identifiable information and has
evaluated protections and alternative
information handling processes in
developing the rule to mitigate potential
privacy risks. FMCSA determined that
this rule does not require the collection
of individual personally identifiable
information.
Additionally, the Agency submitted a
Privacy Threshold Assessment
analyzing the rulemaking to the DOT,
Office of the Secretary’s Privacy Office.
The DOT Privacy Office has determined
that this rulemaking does not create
privacy risk.
The E-Government Act of 2002,
Public Law 107–347, § 208, 116 Stat.
2899, 2921 (Dec. 17, 2002), requires
Federal agencies to conduct a Privacy
Impact Assessment for new or
substantially changed technology that
collects, maintains, or disseminates
information in an identifiable form. No
new or substantially changed
technology would collect, maintain, or
disseminate information because of this
rule.
L. E.O. 12372 (Intergovernmental
Review)
The regulations implementing E.O.
12372 regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
M. E.O. 13211 (Energy Supply,
Distribution, or Use)
FMCSA has analyzed this proposed
rule under E.O. 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. The Agency has
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. Therefore, it does not require a
Statement of Energy Effects under E.O.
13211.
N. E.O. 13783 (Promoting Energy
Independence and Economic Growth)
E.O. 13783 directs executive
departments and agencies to review
existing regulations that potentially
burden the development or use of
domestically produced energy
resources, and to appropriately suspend,
revise, or rescind those that unduly
burden the development of domestic
energy resources. In accordance with
E.O. 13783, DOT prepared and
submitted a report to the Director of
PO 00000
Frm 00018
Fmt 4701
Sfmt 4702
OMB that provides specific
recommendations that, to the extent
permitted by law, could alleviate or
eliminate aspects of agency action that
burden domestic energy production.
This proposed rule has not been
identified by DOT under E.O. 13783 as
potentially alleviating unnecessary
burdens on domestic energy production.
O. E.O. 13175 (Indian Tribal
Governments)
This proposed rule does not have
tribal implications under E.O. 13175,
Consultation and Coordination with
Indian Tribal Governments, because it
does not have a substantial direct effect
on one or more Indian tribes, on the
relationship between the Federal
government and Indian tribes, or on the
distribution of power and
responsibilities between the Federal
government and Indian tribes.
P. National Technology Transfer and
Advancement Act (Technical
Standards)
The National Technology Transfer
and Advancement Act (note following
15 U.S.C. 272) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through OMB, with
an explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards (e.g.,
specifications of materials, performance,
design, or operation; test methods;
sampling procedures; and related
management systems practices) are
standards that are developed or adopted
by voluntary consensus standards
bodies. This rule does not use technical
standards. Therefore, FMCSA did not
consider the use of voluntary consensus
standards.
Q. National Environmental Policy Act of
1969
FMCSA analyzed this proposed rule
for the purpose of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and determined this
action is categorically excluded from
further analysis and documentation in
an environmental assessment or
environmental impact statement under
FMCSA Order 5610.1 (69 FR 9680,
March 1, 2004), Appendix 2, paragraphs
6.f. and 6.g. The Categorical Exclusions
(CEs) in paragraphs 6.f. and 6.g. cover
regulations implementing activities,
whether performed by FMCSA or by
States pursuant to MCSAP, and
procedures to promote adoption and
enforcement of State laws and
regulations pertaining to CMV safety
that are compatible with the FMCSRs
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
and HMRs, and procedures to provide
guidelines for a continuous regulatory
review of State laws and regulations.
The proposed requirements in this rule
are covered by these CEs and the
proposed rule would not have any effect
on the quality of the environment.
List of Subjects
49 CFR Part 350
Grant programs-transportation,
Highway safety, Motor carriers, Motor
vehicle safety, Reporting and
recordkeeping requirements.
49 CFR Part 355
Highway safety, Intergovernmental
relations, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping
requirements.
49 CFR Part 388
Administrative practice and
procedure, Highway safety, Motor
carriers, Motor vehicle safety.
In consideration of the foregoing,
FMCSA proposes to amend 49 CFR
Chapter III as follows.
■ 1. Revise part 350 to read as follows:
PART 350—MOTOR CARRIER SAFETY
ASSISTANCE PROGRAM (MCSAP)
AND HIGH PRIORITY PROGRAM
Subpart A—General
Sec.
350.101 What is the purpose of this part?
350.103 When do the financial assistance
program changes take effect?
350.105 What definitions are used in this
part?
Subpart B—Motor Carrier Safety Assistance
Program Administration
350.201 What is MCSAP?
350.203 What are the national MCSAP
elements?
350.205 What entities are eligible for
funding under MCSAP?
350.207 What conditions must a State meet
to qualify for MCSAP funds?
350.209 How and when does a State apply
for MCSAP funds using a CVSP?
350.211 What must a State include for the
first year of the CVSP?
350.213 What must a State include for the
second and third years of the CVSP?
350.215 What response does a State receive
to its CVSP or annual update?
350.217 How are MCSAP funds allocated?
350.219 How are MCSAP funds awarded
under a continuing resolution
appropriations act or an extension of
FMCSA’s authorization?
350.221 How long are MCSAP funds
available to a State?
350.223 What are the Federal and State
shares of costs incurred under MCSAP?
350.225 What MOE must a State maintain
to qualify for MCSAP funds?
350.227 What activities are eligible for
reimbursement under MCSAP?
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
350.229 What specific costs are eligible for
reimbursement under MCSAP?
350.231 What are the consequences for
failure to meet MCSAP conditions?
Subpart C—MCSAP Required Compatibility
Review
350.301 What is the purpose of this
subpart?
350.303 How does a State ensure
compatibility?
350.305 What specific variances from the
FMCSRs are allowed for State laws and
regulations and not subject to Federal
jurisdiction?
350.307 How may a State obtain a new
exemption for State laws and regulations
for a specific industry involved in
intrastate commerce?
350.309 What are the consequences if a
State has provisions that are not
compatible?
Subpart D—High Priority Program
350.401 What is the High Priority Program?
350.403 What are the High Priority Program
objectives?
350.405 What conditions must an applicant
meet to qualify for High Priority Program
funds?
350.407 How and when does an eligible
entity apply for High Priority Program
funds?
350.409 What response will an applicant
receive under the High Priority Program?
350.411 How long are High Priority
Program funds available to a recipient?
350.413 What are the Federal and recipient
shares of costs incurred under the High
Priority Program?
350.415 What types of activities and
projects are eligible for reimbursement
under the High Priority Program?
350.417 What specific costs are eligible for
reimbursement under the High Priority
Program?
Authority: 49 U.S.C. 13902, 31101–31104,
31108, 31136, 31141, 31161, 31310–31311,
31502; and 49 CFR 1.87.
Subpart A—General
§ 350.101
What is the purpose of this part?
The purpose of this part is to provide
direction for entities seeking MCSAP or
High Priority Program funding to
improve motor carrier, CMV, and driver
safety.
§ 350.103 When do the financial
assistance program changes take effect?
Unless otherwise provided, the
changes to the FMCSA financial
assistance programs under this part take
effect for fiscal year 2020, beginning
October 1, 2019.
§ 350.105
part?
What definitions are used in this
As used in this part:
Administrative takedown funds
means funds FMCSA deducts each
fiscal year from the amounts made
available for MCSAP and the High
PO 00000
Frm 00019
Fmt 4701
Sfmt 4702
44179
Priority Program for expenses incurred
by FMCSA for training State and local
government employees and for the
administration of the programs.
Administrator means the
administrator of FMCSA.
Border State means a State that shares
a land border with Canada or Mexico.
Commercial motor vehicle (CMV)
means a motor vehicle that has any of
the following characteristics:
(1) A gross vehicle weight (GVW),
gross vehicle weight rating (GVWR),
gross combination weight (GCW), or
gross combination weight rating
(GCWR) of 4,537 kilograms (10,001
pounds) or more.
(2) Regardless of weight, is designed
or used to transport 16 or more
passengers, including driver.
(3) Regardless of weight, is used in the
transportation of hazardous materials
and is required to be placarded pursuant
to 49 CFR part 172, subpart F.
Commercial vehicle safety plan
(CVSP) means a State’s CMV safety
objectives, strategies, activities, and
performance measures that cover a 3year period, including the submission of
the CVSP for the first year and annual
updates thereto for the second and third
years.
Compatible or compatibility means
State safety laws and regulations,
standards, and orders:
(1) As applicable to interstate
commerce, that are identical to, or have
the same effect as, the FMCSRs;
(2) As applicable to intrastate
commerce, that:
(i) Are identical to, or have the same
effect as, the FMCSRs; or
(ii) Fall within the limited variances
from the FMCSRs allowed under
subpart C of this part; and
(3) As applicable to interstate and
intrastate commerce involving the
movement of hazardous materials, that
are identical to the HMRs.
FMCSA means the Federal Motor
Carrier Safety Administration of the
United States Department of
Transportation.
FMCSRs means:
(1) The Federal Motor Carrier Safety
Regulations under parts 390, 391, 392,
393, 395, 396, and 397 of this
subchapter; and
(2) Applicable standards and orders
issued under these provisions.
HMRs means:
(1) The Federal Hazardous Materials
Regulations under subparts F and G of
part 107, and parts 171, 172, 173, 177,
178, and 180 of this title; and
(2) Applicable standards and orders
issued under these provisions.
High Priority Program funds means
total funds available for the High
E:\FR\FM\22AUP3.SGM
22AUP3
44180
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
Priority Program, less the administrative
takedown funds.
Investigation means an examination
of motor carrier operations and records,
such as drivers’ hours of service,
maintenance and inspection, driver
qualification, commercial driver’s
license requirements, financial
responsibility, crashes, hazardous
materials, and other safety and
transportation records, to determine
whether a motor carrier meets safety
standards, including the safety fitness
standard under § 385.5 of this chapter
or, for intrastate motor carrier
operations, the applicable State
standard.
Lead State Agency means the State
CMV safety agency responsible for
administering the CVSP throughout a
State.
Maintenance of effort (MOE) means
the level of a State’s financial
expenditures, other than the required
match, the Lead State Agency is
required to expend each fiscal year in
accordance with § 350.225.
Motor carrier means a for-hire motor
carrier or private motor carrier. The
term includes a motor carrier’s agents,
officers, and representatives as well as
employees responsible for hiring,
supervising, training, assigning, or
dispatching a driver or an employee
concerned with the installation,
inspection, and maintenance of motor
vehicle equipment or accessories.
Motor Carrier Safety Assistance
Program (MCSAP) funds means total
formula grant funds available for
MCSAP, less the administrative
takedown funds.
New entrant safety audit means the
safety audit of an interstate motor
carrier that is required as a condition of
MCSAP eligibility under
§ 350.207(a)(26), and, at the State’s
discretion, an intrastate new entrant
motor carrier under 49 U.S.C. 31144(g)
that is conducted in accordance with
subpart D of part 385 of this chapter.
North American Standard Inspection
means the procedures used by certified
safety inspectors to conduct various
levels of safety inspections of the
vehicle or driver.
State means a State of the United
States, the District of Columbia,
American Samoa, the Commonwealth of
the Northern Mariana Islands, the
Commonwealth of Puerto Rico, Guam,
and the Virgin Islands.
Traffic enforcement means the
stopping of vehicles operating on
highways for moving violations of State,
tribal, or local motor vehicle or traffic
laws by State, tribal, or local officials.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
Subpart B—Motor Carrier Safety
Assistance Program Administration
§ 350.205 What entities are eligible for
funding under MCSAP?
§ 350.201
Only States are eligible to receive
MCSAP grants directly from FMCSA.
What is MCSAP?
(a) General. MCSAP is a Federal
formula grant program that provides
financial assistance to States to reduce
the number and severity of crashes, and
resulting injuries and fatalities,
involving CMVs and to promote the safe
transportation of passengers and
hazardous materials. The goal of
MCSAP is to reduce CMV-involved
crashes, fatalities, and injuries through
consistent, uniform, and effective CMV
safety programs that include driver or
vehicle inspections, traffic enforcement,
carrier investigations, new entrant safety
audits, border enforcement, safety data
improvements, and Performance and
Registration Information Systems
Management (PRISM).
(b) MCSAP requirements. MCSAP
requires States to:
(1) Make targeted investments to
promote safe CMV transportation,
including transportation of passengers
and hazardous materials;
(2) Invest in activities likely to
generate maximum reductions in the
number and severity of CMV crashes
and in fatalities resulting from CMV
crashes;
(3) Adopt and enforce effective motor
carrier, CMV, and driver safety
regulations and practices consistent
with Federal requirements; and
(4) Assess and improve State-wide
performance of motor carrier, CMV, and
driver safety by setting program goals
and meeting performance standards,
measurements, and benchmarks.
(c) State participation. MCSAP sets
conditions of participation for States
and promotes compatibility in the
adoption and uniform enforcement of
safety laws and regulations, standards,
and orders.
§ 350.203 What are the national MCSAP
elements?
The national MCSAP elements are:
(a) Driver inspections;
(b) Vehicle inspections;
(c) Traffic enforcement;
(d) Investigations;
(e) New entrant safety audits;
(f) CMV safety programs focusing on
international commerce in border
States;
(g) Beginning October 1, 2020, full
participation in PRISM or an acceptable
alternative as determined by the
Administrator;
(h) Accurate, complete, timely, and
corrected data;
(i) Public education and awareness;
and
(j) Other elements that may be
prescribed by the Administrator.
PO 00000
Frm 00020
Fmt 4701
Sfmt 4702
§ 350.207 What conditions must a State
meet to qualify for MCSAP funds?
(a) General. To qualify for MCSAP
funds, a State must:
(1) Designate a Lead State Agency;
(2) Assume responsibility for
improving motor carrier safety by
adopting and enforcing compatible
safety laws and regulations, standards,
and orders, except as may be
determined by the Administrator to be
inapplicable to a State enforcement
program;
(3) Ensure that the State will
cooperate in the enforcement of
financial responsibility requirements
under part 387 of this chapter;
(4) Provide that the State will enforce
the registration requirements under 49
U.S.C. 13902 and 31134 by prohibiting
the operation of any vehicle discovered
to be operated by a motor carrier
without a registration issued under
those sections or operated beyond the
scope of the motor carrier’s registration;
(5) Provide a right of entry (or other
method a State may use that is adequate
to obtain necessary information) and
inspection to carry out the CVSP;
(6) Give satisfactory assurances in its
CVSP that the Lead State Agency has
the legal authority, resources, and
qualified personnel necessary to enforce
compatible safety laws and regulations,
standards, and orders;
(7) Provide satisfactory assurances
that the State will undertake efforts that
will emphasize and improve
enforcement of State and local traffic
laws and regulations related to CMV
safety;
(8) Give satisfactory assurances that
the State will devote adequate resources
to the administration of the CVSP
throughout the State, including the
enforcement of compatible safety laws
and regulations, standards, and orders;
(9) Provide that the MOE of the Lead
State Agency will be maintained each
fiscal year in accordance with § 350.225;
(10) Provide that all reports required
in the CVSP be available to FMCSA
upon request, meet the reporting
requirements, and use the forms for
recordkeeping, inspections, and
investigations that FMCSA prescribes;
(11) Implement performance-based
activities, including deployment and
maintenance of technology, to enhance
the efficiency and effectiveness of CMV
safety programs;
(12) Establish and dedicate sufficient
resources to a program to ensure that
accurate, complete, and timely motor
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
carrier safety data are collected and
reported, and to ensure the State’s
participation in a national motor carrier
safety data correction system prescribed
by FMCSA;
(13) Ensure that the Lead State
Agency will coordinate the CVSP, data
collection, and information systems
with the State highway safety
improvement program under 23 U.S.C.
148(c);
(14) Ensure participation in
information technology and data
systems as required by FMCSA for
jurisdictions receiving MCSAP funding;
(15) Ensure that information is
exchanged with other States in a timely
manner;
(16) Grant maximum reciprocity for
inspections conducted under the North
American Standard Inspection Program
through the use of a nationally accepted
system that allows ready identification
of previously inspected CMVs;
(17) Provide that the State will
conduct comprehensive and highly
visible traffic enforcement and CMV
safety inspection programs in high-risk
locations and corridors;
(18) Ensure that driver or vehicle
inspections will be conducted at
locations that are adequate to protect the
safety of drivers and enforcement
personnel;
(19) Except in the case of an imminent
or obvious safety hazard, ensure that an
inspection of a vehicle transporting
passengers for a motor carrier of
passengers is conducted at a bus station,
terminal, border crossing, maintenance
facility, destination, or other location
where a motor carrier may make a
planned stop (excluding a weigh
station);
(20) Provide satisfactory assurances
that the State will address activities in
support of the national program
elements listed in § 350.203, including
activities:
(i) Aimed at removing impaired CMV
drivers from the highways through
adequate enforcement of regulations on
the use of alcohol and controlled
substances and by ensuring ready
roadside access to alcohol detection and
measuring equipment;
(ii) Aimed at providing training to
MCSAP personnel to recognize drivers
impaired by alcohol or controlled
substances; and
(iii) Related to criminal interdiction,
including human trafficking, when
conducted with an appropriate CMV
inspection and appropriate strategies for
carrying out those interdiction
activities, including interdiction
activities that affect the transportation of
controlled substances (as defined in
section 102 of the Comprehensive Drug
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
Abuse Prevention and Control Act of
1970 (21 U.S.C. 802) and listed in 21
CFR part 1308) by any occupant of a
CMV;
(21) Ensure that detection of criminal
activities and size and weight activities
described in § 350.227(b), if financed
through MCSAP funds, will not
diminish the effectiveness of the
development and implementation of the
programs to improve motor carrier,
CMV, and driver safety;
(22) Ensure consistent, effective, and
reasonable sanctions;
(23) Provide that the State will
include in the training manuals for the
licensing examinations to drive a CMV
and non-CMV information on best
practices for driving safely in the
vicinity of CMVs and non-CMVs;
(24) Require all registrants of CMVs to
demonstrate their knowledge of
applicable FMCSRs, HMRs, or
compatible State laws or regulations,
standards, and orders;
(25) Ensure that the State transmits to
inspectors the notice of each Federal
exemption granted under subpart C of
part 381 and §§ 390.23 and 390.25 of
this subchapter that relieves a person or
class of persons in whole or in part from
compliance with the FMCSRs or HMRs
that has been provided to the State by
FMCSA and identifies the person or
class of persons granted the exemption
and any terms and conditions that apply
to the exemption;
(26) Subject to paragraphs (b) and
(c)(1) of this section, conduct new
entrant safety audits of interstate and, at
the State’s discretion, intrastate new
entrant motor carriers in accordance
with subpart D of part 385;
(27) Subject to paragraph (c)(2) of this
section, beginning October 1, 2020,
participate fully in PRISM by complying
with the conditions for full
participation, or receiving approval
from the Administrator for an
alternative approach for identifying and
immobilizing a motor carrier with
serious safety deficiencies in a manner
that provides an equivalent level of
safety;
(28) Ensure that the State will
cooperate in the enforcement of
hazardous materials safety permits
issued under subpart E of part 385 of
this chapter; and
(29) For border States, conduct a
border CMV safety program focusing on
international commerce that includes
enforcement and related projects, or
forfeit all funds allocated for borderrelated activities.
(b) New entrant safety audits—Use of
third parties. If a State uses a third party
to conduct new entrant safety audits
under paragraph (a)(26) of this section,
PO 00000
Frm 00021
Fmt 4701
Sfmt 4702
44181
the State must verify the quality of the
work and the State remains solely
responsible for the management and
oversight of the audits.
(c) Territories. (1) The new entrant
safety audit requirement under
paragraph (a)(26) does not apply to
American Samoa, the Commonwealth of
the Northern Mariana Islands, the
Commonwealth of Puerto Rico, Guam,
and the Virgin Islands.
(2) The required PRISM participation
date under paragraph (a)(27) of this
section does not apply to American
Samoa, the Commonwealth of the
Northern Mariana Islands, the
Commonwealth of Puerto Rico, Guam,
and the Virgin Islands.
§ 350.209 How and when does a State
apply for MCSAP funds using a CVSP?
(a) MCSAP Application Submission
Format. (1) The CVSP is a 3-year plan.
(2) The first year of the CVSP varies
by State, depending on when the State
implemented the CVSP.
(3) For the first year of the CVSP, the
Lead State Agency must submit a CVSP
projecting programs and projects
covering 3 years and a budget for the
first fiscal year for which the CVSP is
submitted, as explained in § 350.211.
(4) For the second and third years of
the CVSP, the Lead State Agency must
submit an annual update and budget for
that fiscal year and any other needed
adjustments or changes to the CVSP, as
explained in § 350.213.
(b) MCSAP Application Submission
Deadline. (1) The Lead State Agency
must submit the CVSP, or the annual
updates, to FMCSA by the date
prescribed in the MCSAP application
memorandum for the fiscal year.
(2) The Administrator may extend for
a period not exceeding 30 days the
deadline prescribed in the MCSAP
application memorandum for document
submission for good cause.
§ 350.211 What must a State include for
the first year of the CVSP?
(a) General. (1) The first year of the
CVSP must comply with the MCSAP
application memorandum and, at a
minimum, provide a performance-based
program with a general overview section
that includes:
(i) A statement of the Lead State
Agency’s goal or mission; and
(ii) A program summary of the
effectiveness of prior activities in
reducing CMV crashes, injuries, and
fatalities and in improving driver and
motor carrier safety performance.
(2) The program summary must
identify and address safety or
performance problems in the State.
(3) The program summary must use
12-month data periods that are
E:\FR\FM\22AUP3.SGM
22AUP3
44182
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
consistent from year to year. This may
be a calendar year, fiscal year, or any 12month period for which the State’s data
is current.
(4) The program summary must show
trends supported by safety and program
performance data collected over several
years.
(b) National MCSAP elements. (1) The
first year of the CVSP must include a
brief narrative describing how the State
CVSP addresses the national program
elements listed in § 350.203.
(2) The CVSP must address each
national program element even if there
are no planned activities in a program
area.
(c) Resource allocation. The first year
of the CVSP must explain the rationale
for the State’s resource allocation
decisions.
(d) Specific activities. The first year of
the CVSP must have a narrative section
that includes a description of how the
CVSP supports:
(1) Activities aimed at removing
impaired CMV drivers from the
highways through adequate enforcement
of restrictions on the use of alcohol and
controlled substances and by ensuring
ready roadside access to alcohol
detection and measuring equipment;
(2) Activities aimed at providing an
appropriate level of training to MCSAP
personnel to recognize drivers impaired
by alcohol or controlled substances;
(3) Criminal interdiction activities
and appropriate strategies for carrying
out those interdiction activities,
including human trafficking, and
interdiction activities affecting the
transportation of controlled substances
by any occupant of a CMV; and
(4) Activities to enforce registration
requirements and to cooperate in the
enforcement of financial responsibility
requirements under § 392.9a and part
387 of this subchapter.
(e) Performance objectives. The first
year of the CVSP must include
performance objectives, strategies, and
activities stated in quantifiable terms,
that are to be achieved through the
CVSP.
(f) Monitoring. The first year of the
CVSP must include a description of the
State’s method for ongoing monitoring
of the progress of the CVSP.
(g) Budget. The first year of the CVSP
must include a budget for that year that
describes the expenditures for allocable
costs, such as personnel and related
costs, equipment purchases, printing,
information systems costs, and other
eligible costs consistent with § 350.229.
(h) List of MCSAP contacts. The first
year of the CVSP must include a list of
MCSAP contacts.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
(i) Certification. (1) For the first year
of the CVSP, the Lead State Agency
must certify that it has:
(i) Met all the MCSAP conditions in
§ 350.207; and
(ii) Completed the annual review
required by § 350.303 and determined
that the State maintains required
compatibility.
(2) If a State CMV safety law or
regulation, standard, or order is no
longer compatible, the certifying official
must explain the State’s plan to address
the discrepancy.
(3) A certification under this
paragraph must reflect that the
certifying official has authority to make
the certification on behalf of the State.
(j) New or amended laws. For the first
year of the CVSP, the Lead State Agency
must submit to FMCSA a copy of any
new or amended law or regulation
affecting CMV safety that was enacted
by the State since the last CVSP or
annual update was submitted.
(k) Further submissions. For the first
year of the CVSP, the Lead State Agency
must also submit other information
required, as described in the MCSAP
application memorandum for that fiscal
year.
§ 350.213 What must a State include for
the second and third years of the CVSP?
(a) General. For the second and third
years of the CVSP, a State must submit
an annual update that complies with the
MCSAP application memorandum and,
at a minimum, must include program
goals, certifications, other information
revised since the prior year’s CVSP, and
the items listed in paragraphs (b) to (g)
of this section.
(b) Budget. For the second and third
years of the CVSP, the Lead State
Agency must include a budget that
supports the applicable fiscal year of the
CVSP and describes the expenditures
for allocable costs, such as personnel
and related costs, equipment purchases,
printing, information systems costs, and
other eligible costs consistent with
§ 350.229.
(c) Resource allocation. For the
second and third years of the CVSP, the
Lead State Agency must explain the
rationale for the State’s resource
allocation decisions.
(d) List of MCSAP contacts. For the
second and third years of the CVSP, the
Lead State Agency must include a list of
MCSAP contacts.
(e) Certification. (1) For the second
and third years of the CVSP, the Lead
State Agency must certify that it has:
(i) Met all the MCSAP conditions in
§ 350.207; and
(ii) Completed the annual review
required by § 350.303 and determined
PO 00000
Frm 00022
Fmt 4701
Sfmt 4702
that State CMV safety laws and
regulations, standards, and orders are
compatible.
(2) If a State CMV safety law or
regulation, standard, or order is no
longer compatible, the certifying official
must explain the State’s plan to address
the discrepancy.
(3) A certification under this
paragraph must reflect that the
certifying official has authority to make
the certification on behalf of the State.
(f) New or amended laws. For the
second and third years of the CVSP, the
Lead State Agency must submit to
FMCSA a copy of any new or amended
law or regulation affecting CMV safety
that the State enacted since the last
CVSP or annual update was submitted.
(g) Further submissions. For the
second and third years of the CVSP, the
Lead State Agency must submit other
information required, as described in
the MCSAP application memorandum
for that fiscal year.
§ 350.215 What response does a State
receive to its CVSP or annual update?
(a) First year of the CVSP. (1) FMCSA
will notify the Lead State Agency within
30 days after FMCSA begins its review
of a State’s first year of the CVSP,
including the budget, whether FMCSA:
(i) Approves the CVSP; or
(ii) Withholds approval because the
CVSP:
(A) Does not meet the requirements of
this part; or
(B) Is not adequate to ensure effective
enforcement of compatible safety laws
and regulations, standards, and orders.
(2) If FMCSA withholds approval of
the CVSP, FMCSA will give the Lead
State Agency a written explanation of
the reasons for withholding approval
and allow the Lead State Agency to
modify and resubmit the CVSP for
approval.
(3) The Lead State Agency has 30 days
from the date of the notice under
paragraph (a)(2) of this section to
modify and resubmit the CVSP.
(4) Failure to resubmit the modified
CVSP may delay funding or jeopardize
MCSAP eligibility.
(5) Final disapproval of a resubmitted
CVSP will result in disqualification for
MCSAP funding for that fiscal year.
(b) Annual update for the second or
third year of the CVSP. (1) FMCSA will
notify the Lead State Agency within 30
days after FMCSA begins its review of
the State’s annual update, including the
budget, whether FMCSA:
(i) Approves the annual update; or
(ii) Withholds approval.
(2) If FMCSA withholds approval of
the annual update, FMCSA will give the
Lead State Agency a written explanation
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
of the reasons for withholding approval
and allow the Lead State Agency to
modify and resubmit the annual update
for approval.
(3) The Lead State Agency will have
30 days from the date of the notice
under paragraph (b)(2) of this section to
modify and resubmit the annual update.
(4) Failure to resubmit the modified
annual update may delay funding or
jeopardize MCSAP eligibility.
(5) Final disapproval of a resubmitted
annual update will result in
disqualification for MCSAP funding for
that fiscal year.
(c) Judicial review. Any State
aggrieved by an adverse decision under
this section may seek judicial review
under 5 U.S.C. chapter 7.
§ 350.217 How are MCSAP funds
allocated?
(a) General. Subject to the availability
of funding, FMCSA must allocate
MCSAP funds to grantees with
approved CVSPs in accordance with
this section.
(b) Territories—excluding Puerto
Rico. (1) Not more than 0.49 percent of
the MCSAP funds may be allocated in
accordance with this paragraph among
the Territories of American Samoa, the
Commonwealth of the Northern Mariana
Islands, Guam, and the Virgin Islands.
(2) Half of the MCSAP funds available
under paragraph (b)(1) of this section
will be divided equally among the
Territories.
(3) The remaining MCSAP funds
available under paragraph (b)(1) will be
allocated among the Territories in a
manner proportional to the Territories’
populations, as reflected in the
decennial census issued by the U.S.
Census Bureau.
(4) The amounts calculated under
paragraphs (b)(2) and (b)(3) of this
section will be totaled for each
Territory.
(5) The amounts calculated under
paragraph (b)(4) of this section will be
adjusted proportionally, based on
population, to ensure that each Territory
receives at least $350,000.
(c) Border States. (1) Not more than 11
percent of the MCSAP funds may be
allocated in accordance with this
paragraph among border States that
maintain a border enforcement program.
(2) The shares for each border State
will be calculated based on the number
of CMV crossings at each United States
port of entry, as determined by Bureau
of Transportation Statistics, with each
border State receiving:
(i) 1 share per 25,000 annual CMV
crossings at each United States port of
entry on the Mexican border, with a
minimum of 8 shares for each port of
entry; or
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
(ii) 1 share per 200,000 annual CMV
crossings at each United States port of
entry on the Canadian border, with a
minimum of 0.25 share for each port of
entry with more than 1,000 annual CMV
crossings.
(3) The shares of all border States
calculated under paragraph (c)(2) of this
section will be totaled.
(4) Each individual border State’s
shares calculated under paragraph (c)(2)
of this section will be divided by the
total shares calculated in paragraph
(c)(3) of this section.
(5) The percentages calculated in
paragraph (c)(4) of this section will be
adjusted proportionally to ensure that
each border State receives at least 0.075
percent but no more than 55 percent of
the total border allocation available
under paragraph (c)(1) of this section.
(6) Each border State’s percentage
calculated in paragraph (c)(5) of this
section will be multiplied by the total
border allocation available under this
paragraph to determine the dollar
amount of the border State’s allocation.
(7) To maintain eligibility for an
allocation under this paragraph, a
border State must maintain a border
enforcement program, but may expend
more or less than the amounts allocated
under this paragraph for border
activities. Failure to maintain a border
enforcement program will result in
forfeiture of all funds allocated under
this paragraph, but will not affect the
border State’s allocation under
paragraph (d) of this section.
(8) Allocations made under this
paragraph are in addition to allocations
made under paragraph (d) of this
section.
(d) States. (1)(i) At least 88.51 percent
of the MCSAP funds must be allocated
in accordance with this paragraph
among the eligible States, including
Puerto Rico, but excluding American
Samoa, the Commonwealth of the
Northern Mariana Islands, Guam, and
the Virgin Islands.
(ii) The amounts made available
under paragraphs (b) and (c) of this
section that are not allocated under
those paragraphs must be added to the
total amount to be allocated in
accordance with this paragraph.
(iii) In the case of reallocation of
funds under paragraph (c) of this section
by a border State that no longer
maintains a border enforcement
program, no portion of the reallocated
funds will be allocated to that border
State.
(2) The amount available under
paragraph (d)(1) of this section must be
calculated based on each State’s
percentage of the national total for each
PO 00000
Frm 00023
Fmt 4701
Sfmt 4702
44183
of the following equally-weighted
factors:
(i) National Highway System Road
Length Miles, as reported by the Federal
Highway Administration (FHWA);
(ii) All Vehicle Miles Traveled, as
reported by the FHWA;
(iii) Population (annual census
estimates), as issued by the U.S. Census
Bureau;
(iv) Special Fuel Consumption, as
reported by the FHWA; and
(v) Carrier Registrations, as
determined by FMCSA, based on the
physical State of the carrier, and
calculated as the sum of interstate
carriers and intrastate hazardous
materials carriers.
(3) Each State’s percentages calculated
in paragraph (d)(2) of this section will
be averaged.
(4) The percentage calculated in
paragraph (d)(3) of this section will be
adjusted proportionally to ensure that
each State receives at least 0.44 percent
but no more than 4.944 percent of the
MCSAP funds available under
paragraph (d)(1) of this section.
(5) Each State’s percentage will be
multiplied by the total MCSAP funds
available under this paragraph to
determine the dollar amount of the
State’s allocation.
(e) Hold-harmless and cap. (1) The
dollar amounts calculated under
paragraphs (c)(6) and (d)(5) of this
section will be totaled and then divided
by the total MCSAP funds to determine
a State’s percentage of the total MCSAP
funds.
(2) Each State’s total percentage of its
MCSAP funding in the fiscal year
immediately prior to the year for which
funding is being allocated will be
determined by dividing the State’s
dollar allocation by the overall MCSAP
funding in that prior year.
(3) Proportional adjustments will be
made to ensure that each State’s
percentage of MCSAP funds as
calculated under subparagraph (1) of
this paragraph will be no less than 97
percent or more than 105 percent of the
State’s percentage of MCSAP funds
allocated for the prior fiscal year.
(f) Withholding. (1) Allocations made
under this section are subject to
withholdings under § 350.231(d).
(2) Minimum or maximum allocations
described in paragraphs (b), (c), and (d)
of this section are to be applied prior to
any reduction under § 350.231(d).
(3) State MCSAP funds affected by
§ 350.231(d) will be allocated to the
unaffected States in accordance with
paragraph (d) of this section.
(4) Paragraph (e) of this section does
not apply after any reduction under
§ 350.231(d).
E:\FR\FM\22AUP3.SGM
22AUP3
44184
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
§ 350.219 How are MCSAP funds awarded
under a continuing resolution
appropriations act or an extension of
FMCSA’s authorization?
In the event of a continuing resolution
appropriations act or an extension of
FMCSA’s authorization, subject to the
availability of funding, FMCSA may
first issue grants to States that have the
lowest percent of undelivered
obligations of the previous Federal fiscal
year’s funding, or as otherwise
determined by the Administrator.
§ 350.221 How long are MCSAP funds
available to a State?
MCSAP funds obligated to a State will
remain available for the Federal fiscal
year that the funds are obligated and the
next full Federal fiscal year.
§ 350.223 What are the Federal and State
shares of costs incurred under MCSAP?
(a) Federal share. FMCSA will
reimburse at least 85 percent of the
eligible costs incurred under MCSAP.
(b) Match. (1) In-kind contributions
are acceptable in meeting a State’s
matching share under MCSAP if they
represent eligible costs, as established
by 2 CFR parts 200 and 1201 and
FMCSA policy.
(2) States may use amounts generated
under the Unified Carrier Registration
Agreement as part of the State’s match
required for MCSAP, provided the
amounts are not applied to the MOE
required under § 350.225 and are spent
on eligible costs, as established by 2
CFR parts 200 and 1201 and FMCSA
policy.
(c) Waiver. (1) The Administrator
waives the requirement for the matching
share under MCSAP for American
Samoa, the Commonwealth of the
Northern Mariana Islands, Guam, and
the Virgin Islands.
(2) The Administrator reserves the
right to reduce or waive the matching
share under MCSAP for other States in
any fiscal year:
(i) As announced in the MCSAP
application memorandum; or
(ii) As determined by the
Administrator on a case-by-case basis.
§ 350.225 What MOE must a State maintain
to qualify for MCSAP funds?
(a) General. Subject to paragraph (e) of
this section, a State must maintain an
MOE each fiscal year equal to the
average aggregate expenditure of the
Lead State Agency for CMV safety
programs eligible for funding under this
part at a level at least equal to:
(1) The average level of that
expenditure for the base period of fiscal
years 2004 and 2005; or
(2) The level of expenditure in fiscal
year 2020, as adjusted under section
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
5107 of the Fixing America’s Surface
Transportation (FAST) Act (Pub. L. 114–
94, 129 Stat. 1312, 1532–1534 (2015)).
(b) Calculation. In determining a
State’s MOE, FMCSA:
(1) May allow the State to exclude
State expenditures for Federallysponsored demonstration and pilot
CMV safety programs and strike forces;
(2) May allow the State to exclude
expenditures for activities related to
border enforcement and new entrant
safety audits;
(3) May allow the State to use
amounts generated under the Unified
Carrier Registration Agreement,
provided the amounts are not applied to
the match required under § 350.223;
(4) Requires the State to exclude
Federal funds; and
(5) Requires the State to exclude State
matching funds.
(c) Costs. (1) A State must include all
eligible costs associated with activities
performed during the base period by the
Lead State Agency that receives funds
under this part.
(2) A State must include only those
activities that meet the current
requirements for funding eligibility
under the grant program.
(d) Waivers and modifications. (1) If
a State requests, FMCSA may waive or
modify the State’s obligation to meet its
MOE for a fiscal year if FMCSA
determines that the waiver or
modification is reasonable, based on
circumstances described by the State.
(2) Requests to waive or modify the
State’s obligation to meet its MOE must
be submitted to FMCSA in writing.
(3) FMCSA will review the request
and provide a response as soon as
practicable, but no later than 120 days
following receipt of the request.
(e) Permanent adjustment. After
Federal fiscal year 2020, at the request
of a State, FMCSA may make a
permanent adjustment to reduce the
State’s MOE only if a State has new
information unavailable to it during
Federal fiscal year 2020.
§ 350.227 What activities are eligible for
reimbursement under MCSAP?
(a) General. The primary activities
eligible for reimbursement under
MCSAP are:
(1) Activities that support the national
program elements listed in § 350.203;
and
(2) Sanitary food transportation
inspections performed under 49 U.S.C.
5701.
(b) Additional activities. If part of the
approved CVSP and accompanied by an
appropriate North American Standard
Inspection and inspection report,
additional activities eligible for
reimbursement are:
PO 00000
Frm 00024
Fmt 4701
Sfmt 4702
(1) Enforcement of CMV size and
weight limitations at locations, other
than fixed-weight facilities, where the
weight of a CMV can significantly affect
the safe operation of the vehicle, such
as near steep grades or mountainous
terrains, or at ports where intermodal
shipping containers enter and leave the
United States; and
(2) Detection of, and enforcement
activities taken as a result of, criminal
activity involving a CMV or any
occupant of the vehicle, including the
trafficking of human beings.
(c) Traffic enforcement. Documented
enforcement of State traffic laws and
regulations designed to promote the safe
operation of CMVs, including
documented enforcement of such laws
and regulations relating to non-CMVs
when necessary to promote the safe
operation of CMVs, are eligible for
reimbursement under MCSAP if:
(1) The number of motor carrier safety
activities, including safety inspections,
is maintained at a level at least equal to
the average level of such activities
conducted in the State in fiscal years
2004 and 2005; and
(2) The State does not use more than
10 percent of its MCSAP funds for
enforcement activities relating to nonCMVs necessary to promote the safe
operation of CMVs, unless the
Administrator determines that a higher
percentage will result in significant
increases in CMV safety.
§ 350.229 What specific costs are eligible
for reimbursement under MCSAP?
(a) General. FMCSA must establish
criteria for activities eligible for
reimbursement and publish those
criteria in policy or the MCSAP
application memorandum before the
MCSAP application period.
(b) Costs eligible for reimbursement.
All costs relating to activities eligible for
reimbursement must be necessary,
reasonable, allocable, and allowable
under this subpart and 2 CFR parts 200
and 1201. The eligibility of specific
costs for reimbursement is addressed in
the MCSAP application memorandum
and is subject to review and approval by
FMCSA.
(c) Ineligible costs. MCSAP funds may
not be used for the:
(1) Acquisition of real property or
buildings; or
(2) Development, implementation, or
maintenance of a State registry of
medical examiners.
§ 350.231 What are the consequences for
failure to meet MCSAP conditions?
(a) General. (1) If a State is not
performing according to an approved
CVSP or not adequately meeting the
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
conditions set forth in § 350.207, the
Administrator may issue a written
notice of proposed determination of
nonconformity to the chief executive of
the State or the official designated in the
CVSP.
(2) The notice will set forth the
reasons for the proposed determination.
(b) Response. The State has 30 days
from the date of the notice to reply. The
reply must address the discrepancy
cited in the notice and must provide
documentation as requested.
(c) Final Agency decision. (1) After
considering the State’s reply, the
Administrator makes a final decision.
(2) In the event the State fails to
timely reply to a notice of proposed
determination of nonconformity, the
notice becomes the Administrator’s final
determination of nonconformity.
(d) Consequences. Any adverse
decision will result in FMCSA:
(1) Withdrawing approval of the CVSP
and withholding all MCSAP funds to
the State; or
(2) Finding the State in
noncompliance in lieu of withdrawing
approval of the CVSP and withholding:
(i) Up to 5 percent of MCSAP funds
during the fiscal year that FMCSA
notifies the State of its noncompliance;
(ii) Up to 10 percent of MCSAP funds
for the first full fiscal year of
noncompliance;
(iii) Up to 25 percent of MCSAP funds
for the second full fiscal year of
noncompliance; and
(iv) Up to 50 percent of MCSAP funds
for the third and any subsequent full
fiscal year of noncompliance.
(e) Judicial review. Any State
aggrieved by an adverse decision under
this section may seek judicial review
under 5 U.S.C. chapter 7.
Subpart C—MCSAP Required
Compatibility Review
§ 350.301
subpart?
What is the purpose of this
The purpose of this subpart is to assist
States receiving MCSAP funds to
address compatibility, including the
availability of variances or exemptions
allowed under § 350.305 or § 350.307,
to:
(a) Promote adoption and enforcement
of compatible safety laws and
regulations, standards, and orders;
(b) Provide for a continuous review of
safety laws and regulations, standards,
and orders;
(c) Establish deadlines for States to
achieve compatibility; and
(d) Provide States with a process for
requesting exemptions for intrastate
commerce.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
§ 350.303 How does a State ensure
compatibility?
(a) General. The Lead State Agency is
responsible for reviewing and analyzing
State safety laws and regulations,
standards, and orders to ensure
compatibility.
(b) Compatibility deadline. As soon as
practicable, but no later than 3 years
after the effective date of any new
addition or amendment to the FMCSRs
or HMRs, the State must amend its laws
and regulations, standards, and orders
to ensure compatibility.
(c) State adoption of CMV law or
regulation. A State must submit to
FMCSA a copy of any new or amended
State safety law and regulation,
standard, and order relating to CMV
safety immediately after its enactment
or issuance and with the State’s next
annual compatibility review.
(d) Annual State compatibility review.
(1) A State must conduct a review of its
laws and regulations, standards, and
orders relating to CMV safety, including
those of its political subdivisions, for
compatibility and report in the CVSP, or
annual update, as part of its application
for funding under § 350.209 each fiscal
year.
(2)(i) The State must demonstrate
whether its laws and regulations,
standards, and orders relating to CMV
safety are identical to or have the same
effect as a corresponding provision of
the FMCSRs, are in addition to or more
stringent than provisions of the
FMCSRs, or are less stringent than a
corresponding provision of the FMCSRs.
(ii) If a State’s law or regulation,
standard, or order relating to CMV
safety is identical to or has the same
effect as the corresponding provision of
the FMCSRs, the State provision is
enforceable.
(iii) If a State’s law or regulation,
standard, or order relating to CMV
safety is in addition to or more stringent
than the provisions of the FMCSRs, in
order to be enforceable, the State must
demonstrate that:
(A) The State provision has a safety
benefit;
(B) It is compatible with the FMCSRs;
and
(C) Enforcement would not cause an
unreasonable burden on interstate
commerce.
(iv) If a State’s law or regulation,
standard, or order relating to CMV
safety is less stringent than the FMCSRs,
it is not enforceable, unless it falls
within the provisions of §§ 350.305 or
350.307.
(3) The State must demonstrate that
its laws and regulations, standards, and
orders relating to CMV safety applicable
to both interstate and intrastate
PO 00000
Frm 00025
Fmt 4701
Sfmt 4702
44185
commerce are identical to the
corresponding provision of the HMRs.
(4) The State’s laws and regulations,
standards, and orders relating to CMV
safety reviewed for the commercial
driver’s license compliance report are
excluded from the compatibility review.
(5) Definitions of words or terms in a
State’s laws and regulations, standards,
and orders relating to CMV safety must
be compatible with those in the
FMCSRs and HMRs.
(e) Reporting to FMCSA. (1) The
reporting required by paragraph (d) of
this section, to be submitted with the
CVSP or annual update, must include:
(i) A copy of any State law or
regulation, standard, or order relating to
CMV safety that was adopted or
amended since the State’s last report;
and
(ii) A certification that states the
annual review was performed and State
laws and regulations, standards, and
orders relating to CMV safety remain
compatible, and that provides the name
of the individual responsible for the
annual review.
(2) If State laws and regulations,
standards, and orders relating to CMV
safety are no longer compatible, the
certifying official must explain the
State’s plan to correct the discrepancy.
(f) FMCSA response. Not later than 10
days after FMCSA determines that a
State law or regulation, standard, or
order may not be enforced, FMCSA
must give written notice of the decision
to the State.
(g) Waiver of determination. (1) A
State or any person may petition the
Administrator for a waiver of a decision
by the Administrator that a State law or
regulation, standard, or order may not
be enforced.
(2) Before deciding whether to grant
or deny a waiver under this paragraph,
the Administrator shall give the
petitioner an opportunity for a hearing
on the record.
(3) If the State or person demonstrates
to the satisfaction of the Administrator
that the waiver is consistent with the
public interest and the safe operation of
CMVs, the Administrator shall grant the
waiver as expeditiously as practicable.
§ 350.305 What specific variances from the
FMCSRs are allowed for State laws and
regulations and not subject to Federal
jurisdiction?
(a) General. (1) Except as otherwise
provided in this section, a State may
exempt a CMV from all or part of its
laws or regulations applicable to
intrastate commerce, if the gross vehicle
weight rating, gross combination weight
rating, gross vehicle weight, or gross
combination weight does not equal or
E:\FR\FM\22AUP3.SGM
22AUP3
44186
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
exceed 11,801 kilograms (26,001
pounds).
(2) A State may not exempt a CMV
from laws or regulations under
paragraph (a)(1) of this section if the
vehicle:
(i) Transports hazardous materials
requiring a placard; or
(ii) Is designed or used to transport 16
or more people, including the driver.
(b) Non-permissible exemptions—
Type of business operation. (1) Subject
to paragraph (b)(2) of this section and
§ 350.307, State laws and regulations
applicable to intrastate commerce may
not grant exemptions based on the type
of transportation being performed (e.g.,
for-hire carrier, private carrier).
(2) A State may retain those
exemptions from its motor carrier safety
laws and regulations that were in effect
before April 1988, are still in effect, and
apply to specific industries operating in
intrastate commerce, provided the scope
of the original exemption has not been
amended.
(c) Non-permissible exemptions—
Distance. (1) Subject to paragraph (c)(2)
of this section, State laws and
regulations applicable to intrastate
commerce must not include exemptions
based on the distance a motor carrier or
driver operates from the work reporting
location.
(2) Paragraph (c)(1) of this section
does not apply to distance exemptions
contained in the FMCSRs.
(d) Hours of service. State hours-ofservice limitations applied to intrastate
transportation may vary to the extent
that they allow:
(1) A 12-hour driving limit, provided
that a driver of a CMV is not permitted
to drive after having been on duty more
than 16 hours;
(2) Driving prohibitions for drivers
who have been on duty 70 hours in 7
consecutive days or 80 hours in 8
consecutive days; or
(3) Extending the 100-air mile radius
under § 395.1(e)(1)(i) to a 150-air mile
radius.
(e) Age of CMV driver. All intrastate
CMV drivers must be at least 18 years
of age.
(f) Driver physical conditions. (1)
Intrastate drivers who do not meet the
physical qualification standards in
§ 391.41 of this chapter may continue to
be qualified to operate a CMV in
intrastate commerce if:
(i) The driver was qualified under
existing State law or regulation at the
time the State adopted physical
qualification standards consistent with
the Federal standards in § 391.41 of this
chapter;
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
(ii) The otherwise non-qualifying
medical or physical condition has not
substantially worsened; and
(iii) No other non-qualifying medical
or physical condition has developed.
(2) The State may adopt or continue
programs granting variances to intrastate
drivers with medical or physical
conditions that would otherwise be nonqualifying under the State’s equivalent
of § 391.41 of this chapter if the
variances are based on sound medical
judgment combined with appropriate
performance standards ensuring no
adverse effect on safety.
(3) A State that has in effect physical
qualification standards or variances
continued in effect or adopted by the
State under this paragraph for drivers
operating CMVs in intrastate commerce
has the option not to adopt laws and
regulations that establish a separate
registry of medical examiners trained
and qualified to apply such physical
qualification standards or variances.
(g) Additional variances. A State may
apply to the Administrator for a
variance from the FMCSRs not
otherwise covered by this section for
intrastate commerce. The variance will
be granted only if the State satisfactorily
demonstrates that the State safety law or
regulation, standard, or order:
(1) Achieves substantially the same
purpose as the similar Federal
regulation;
(2) Does not apply to interstate
commerce; and
(3) Is not likely to have an adverse
impact on safety.
§ 350.307 How may a State obtain a new
exemption for State laws and regulations
for a specific industry involved in intrastate
commerce?
FMCSA will only consider a State’s
request to exempt a specific industry
from all or part of a State’s laws or
regulations applicable to intrastate
commerce if the State submits adequate
documentation containing information
allowing FMCSA to evaluate:
(a) The type and scope of the industry
exemption request, including the
percentage of the industry it affects,
number of vehicles, mileage traveled,
and number of companies it involves;
(b) The type and scope of the
requirement to which the exemption
would apply;
(c) The safety performance of that
specific industry (e.g., crash frequency,
rates, and comparative figures);
(d) Inspection information (e.g.,
number of violations per inspection,
and driver and vehicle out-of-service
information);
(e) Other CMV safety regulations that
other State agencies not participating in
MCSAP enforce;
PO 00000
Frm 00026
Fmt 4701
Sfmt 4702
(f) The commodity the industry
transports (e.g., livestock or grain);
(g) Similar exemptions granted and
the circumstances under which they
were granted;
(h) The justification for the
exemption; and
(i) Any identifiable effects on safety.
§ 350.309 What are the consequences if a
State has provisions that are not
compatible?
(a) General. To remain eligible for
MCSAP funding, a State may not have
in effect or enforce any State law or
regulation, standard, or order relating to
CMV safety in commerce that the
Administrator finds not to be
compatible.
(b) Process. FMCSA may initiate a
proceeding to withdraw the current
CVSP approval or withhold MCSAP
funds in accordance with § 350.231:
(1) If a State enacts a law or
regulation, standard, or order relating to
CMV safety that is not compatible;
(2) If a State fails to adopt a new or
amended FMCSR or HMR within 3
years of its effective date; or
(3) If FMCSA finds, based on its own
initiative or on a petition of a State or
any person, that a State law, regulation,
or enforcement practice relating to CMV
safety, in either interstate or intrastate
commerce, is not compatible.
(c) Hazardous materials. Any decision
regarding the compatibility of a State
law or regulation, standard, or order
relating to CMV safety with the HMRs
that requires an interpretation will be
referred to the Pipeline and Hazardous
Materials Safety Administration of the
United States Department of
Transportation for interpretation before
proceeding under § 350.231.
Subpart D—High Priority Program
§ 350.401 What is the High Priority
Program?
The High Priority Program is a
competitive financial assistance
program available to States, local
governments, Federally-recognized
Indian tribes, other political
jurisdictions, and other persons to carry
out high priority activities and projects
that augment motor carrier safety
activities and projects. The High Priority
Program also promotes the deployment
and use of innovative technology by
States for CMV information systems and
networks. Under this program, the
Administrator may make competitive
grants to and enter into cooperative
agreements with eligible entities to carry
out high priority activities and projects
that augment motor carrier safety
activities and projects. The
Administrator also may award grants to
E:\FR\FM\22AUP3.SGM
22AUP3
Federal Register / Vol. 84, No. 163 / Thursday, August 22, 2019 / Proposed Rules
States for projects planned in
accordance with the Innovative
Technology Deployment Program.
§ 350.403 What are the High Priority
Program objectives?
FMCSA may use the High Priority
Program funds to support, enrich, or
evaluate CMV safety programs and to:
(a) Target unsafe driving of CMVs and
non-CMVs in areas identified as highrisk crash corridors;
(b) Improve the safe and secure
movement of hazardous materials;
(c) Improve safe transportation of
goods and passengers in foreign
commerce;
(d) Demonstrate new technologies to
improve CMV safety;
(e) Support participation in PRISM
and safety data improvement projects by
Lead State Agencies:
(1) Before October 1, 2020, to achieve
full participation in PRISM; and
(2) Beginning on October 1, 2020, or
once full participation in PRISM is
achieved, whichever is sooner, to
conduct special initiatives or projects
that exceed routine operations for
participation;
(f) Support participation in PRISM
and safety data improvement projects by
entities other than Lead State Agencies;
(g) Support safety data improvement
projects conducted by:
(1) Lead State Agencies for projects
that exceed MCSAP safety data
requirements; or
(2) Entities other than Lead State
Agencies for projects that meet or
exceed MCSAP safety data
requirements;
(h) Advance the technological
capability and promote the Innovative
Technology Deployment of intelligent
transportation system applications for
CMV operations;
(i) Increase public awareness and
education on CMV safety; and
(j) Otherwise improve CMV safety.
with the Lead State Agency to ensure
the proposal is consistent with State and
national CMV safety program priorities;
(3) Certify that the applicant has the
legal authority, resources, and trained
and qualified personnel necessary to
perform the functions specified in the
proposal;
(4) Designate an individual who will
be responsible for implementation,
reporting, and administering the
approved proposal and who will be the
primary contact for the project;
(5) Agree to prepare and submit all
reports required in connection with the
proposal or other conditions of the grant
or cooperative agreement;
(6) Agree to use the forms and
reporting criteria required by the Lead
State Agency or FMCSA to record work
activities to be performed under the
proposal;
(7) Certify that a political jurisdiction
will impose sanctions for violations of
CMV and driver laws and regulations
that are consistent with those of the
State; and
(8) Certify participation in national
databases appropriate to the project.
§ 350.407 How and when does an eligible
entity apply for High Priority Program
funds?
FMCSA publishes application
instructions and criteria for eligible
activities to be funded under this
subpart in a NOFO at least 30 days
before the financial assistance program
application period closes.
§ 350.409 What response will an applicant
receive under the High Priority Program?
(a) Approval. If FMCSA awards a
grant or cooperative agreement, the
applicant will receive a grant agreement
to execute.
(b) Denial. If FMCSA denies the grant
or cooperative agreement, the applicant
will receive a notice of denial.
§ 350.405 What conditions must an
applicant meet to qualify for High Priority
Program funds?
§ 350.411 How long are High Priority
Program funds available to a recipient?
(a) States. To qualify for High Priority
Program funds, a State must:
(1) Participate in MCSAP under
subpart B of this part; and
(2) Prepare a proposal that is
responsive to the High Priority Program
Notice of Funding Opportunity (NOFO).
(b) Other applicants. To qualify for
High Priority Program funds, applicants
other than States must, to the extent
applicable:
(1) Prepare a proposal that is
responsive to the NOFO;
(2) Except for Federally-recognized
Indian tribes, coordinate the proposal
(a) General. High Priority Program
funds related to motor carrier safety
activities under § 350.403 paragraphs (a)
through (g), (i), and (j) obligated to a
recipient are available for the rest of the
fiscal year that the funds are obligated
and the next 2 full fiscal years.
(b) Innovative Technology
Deployment. High Priority Program
funds for Innovative Technology
Deployment activities under
§ 350.403(h) obligated to a State are
available for the rest of the fiscal year
that the funds were obligated and the
next 4 full fiscal years.
VerDate Sep<11>2014
17:27 Aug 21, 2019
Jkt 247001
PO 00000
Frm 00027
Fmt 4701
Sfmt 9990
44187
§ 350.413 What are the Federal and
recipient shares of costs incurred under the
High Priority Program?
(a) Federal share. FMCSA will
reimburse at least 85 percent of the
eligible costs incurred under the High
Priority Program.
(b) Match. In-kind contributions are
acceptable in meeting the recipient’s
matching share under the High Priority
Program if they represent eligible costs,
as established by 2 CFR parts 200 and
1201 and FMCSA policy.
(c) Waiver. The Administrator
reserves the right to reduce or waive the
recipient’s matching share in any fiscal
year:
(1) As announced in the NOFO; or
(2) As determined by the
Administrator on a case-by-case basis.
§ 350.415 What types of activities and
projects are eligible for reimbursement
under the High Priority Program?
Activities that fulfill the objectives in
§ 350.403 are eligible for reimbursement
under the High Priority Program.
§ 350.417 What specific costs are eligible
for reimbursement under the High Priority
Program?
(a) Costs eligible for reimbursement.
All costs relating to activities eligible for
reimbursement must be necessary,
reasonable, allocable, and allowable
under this subpart and 2 CFR parts 200
and 1201. The eligibility of specific
costs for reimbursement is addressed in
the NOFO and is subject to review and
approval by FMCSA
(b) Ineligible costs. High Priority
Program funds may not be used for the:
(1) Acquisition of real property or
buildings; or
(2) Development, implementation, or
maintenance of a State registry of
medical examiners.
PART 355—[Removed and Reserved]
2. Under the authority of 49 U.S.C.
504 and 31101 et seq., remove and
reserve part 355, consisting of §§ 355.1
through 355.25 and appendix A to part
355.
■
PART 388—[Removed and Reserved]
3. Under the authority of 49 U.S.C.
113 and 502, remove and reserve part
388, consisting of §§ 388.1 through
388.8.
■
Issued under authority delegated in 49 CFR
1.87.
Dated: August 12, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019–17763 Filed 8–21–19; 8:45 am]
BILLING CODE 4910–EX–P
E:\FR\FM\22AUP3.SGM
22AUP3
]]>Agencies
[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Proposed Rules]
[Pages 44162-44187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-17763]
[[Page 44161]]
Vol. 84
Thursday,
No. 163
August 22, 2019
Part V
Department of Transportation
-----------------------------------------------------------------------
Federal Motor Carrier Safety Administration
-----------------------------------------------------------------------
49 CFR Parts 350, 355, and 388
Motor Carrier Safety Assistance Program; Proposed Rule
Federal Register / Vol. 84 , No. 163 / Thursday, August 22, 2019 /
Proposed Rules
[[Page 44162]]
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 350, 355, and 388
[Docket No. FMCSA-2017-0370]
RIN 2126-AC02
Motor Carrier Safety Assistance Program
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: FMCSA proposes amendments to the Agency's financial assistance
programs resulting from the Fixing America's Surface Transportation
(FAST) Act, including amendments based on the funding formula
recommendations derived from the Motor Carrier Safety Assistance
Program (MCSAP) Formula Working Group (working group). This proposal
would reorganize the Agency's regulations to create a standalone
subpart for the High Priority Program. It would also include other
programmatic changes to reduce redundancies, require the use of 3-year
MCSAP commercial vehicle safety plans (CVSPs), and align the financial
assistance programs with FMCSA's current enforcement and compliance
programs.
DATES: Comments on this notice must be received on or before October 7,
2019.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2017-0370 using any of the following methods:
Federal eRulemaking Portal: https://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, Washington, DC 20590, between
9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: Jack Kostelnik, State Programs
Division, Federal Motor Carrier Safety Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001, by telephone at (202) 366-5721 or
by email at [email protected]. If you have questions on viewing or
submitting material to the docket, contact Docket Services, telephone
(202) 366-9826.
SUPPLEMENTARY INFORMATION: This notice of proposed rulemaking (NPRM) is
organized as follows:
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
D. Waiver of Advance Notice of Proposed Rulemaking
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Summary of Major Provisions
C. Costs and Benefits
III. Abbreviations and Acronyms
IV. Legal Basis for the Rulemaking
V. Background
A. History of MCSAP
B. FAST Act
C. FAST Act Omnibus Rule
D. MCSAP Formula Working Group
E. Voluntary Implementation of CVSPs
VI. Discussion of the Proposed Rulemaking
A. Separation of MCSAP and the High Priority Program Provisions
B. Proposed MCSAP Allocation Formula
C. CVSP
D. Performance and Registration Information Systems Management
(PRISM)
E. Authorization and Appropriations Related Changes
F. Relocation of 49 CFR Part 355--Compatibility of State Laws
and Regulations Affecting Interstate Motor Carrier Operations
G. 49 CFR Part 385 Subpart E--Hazardous Material Safety Permits
H. Removal of 49 CFR Part 388--Cooperative Agreements With
States
I. Other Proposed Changes
J. Request for Comments
VII. International Impacts
VIII. Section-by-Section Analysis
IX. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory
Costs)
C. Regulatory Flexibility Act
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act
G. E.O. 13132 (Federalism)
H. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy
L. E.O. 12372 (Intergovernmental Review)
M. E.O. 13211 (Energy Supply, Distribution, or Use)
N. E.O. 13783 (Promoting Energy Independence and Economic
Growth)
O. E.O. 13175 (Indian Tribal Governments)
P. National Technology Transfer and Advancement Act (Technical
Standards)
Q. National Environmental Policy Act of 1969
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
NPRM (Docket No. FMCSA-2017-0370), indicate the specific section of
this document to which each comment applies, and provide a reason for
each suggestion or recommendation. You may submit your comments and
material online or by fax, mail, or hand delivery, but please use only
one of these means. FMCSA recommends that you include your name and a
mailing address, an email address, or a telephone number in the body of
your document so that FMCSA can contact you if there are questions
regarding your submission.
To submit your comment online, go to https://www.regulations.gov,
put the docket number, FMCSA-2017-0370, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may change this proposed rule based on your
comments. FMCSA may issue a final rule at any time after the close of
the comment period.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act (5 U.S.C.
552), CBI is eligible for protection from public disclosure. If you
have CBI that is relevant or responsive to this NPRM, it is important
that you clearly designate the submitted comments as CBI. Accordingly,
please mark each page of your submission as ``confidential'' or
``CBI.'' Submissions designated as CBI and meeting the definition noted
above
[[Page 44163]]
will not be placed in the public docket of this NPRM. Submissions
containing CBI should be sent to Brian Dahlin, Chief, Regulatory
Evaluation Division, Federal Motor Carrier Safety Administration, 1200
New Jersey Avenue SE, Washington, DC 20590-0001. Any commentary that
FMCSA receives that is not specifically designated as CBI will be
placed in the public docket for this rulemaking.
B. Viewing Comments and Documents
To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to https://www.regulations.gov. Insert the docket number, FMCSA-2017-0370, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590,
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal
holidays.
C. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice (DOT/ALL 14-FDMS), which can be reviewed at
www.transportation.gov/privacy.
D. Waiver of Advance Notice of Proposed Rulemaking
Under section 5202 of the FAST Act, Public Law 114-94, 129 Stat.
1312, 1534-5 (2015), if a regulatory proposal is likely to lead to the
promulgation of a major rule,\1\ FMCSA is required to publish an
advance notice of proposed rulemaking (ANPRM), unless the Agency finds
good cause that an ANPRM is impracticable, unnecessary, or contrary to
the public interest (49 U.S.C. 31136(g)). The Agency does not
anticipate that this rulemaking would result in a major rule. Thus,
publication of an ANPRM is not necessary. However, a key component of
this rulemaking involves a new allocation formula governing the
distribution of MCSAP funds. This NPRM reflects the allocations derived
from the recommendations of the working group that was appointed by the
Secretary of Transportation (Secretary) in accordance with section 5106
of the FAST Act.
---------------------------------------------------------------------------
\1\ A ``major rule'' means any rule that the Administrator of
the Office of Information and Regulatory Affairs at the Office of
Management and Budget (OMB) finds has resulted in or is likely to
result in (a) an annual effect on the economy of $100 million or
more; (b) a major increase in costs or prices for consumers,
individual industries, Federal agencies, State agencies, local
government agencies, or geographic regions; or (c) significant
adverse effects on competition, employment, investment,
productivity, innovation, or on the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic
and export markets (5 U.S.C. 804(2)).
---------------------------------------------------------------------------
While this working group was not a negotiated rulemaking committee,
which is an alternative to an ANPRM under the statute, its
recommendations were developed through a collaborative effort by
relevant stakeholders.
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
The purpose of this regulatory action is to amend and reorganize 49
CFR part 350, including adding relevant sections that are currently
located in part 355. Certain regulations are no longer necessary or are
redundant. Moreover, the FAST Act required FMCSA to implement a multi-
year CVSP with annual updates for States applying for MCSAP funds and
to provide a new MCSAP allocation formula. This proposal would provide
a new MCSAP allocation formula, require States to adopt 3-year CVSPs,
and reorganize the Agency's regulations to create a standalone subpart
for the High Priority Program. FMCSA's primary legal authority for this
rulemaking is derived from Title V, Subtitle A of the FAST Act, Public
Law 114-94, 129 Stat. 1312, 1514-1534 (2015).
B. Summary of Major Provisions
The rule proposes a new MCSAP allocation formula. The FAST Act
required the Secretary to assemble a working group to recommend a new
MCSAP allocation formula. The Agency fully considered and is proposing
to fully adopt the recommendations of the working group.
The new MCSAP allocation formula would include three components:
State, Border, and Territory. Each component would be assigned a
percentage of MCSAP funds. Funds would be allocated under the State
Component using five equally-weighted factors and then applying minimum
and maximum caps to the allocated funding. The Border Component would
allocate funding based on the number of United States ports of entry
and the number of commercial motor vehicle (CMV) crossings at those
ports of entry, subject to minimum and maximum funding levels. This
Border Component accounts for differences in the number of crossings
per port of entry at the Northern border compared to the Southern
border of the United States. Finally, the Territory Component would
ensure that each Territory, except for Puerto Rico (which is allocated
funding under the State Component), receives a minimum funding amount
of $350,000. Any funds not allocated under the Border or Territory
Components would be added to the State Component for allocation. The
proposed formula would promote stability in funding and protect States
from experiencing significant and unpredicted changes by including a
hold-harmless provision and a funding cap.
This proposed rule would require States to use CVSPs in accordance
with the FAST Act. The rule would provide direction to States on how
and when to submit CVSPs, which would be on 3-year cycles. In the first
year of the CVSP, States would submit quantitative performance
objectives, analysis of past performance, and other documents
traditionally provided in an annual CVSP, as well as a budget for the
initial year. In the second and third years of the CVSP, States would
submit an annual update that includes changes to the CVSP (including
updates to performance objectives and adjustments to activities), a
budget for the applicable fiscal year, and other documents required on
an annual basis.
FMCSA proposes to clarify a State's obligation to cooperate in the
enforcement of hazardous materials safety permits for interstate and
intrastate carriers, as required under subpart E of 49 CFR part 385, to
transport certain hazardous materials.
The rule also proposes to revise and reorganize part 350.
Currently, the High Priority Program and MCSAP regulations are
intertwined in part 350, but some regulations do not apply to both
programs. To provide clarity for the eligible recipients, this NPRM
separates the two programs into different subparts in part 350. In
addition, relevant sections of part 355 would be added to part 350.
These proposed changes address regulatory compatibility and would
reduce redundancy and make part 350 more clear and concise.
Finally, FMCSA proposes to remove part 388, titled ``Cooperative
Agreements with States,'' because FMCSA does not rely on part 388
provisions.
C. Costs and Benefits
This rule proposes a new MCSAP allocation formula to replace the
current
[[Page 44164]]
formula that has been in use for more than a decade with little
modification. The proposed MCSAP allocation formula would make several
improvements over the current formula. The proposed formula would
result in a reallocation of fiscal year (FY) 2020 grant funding that
would be considered a transfer payment, in that it would not change the
total amount of funds distributed. In accordance with OMB guidance on
conducting regulatory analysis (as discussed in OMB Circular A-4,
``Regulatory Analysis''), transfer payments within the U.S. are not
included in the estimates of the costs and benefits of rulemakings.
Thus, FMCSA does not include transfers resulting from the proposed
changes to the MCSAP allocation formula in its estimate of the rule's
costs or benefits.
The proposed rule would require States to use CVSPs in accordance
with the FAST Act. The rule would provide direction to States on how
and when to submit CVSPs, which would be on 3-year cycles. Under the
current regulations, States must submit lengthy CVSP applications
annually to receive MCSAP funding, unless they volunteer to submit 3-
year CVSPs. The proposed rule would require States to submit robust 3-
year CVSP applications for the first year, with annual updates for the
second and third years. FMCSA expects that 3-year CVSPs will be less
burdensome and time consuming for States than submitting lengthy CVSP
applications annually, which will result in lower program
administrative costs. All 55 States \2\ have transitioned voluntarily
to 3-year CVSPs, and thus, there is no impact from this proposed
change.
---------------------------------------------------------------------------
\2\ Unless otherwise provided in this preamble, we use the term
``State'' as including the District of Columbia and the Territories.
FMCSA estimated that there are 55 respondents consisting of the 50
States minus Oregon, plus the District of Columbia and the 5
Territories.
---------------------------------------------------------------------------
If a continuing resolution in FY 2020 were to occur, FMCSA would
utilize the same process it has employed during recent budget cycles.
State lead agencies would complete the CVSP utilizing an estimated
annual award total based on the statutorily authorized funding level.
Should the final appropriation be less than the authorized amount,
FMCSA would publish a revised funding table and provide MCSAP
recipients the opportunity to modify their proposed activities and
budget accordingly.
FMCSA will also engage in continuous outreach with its MCSAP
recipients regarding the implementation of the proposed formula and
related impacts. The Agency anticipates including this as a key topic
of discussion during its annual meeting of MCSAP grantees, providing
ongoing updates through its quarterly webinars with grant recipients,
and developing printed materials relating to the new formula
implementation.
FMCSA, through its Division Offices, will work directly with
individual MCSAP partners to ensure that stakeholders are informed and
that questions are addressed quickly. In addition, FMCSA has already
developed and distributed via its website a series of frequently asked
questions (FAQs) and an executive summary of the working group's report
to facilitate this process.
Due to the nature of grants as transfer payments (which are not
considered costs or benefits), FMCSA anticipates that the proposed
changes would not result in any societal costs or benefits.
III. Abbreviations and Acronyms
ANPRM Advance notice of proposed rulemaking
BEG Border Enforcement Grant
CBI Confidential Business Information
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial motor vehicle
CVSP Commercial vehicle safety plan
DOT Department of Transportation
eCVSP Electronic commercial vehicle safety plan
E.O. Executive Order
FAST Act Fixing America's Surface Transportation Act
FHWA Federal Highway Administration
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
FTE Full-time employees
FY Fiscal year
HMRs Federal Hazardous Materials Regulations
MCSAP Motor Carrier Safety Assistance Program
MOE Maintenance of effort
NOFO Notice of Funding Opportunity
NPRM Notice of proposed rulemaking
OMB Office of Management and Budget
PRISM Performance and Registration Information Systems Management
RFA Regulatory Flexibility Act
Sec. Section
Secretary Secretary of Transportation
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
working group MCSAP Formula Working Group
U.S.C. United States Code
VMT Vehicle miles traveled
IV. Legal Basis for the Rulemaking
This rule is based primarily on Title V, Subtitle A of the FAST
Act, Public Law 114-94, 129 Stat. 1312, 1514-1534 (2015), which
consolidated several of FMCSA's financial assistance programs and
authorized program funding levels through fiscal year (FY) 2020. Key
provisions, effective FY 2017, include section 5101, which amended 49
U.S.C. 31102, consolidating the former New Entrant, Performance and
Registration Information Systems Management (PRISM), Safety Data
Improvement Program, and Border Enforcement grant programs into the
revised MCSAP formula grant. In addition, it established the High
Priority Program as a separate discretionary financial assistance
program for qualifying entities and projects relating to motor carrier
safety and Innovative Technology Deployment. Section 5101 also amended
49 U.S.C. 31104, which prescribes, among other things, authorized
funding levels through FY 2020, the minimum Federal funding share
applicable to these (and other) FMCSA financial assistance programs,
and the periods of time in which awarded funds may be used.
Section 5106 of the FAST Act (note following 49 U.S.C. 31102)
required the Secretary to appoint a working group, consisting of
prescribed stakeholder interests, to develop and recommend to the
Secretary a new MCSAP allocation formula reflecting specified factors
for the award of MCSAP funds. Following receipt of the working group's
recommendations, the Secretary is required to issue an NPRM. The
working group submitted its report on April 7, 2017, and an addendum to
the report on January 8, 2019. Section 5107 of the FAST Act (note
following 49 U.S.C. 31102) addresses the maintenance of effort
calculations for FY 2017 and subsequent fiscal years until the new
MCSAP allocation formula is in place.
FMCSA has authority under Federal hazardous materials
transportation law, 49 U.S.C. 5101-5128, to require States to cooperate
in the enforcement of Federal hazardous materials safety permit
requirements as a condition to qualify for MCSAP funds. The purpose of
the hazardous materials transportation law is ``to protect against the
risks to life, property, and the environment that are inherent in the
transportation of hazardous material in intrastate, interstate, and
foreign commerce'' (49 U.S.C. 5101). Section 5109(a) provides that a
``motor carrier may transport or cause to be transported by motor
vehicle in commerce hazardous material only if the carrier holds a
safety permit'' issued by FMCSA. The Secretary has authority to
prescribe what hazardous materials require a safety permit (49 U.S.C.
5109(b)). Exercising this authority, this NPRM proposes to clarify that
States are required to cooperate in ensuring carriers transporting
certain hazardous
[[Page 44165]]
materials possess the required FMCSA hazardous materials safety permit
(49 U.S.C. 31102(c)(1)).
FMCSA is authorized to implement these statutory provisions by
delegation from the Secretary in 49 CFR 1.87.
V. Background
A. History of MCSAP
The Surface Transportation Assistance Act of 1982, Public Law 97-
424, 96 Stat. 2097, 2155 (1983), authorized MCSAP. MCSAP is a Federal
financial assistance program that provides formula grants to States
(unless otherwise stated, defined in this proposed rule to include the
Territories and the District of Columbia) to reduce the number and
severity of injuries and the number of fatalities resulting from
crashes involving CMVs and to promote the safe transportation of
passengers and hazardous materials. MCSAP funds are essential to
maintaining FMCSA's national CMV safety enforcement programs, and those
of States. MCSAP establishes the conditions to participate in the
program and promotes the adoption and uniform enforcement of State
safety rules, regulations, and standards that are compatible with the
Federal Motor Carrier Safety Regulations (FMCSRs) and Federal Hazardous
Materials Regulations (HMRs) for both interstate and intrastate motor
carriers and drivers.\3\
---------------------------------------------------------------------------
\3\ The program was subsequently modified by the Intermodal
Surface Transportation Efficiency Act of 1991, Public Law 102-240,
4002, 105 Stat. 1914, 2140 (1991); the ICC Termination Act of 1995,
Public Law 104-88, 104(a), 109 Stat. 803, 918 (1995); the
Transportation Equity Act for the 21st Century, Public Law 105-178,
4003(b), (c), 112 Stat. 107, 395 (1998); the Motor Carrier Safety
Improvement Act of 1999, Public Law 106-159, 207, 113 Stat. 1748,
1764 (1999); the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users, Public Law 109-59,
4106, 4307(b), 119 Stat. 1144, 1717, 1774 (2005); and the Moving
Ahead for Progress in the 21st Century Act, Public Law 112-141, 126
Stat. 405 (2012). The most recent modifications to MCSAP were
enacted as part of Title V, Subtitle A of the FAST Act, Public Law
114-94, 129 Stat. 1312, 1514-1534 (2015).
---------------------------------------------------------------------------
Before FY 2017, MCSAP consisted of the Basic Program funds and
Incentive funds calculated using a formula, and set-asides for the
discretionary High Priority and New Entrant grant programs. Until a new
MCSAP allocation formula is implemented, the Basic Program funds and
Incentive funds ensure that FMCSA and States continue to work in
partnership to establish programs to improve motor carrier, CMV, and
driver safety to support a safe and efficient transportation system.
The Basic Program funds currently distribute MCSAP funds
proportionally to States using the following four, equally-weighted
factors:
(1) 1997 road miles (all highways) as defined by the Federal
Highway Administration (FHWA);
(2) Vehicle miles traveled (VMT) as defined by the FHWA;
(3) Population based on annual census estimates issued by the U.S.
Census Bureau; and
(4) Special fuel consumption (net after reciprocity adjustment) as
defined by the FHWA.
The Incentive funds are a portion of MCSAP funds distributed to
States, but not to the Territories. A State's share of the Incentive
funds is based on:
(1) Reduction of large truck-involved fatal crashes;
(2) Reduction of large truck-involved fatal crash rate or
maintenance of a large truck-involved fatal crash rate that is among
the lowest 10 percent among MCSAP recipients;
(3) Uploads of CMV crash reports in accordance with current FMCSA
policy;
(4) Verification of commercial driver's licenses during
inspections; and
(5) Uploads of CMV inspection data in accordance with FMCSA policy.
The High Priority Program was a set-aside of MCSAP funds with an
authorization level of up to $15 million prior to FY 2017. Eligible
recipients included State agencies, local governments, and
organizations representing government agencies that used and trained
qualified officers and employees in coordination with State motor
vehicle safety agencies. FMCSA provided High Priority Program funds to
enable recipients to carry out enforcement activities and projects that
improved CMV safety and compliance with CMV regulations. Funding was
also available for projects that were national in scope, increased
public awareness and education, demonstrated new technologies, and
reduced the number and rate of CMV crashes. The grant period of
performance was the fiscal year of obligation and the next fiscal year.
The New Entrant grant program was also a set-aside of MCSAP funds
with an authorization level of up to $32 million prior to FY 2017.
Eligible recipients included State agencies and local governments. The
grant program funded safety audits on new entrant motor carriers to
ensure that they had effective safety management programs. The grant
period of performance was the fiscal year of obligation and the next
fiscal year.
The Border Enforcement Grant (BEG) program was a standalone grant
program with an authorization level of up to $32 million prior to FY
2017. FMCSA provided BEG program funds to eligible recipients, which
included State governments or entities that share a land border with
Canada or Mexico and any local government or entity in that State, for
carrying out border CMV safety programs and related enforcement
activities and projects. The grant period of performance was the fiscal
year of obligation and the next fiscal year.
The PRISM program was a standalone grant program with an
authorization level of up to $5 million prior to FY 2017. Eligible
recipients included State agencies, the District of Columbia, Puerto
Rico, and the Territories. FMCSA provided PRISM funds to enable
recipients to link State CMV registration and licensing systems with
Federal motor carrier safety information systems. The grant period of
performance was from the date of execution through the award end date,
as provided in the grant agreement.
The Safety Data Improvement Program was a standalone grant program
with an authorization level of up to $3 million prior to FY 2017.
Eligible recipients included State governments such as departments of
public safety, departments of transportation, or State law enforcement
agencies in any State, the District of Columbia, Puerto Rico, and the
Territories, or any agency or instrumentality of a State exclusive of
local governments. FMCSA provided Safety Data Improvement Program funds
to eligible recipients that collected, analyzed, and reported large
truck and bus crash and inspection data to improve the quality of the
CMV data reported by States to FMCSA. The grant period of performance
was from the date of execution through the award end date, as provided
in the grant agreement.
The Commercial Vehicle Information Systems and Networks (CVISN) was
a standalone grant program with an authorization level of up to $25
million prior to FY 2017. Eligible recipients included agencies of
States, the District of Columbia, Puerto Rico, and the Territories.
FMCSA provided funding to advance technological capability and promote
the deployment of intelligent transportation systems applications for
commercial vehicle operations, including CMV, commercial driver, and
carrier-specific information systems and networks. The grant period of
performance was from the date of execution through the award end date,
as provided in the grant agreement.
B. FAST Act
The FAST Act restructured FMCSA's financial assistance programs. It
created a standalone High Priority Program that
[[Page 44166]]
is a competitive financial assistance program. It has two major
purposes: (1) Supporting, enriching, and augmenting activities related
to motor carrier safety; and (2) promoting Innovative Technology
Deployment. The Innovative Technology Deployment program modifies and
replaces FMCSA's Commercial Vehicle Information Systems and Networks
program. The Safety Data Improvement Program and PRISM, which were
previously standalone grant programs, were merged into both the High
Priority Program and MCSAP. The New Entrant grant program and
standalone BEG were also merged into MCSAP.
Section 5106(d) of the FAST Act prescribed the MCSAP interim
funding formula for FY 2017 and later fiscal years, as necessary. The
interim formula uses the MCSAP funding formula used in FY 2016 plus the
average funding awarded to a State in FYs 2013, 2014, and 2015 for BEG
and New Entrant program grant funds. Subject to the availability of
funding and notwithstanding fluctuations in the data elements, the
initial amounts in FY 2017 were adjusted to ensure that, for each
State, the amount provided while using the interim formula was not less
than 97 percent of the average amount of funding received in FYs 2013,
2014, and 2015, or other equitable amounts.
In FY 2018, FMCSA awarded $294,416,500 for MCSAP formula grants
using the interim formula, and $42,424,178 for the High Priority
Program through a competitive financial assistance process. Additional
information on the Agency's financial assistance programs may be found
at https://www.fmcsa.dot.gov/mission/grants.
The FAST Act added 49 U.S.C. 31102(f), which created additional
allowances for States when determining their average levels of
expenditure for purposes of the MCSAP-required maintenance of
effort.\4\ States may exclude expenditures for activities related to
border enforcement and new entrant safety audits. In addition, section
5107 of the FAST Act permits States to request a one-time adjustment to
their maintenance of effort baselines in the first year a new MCSAP
allocation formula is implemented. The adjusted baseline will become
the State's baseline maintenance of effort that is required each fiscal
year as part of the CVSP or annual update. This adjustment eases the
burden on FMCSA's State partners by accounting for the potentially
increased match requirements under MCSAP grant consolidation. States
must request this adjustment before September 30 of the fiscal year in
which the new formula is implemented. Furthermore, if a State
subsequently identifies new information, the State may request a
modification to its maintenance of effort baseline (49 U.S.C.
31102(f)(2)).
---------------------------------------------------------------------------
\4\ Each fiscal year, a State must maintain the average
aggregate expenditure (maintenance of effort) of the Lead State
Agency, exclusive of Federal funds and State matching funds, for CMV
safety programs eligible for MCSAP funding at a level at least equal
to the average level of that expenditure for fiscal years 2004 and
2005.
---------------------------------------------------------------------------
C. FAST Act Omnibus Rule
On October 14, 2016, FMCSA published a final rule titled
``Amendments To Implement Grants Provisions of the Fixing America's
Surface Transportation Act'' (81 FR 71002). That rule made
nondiscretionary, ministerial changes to FMCSA regulations, consistent
with the FAST Act. For example, it consolidated the BEG, New Entrant
grant, and parts of the Safety Data Improvement Program, PRISM, and
Innovative Technology Deployment grants into the MCSAP formula grant.
This grant consolidation reduced the administrative burden on eligible
recipients, provided more flexibility to eligible recipients, and
streamlined the grant application process. In addition, the rule
required that each State establish and maintain a new entrant safety
audit program as a condition of MCSAP funding. To continue to receive
MCSAP funding for border enforcement, eligible States were required to
maintain a border enforcement program. Furthermore, FMCSA amended its
regulations to remove the requirement for an annual CVSP. This change
allowed States to use a 3-year CVSP, but did not require it (discussed
in full below). Finally, the rule provided that lead State agencies
(i.e., those State agencies responsible for MCSAP administration) are
not eligible to apply for High Priority Program funds for Safety Data
Improvement Program and PRISM capabilities, unless such projects exceed
the minimum requirements.
D. MCSAP Formula Working Group
The FAST Act required the Secretary to establish a working group to
analyze requirements and factors to recommend a new MCSAP allocation
formula to the Secretary. The FAST Act mandated that the group be
composed of representatives from State CMV safety agencies, an
organization representing State CMV enforcement agencies, FMCSA, and
any other persons that the Secretary considered necessary for the
development of a new MCSAP allocation formula. Congress mandated that
State safety agency participation make up at least 51 percent of the
working group and exempted the group from the Federal Advisory
Committee Act.
FMCSA requested applications for working group members through a
notice posted on the Agency's website and through direct solicitation
of MCSAP lead State agencies. An FMCSA panel reviewed applications and
recommended applicants who would create a diverse working group, taking
into consideration a State's location and size.
The working group was established in March 2016. It held six in-
person meetings and several web conferences to discuss various factors
and issues relevant to the creation of a new MCSAP allocation formula.
The working group created a web page \5\ that contains meeting
summaries for both in-person and web-based discussions.
---------------------------------------------------------------------------
\5\ See www.fmcsa.dot.gov/mission/grants/fast-act-mcsap-formula-working-group.
---------------------------------------------------------------------------
To develop its recommendation, the working group used the following
guiding principles and agreed the new formula should:
Be safety-based (primary objective);
Improve the previous formula;
Address FAST Act grant changes;
Meet FAST Act formula requirements;
Promote stability in funding;
Respond to changes in States' exposure to crashes; and
Use quality data sources.
In applying these principles, the working group studied the current
allocation formula's design and data elements and used it as a
baseline. To improve motor carrier safety, the primary consideration
was to develop a new MCSAP allocation formula that provides States with
an appropriate level of funding based on exposure to crashes. The
working group chose to base the formula on factors correlated with
crashes, rather than the number of crashes itself, because using CMV
crashes as a factor in the allocation formula has undesired impacts,
such as punishing States for having an effective CMV safety program.
The working group applied a variety of analytical methods to:
Identify areas in the current formula to improve;
Create alternative formula designs; and
Evaluate impacts of the proposed formulas with respect to
the guiding principles.
The analytical methods used by the working group are described in
the working group's report and the
[[Page 44167]]
appendices. These methods include, but are not limited to:
Analyzing the correlation between each proposed factor and
the next year's CMV crashes using linear regression. (Note that this
was tested over the course of 5 years for each factor to ensure
consistency in the results.)
Generating and evaluating histograms of changes in
proposed formula factors over time to quantify the stability of each
potential formula factor.
Experimenting with different formula structures (e.g.,
assigning different weights to each factor).
Generating simulated formula allocation results with each
iteration of the proposed formula to understand and evaluate the
impacts of each proposed change.
The working group submitted a report titled ``Recommendations to
the U.S. Department of Transportation for the Development of the New
MCSAP Grant Allocation Formula'' to FMCSA, which was received on April
7, 2017. FMCSA reviewed the report and agreed with the majority of the
working group's recommendations. To facilitate additional input from
the working group and transparency in the development of a new MCSAP
allocation formula, the FMCSA Administrator requested that the working
group reconvene for further deliberation on three of its
recommendations. The working group submitted an addendum to its report
on January 8, 2019. A full discussion of this process can be found
below. Copies of the report and addendum are included in the docket.
E. Voluntary Implementation of CVSPs
Section 5101 of the FAST Act requires the Secretary to prescribe
procedures for a State to submit a multi-year CVSP with annual updates
for MCSAP grants. In a Federal Register notice published on October 27,
2016, FMCSA asked 14 questions to assist the Agency in developing an
information technology system format and procedures for submission of
such a CVSP (81 FR 74862). FMCSA considered comments in response to the
Federal Register notice,\6\ the status of the working group's
recommendation, and necessary electronic CVSP (eCVSP) tool
modifications. As a result, the Agency created a CVSP with a 3-year
plan cycle.
---------------------------------------------------------------------------
\6\ 83 FR 691 (January 5, 2018).
---------------------------------------------------------------------------
The Agency elected to test both the 3-year CVSP and revised eCVSP
tool. The Agency sought volunteers and selected 18 States and 1
Territory to complete a 3-year CVSP for FY 2018. The selection of
volunteers was based on geography, program size, and programmatic
structure variety to allow the Agency to fully test the functionality
of the CVSP. The 3-year plan cycle for this first group of States
included FYs 2018, 2019, and 2020.
Using the experience and feedback of the 3-year CVSP users, FMCSA
made modifications to the CVSP and eCVSP tool prior to the FY 2019
MCSAP application. FMCSA worked with the second group of 13 volunteer
States to submit their CVSPs by August 1, 2018. The 3-year plan cycle
for this second group of States is FYs 2019, 2020, and 2021. States
that did not move to 3-year CVSPs for FY 2018 or FY 2019 were required
to submit an annual CVSP by August 1, 2018.
FMCSA notes that the remaining States voluntarily submitted a 3-
year CVSP by August 1, 2019. This third group of States completed their
CVSPs for FYs 2020, 2021, and 2022.
FMCSA expects that States will remain on one of these 3-year
planning cycles. For example, States that began submitting 3-year CVSPs
in FY 2017 for FY 2018-20 grants will submit a 3-year CVSP again in
2020 for the FY 2021-23 grants.
VI. Discussion of the Proposed Rulemaking
A. Separation of MCSAP and the High Priority Program Provisions
This NPRM proposes to separate the regulations governing MCSAP and
the standalone High Priority Program created by the FAST Act.
Currently, the regulatory provisions for MCSAP and the High Priority
Program are intermingled. This NPRM proposes to organize the programs
into distinct regulatory subparts under 49 CFR part 350 to reflect the
relevant information for each program. This separation would make it
easier to find needed regulatory information. For MCSAP, the
regulations have been reorganized and modified to comply with FAST Act
requirements, provide clarity, and remove redundancies. For the High
Priority Program, the regulations have been modified to clarify
eligibility conditions.
The Agency proposes to implement the changes to FMCSA's financial
assistance programs required by the FAST Act beginning October 1, 2019,
for FY 2020. However, consistent with section 5101(a) of the FAST Act
and a prior rulemaking implementing select provisions of the FAST Act
(81 FR 71002, October 14, 2016), mandatory participation in PRISM
remains October 1, 2020 (49 U.S.C. 31102(c)(2)(Z)).
B. Proposed MCSAP Allocation Formula
Working Group Recommendation
The working group recommended that the formula consist of three
separately calculated components: A Territory Component, Basic
Component, and Border Component. As further explained below, the
working group also recommended terminating the MCSAP Incentive Program.
The new MCSAP allocation formula recommended by the working group
makes several improvements to the current formula. The FAST Act
outlined several factors for the working group to consider.\7\ The
working group analyzed objective safety data and other information
prior to making its MCSAP allocation formula recommendation. Various
methods of research and analysis were used to understand each area of
improvement, create alternative formula designs, and evaluate their
impacts with respect to the guiding principles. These efforts included:
---------------------------------------------------------------------------
\7\ These factors must reflect, at a minimum ``(1) the relative
needs of the States to comply with section 31102 of title 49, United
States Code; (2) the relative administrative capacities of and
challenges faced by States in complying with that section; (3) the
average of each State's new entrant motor carrier inventory for the
3-year period prior to the date of enactment of this Act; (4) the
number of international border inspection facilities and border
crossings by commercial vehicles in each State; and (5) any other
factors the Secretary considers appropriate.'' See Sec. 5106(c) of
the FAST Act, Public Law 114-94, 129 Stat. 1312, 1531 (2015).
---------------------------------------------------------------------------
Identifying and obtaining data sources.
Evaluating data sources to determine if they met the
criteria for formula inclusion, e.g., through statistical analysis.
Reviewing and considering programmatic needs and trends.
Understanding the varying administrative needs of grant
recipients.
Understanding the investments that recipients made with
grant funding (e.g., personnel and benefits, contract services,
equipment, etc.).
Reviewing published reports by the Office of the Inspector
General (OIG), the National Research Council (NRC), and a previous
MCSAP formula evaluation by Oak Ridge National Laboratory.
Conducting simulations to evaluate funding impacts.
The working group's recommended MCSAP allocation formula includes
only those factors that are most highly correlated with a State's total
CMV crashes, have data that are reliably obtainable, and meet the
objectives mandated by the FAST Act.
With respect to the Territory Component, the data used to calculate
[[Page 44168]]
the Basic Component (discussed below) is not available for the
Territories, defined as American Samoa, the Commonwealth of the
Northern Mariana Islands, Guam, and the Virgin Islands. Thus, the
working group originally recommended that the Territories have a
separate component that allocates a maximum of 0.65 percent of
available MCSAP funds among these Territories. The allocation would be
based on FMCSA's assessment of each Territory's proposed CMV projects
and costs included in its CVSP. The working group recommended a funding
floor to ensure that Territories would receive a minimum amount to
maintain an effective program, and it tasked FMCSA with establishing
this floor.
The Basic Component allocates funding to States, which includes the
District of Columbia and Puerto Rico, based on factors that are highly
correlated with the State's total CMV crashes. This allocation, as
originally proposed by the working group, would represent at least
89.85 percent of available MCSAP funds, plus any unallocated Border and
Territory Component amounts. The Basic Component allocation calculates
a proportion for each State based on the following five equally-
weighted factors, using the most recent data available:
(1) National Highway System Road Length--total National Highway
System roadway miles contained within the jurisdictional boundaries of
the State as measured by the FHWA;
(2) Total VMT--total VMT for all vehicles within the State as
measured by the FHWA;
(3) Total Population--U.S. Census Bureau population estimates;
(4) Special Fuel Consumption--total consumption of special fuels
within the State as measured by the FHWA; and
(5) Motor Carrier Registrations--the number of interstate carriers
and intrastate hazardous materials carriers as measured by FMCSA to
address a FAST Act requirement on new entrant carriers.
To equally weight the factors, each State's percentage of the
national total for each factor would be determined. Then, the five
percentages for each State are combined to result in the State's
percentage.
While the new Basic Component includes all the factors included in
the current formula, the working group proposed an update to an
existing factor and one addition. For example, the existing formula
factor of 1997 road miles is removed, and it is replaced with the more
current National Highway System highway miles, which would be updated
as new data becomes available (versus the static factor of 1997). Not
only does the National Highway System miles formula factor provide a
more recent measurement of roadway exposure, it is also more highly
correlated with CMV crashes. The working group recommended adding
carrier registrations to the Basic Component as a new factor because of
its stability over time, correlation with crashes, and ability to
account for new entrant safety audit workload (a FAST Act mandated
MCSAP requirement).
The working group recommended adjustments to the proportions
calculated under the Basic Component to ensure that each State receives
at least 0.44 percent, but no more than 4.944 percent, of the MCSAP
funds available for the Basic Component. After adjustment, each State's
percentage would be multiplied by the total MCSAP funds available for
the Basic Component to determine the dollar value of the State's
allocation under the Basic Component.
In addition, the working group recommended eliminating the existing
MCSAP Incentive funds in favor of a risk-based \8\ and consistent
formula in alignment with the goals of the working group and the FAST
Act. The working group stated that funding can have a greater safety
impact by allocating it to recipients who need it to address safety
issues, rather than when it is used as an incentive for certain program
areas. Furthermore, according to the working group, the existing
program-oriented incentive factors are no longer relevant. In the past,
they have helped improve compliance in certain program areas
(especially data quality), but those areas are no longer the focus for
improvement (almost all States have good data quality now). Finally,
the working group noted that the FAST Act expanded MCSAP participation
requirements so that program aspects that previously required
incentivizing are now basic participation requirements. Thus, State
performance in reaching safety objectives can be assessed through
effective performance management techniques employed by FMCSA. To this
end, FMCSA continues to modernize its existing Analysis and Information
resources used to monitor MCSAP, and has instituted a performance,
standards and benchmarks initiative with States to develop additional
performance metrics, trend analysis, and reporting tools.
---------------------------------------------------------------------------
\8\ The working group intended the term ``crash risk'' to refer
to a State's total number of crashes expected to occur during a
year, and not a crash rate. See Part II, Section 3D, and Part III,
Section 2A of the report.
---------------------------------------------------------------------------
The Border Component aims to maintain safety gains attained through
border CMV enforcement programs and to support continued performance of
CMV safety inspections, traffic enforcement, and other activities
pertaining to vehicles engaged in international commerce or occurring
near our borders with Canada and Mexico. To provide adequate resources,
the working group originally recommended that the Border Component
should allocate a maximum of 9.5 percent of available MCSAP funds to
border States.
Because funding for border activities is mostly used to pay for
personnel conducting border activities, the funding would be allocated
based on relative need for personnel in the southern and northern
border States. The need for personnel would be estimated based on the
volume of annual CMV crossings at each port of entry and represented as
full-time employees (FTE).
The personnel needed at each port of entry would be calculated as
follows:
(1) Allocate the minimum required FTE to each port of entry:
(a) 8 FTE per each Mexican port of entry.
(b) 0.25 FTE per each Canadian port of entry with more than 1,000
annual CMV crossings.
(2) Allocate FTEs according to annual CMV crossings (if not already
covered by the minimum):
(a) 25,000 crossings per FTE for Mexican ports of entry.
(b) 200,000 crossings per FTE for Canadian ports of entry.
The FTEs at all ports in a border State would be totaled and
divided by the national total of FTEs, as demonstrated by a percentage.
There would be a minimum (0.075 percent) and maximum (50 percent)
funding limit established to ensure equitable distribution of grant
dollars among States sharing a land border with Canada or Mexico. Each
border State's percentage would be multiplied by the total border
allocation amount available to determine the dollar amount.
The new MCSAP allocation formula would include hold-harmless and
cap provisions to ensure stable funding over fiscal years, which would
apply to a State's total share of MCSAP funds allocated under the Basic
and Border Components. The hold-harmless provision would be based on
shares rather than dollar amounts. A State would receive no less than
97 percent and no more than 105 percent of its prior year's share of
MCSAP funding. Neither the hold-harmless nor the cap would apply to
Territories.
[[Page 44169]]
FMCSA agreed with the majority of the working group's
recommendations, but requested that the working group reconvene for
further deliberation on three of its recommendations. They related to
the percentages of MCSAP funds allocated to the Territory and Border
Components, and the maximum amount of the Border Component that a State
could receive.
FMCSA questioned the percentage of total MCSAP funds allocated to
the Territory Component. FMCSA determined that the current level of
$350,000 per Territory (which equated to approximately 0.49 percent)
adequately addresses the CMV safety needs in most of the Territories.
Therefore, allocating 0.65 percent of the total MCSAP funds would
exceed the amount necessary for most Territories to conduct their CMV
safety programs.
FMCSA also suggested increasing the percentage of total MCSAP funds
allocated to the Border Component from a maximum of 9.5 percent to 11
or 12 percent. This suggestion was made due to increased border
activity in recent years and several recent policy changes, including
the renegotiation of trade agreements, that may impact border activity.
In addition, an allocation of 11 percent would maintain current Federal
funding levels and an allocation of 11 or 12 percent would still align
with CMV crashes.
Finally, FMCSA suggested removing the 50 percent maximum limit on
the amount of the Border Component a State could receive. This
suggestion was made because the 50 percent limit would not meet the
growing needs of the State with the most border activity.
The working group reconvened and met four times via interactive web
conferences to consider FMCSA's concerns. A process that was similar to
the one used to develop the original recommendations was followed. The
working group discussed the questions raised by FMCSA in relation to
the original recommendations and the various options that were
considered during the group's deliberations. Additional data relating
to discretionary funding for border activities, with accompanying match
requirements, prior to the FAST Act, as well as financial performance
metrics and fund utilization for Territorial jurisdictions, was
analyzed so the working group could understand and evaluate the
potential impact of FMCSA's suggestions. All of FMCSA's suggestions
were evaluated based on the established guiding principles.
The working group concurred, based on the information provided by
FMCSA, that an allocation of not more than 0.49 percent for the
Territory Component adequately addresses CMV safety needs in the
Territories. With respect to the Border Component allocation, the group
agreed that an increase in the maximum allocation to 11 percent
maintained Federal funding levels that were based on border enforcement
needs and that the group's recommendation should be adjusted
accordingly. The working group continued to find that a border maximum
is necessary to maintain the balance of the funding levels between
larger and smaller border States and to promote funding stability. An
increase to a maximum of 55 percent was recommended because it meets
the current needs of the State with the most border activity.
FMCSA's Proposed MCSAP Allocation Formula
FMCSA has reviewed the amended recommendations provided by the
working group, agrees with the rational for the proposed changes, and
is adopting them in full. In this NPRM, FMCSA proposes a new MCSAP
allocation formula as Sec. 350.217. FMCSA proposes to adopt the
working group's three components: A Territory Component; Border
Component; and State Component.\9\
---------------------------------------------------------------------------
\9\ FMCSA proposes changing the name of the ``Basic Component''
to the ``States Component'' to provide a distinction between the
proposed formula and the interim formula.
---------------------------------------------------------------------------
FMCSA supports establishing a separate Territory Component and the
set-aside of not more than 0.49 percent of MCSAP funds for Territories.
FMCSA proposes that each territory receive no less than $350,000, with
the remaining MCSAP funds allocated among Territories in a manner
proportional to the Territories' populations, as reflected in the
decennial census issued by the U.S. Census Bureau.
FMCSA proposes establishing a separate Border Component, using the
formula that the working group recommended. Therefore, a maximum of 11
percent of MCSAP funds would be allocated to the Border Component with
each border State receiving at least 0.075 percent but no more than 55
percent of the total border allocation available. Additionally, FMCSA
proposes using the term ``share'' instead of the term ``FTE'' used by
the working group, because FMCSA does not want to inadvertently imply
how many personnel should be employed at each port of entry as part of
the funding allocation.
Under the share calculation, border States would receive 1 share
per 25,000 annual CMV crossings at each United States port of entry on
the Mexican border, with a minimum of 8 shares for each United States
port of entry on the Mexican border, or 1 share per 200,000 annual CMV
crossings at each United States port of entry on the Canadian border,
with a minimum of 0.25 shares for each United States port of entry on
the Canadian border with more than 1,000 annual CMV crossings.
FMCSA proposes establishing a State Component using the working
group's Basic Component formula. At least 88.51 percent of MCSAP funds
would be set aside for this component.
The table below shows estimated FY 2020 awards to each State and
Territory under the interim funding formula, as prescribed by the FAST
Act, and the new proposed formula. The FY 2020 FAST Act authorized
amount of $304,069,500 (after a 1.5 percent administrative takedown
fund set-aside) was used to calculate the estimated awards. The Agency
calculated the estimated funding for FY 2020 using the FY 2018 formula
factor data, which was the most recent available at the time of
calculation. Data used to calculate the formula may change each year so
the funding shown is an estimated amount at that point in time. Please
note the below table also provides an estimation of percentage
difference in funding allotment comparing the interim formula to the
proposed new formula (using estimated FY 2020 dollars). The hold-
harmless and cap provisions proposed in this NPRM would mitigate any
gain or loss in funding from the previous year's formula calculation.
For example, if the newly proposed formula were implemented in FY 2020,
no State would lose more than 3 percent, or gain more than 5 percent,
compared to their share of the formula grant calculation in FY 2019.
Therefore, the estimated FY 2020 funding shown in the table is not
guaranteed.
[[Page 44170]]
Estimated MCSAP Funding Formula Comparison a b
--------------------------------------------------------------------------------------------------------------------------------------------------------
Including Oregon Excluding Oregon
-----------------------------------------------------------------------------------------------
FY 2020 FY 2020
estimated estimated
State/territory FY 2020 MCSAP formula FY 2020 MCSAP formula
estimated award (new Percent estimated award (new Percent
interim formula as difference interim formula as difference
formula awards proposed by formula awards proposed by
FMCSA) FMCSA)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alabama................................................. $5,981,155 $5,965,678 0 $6,084,689 $5,965,678 -2
Alaska.................................................. 1,269,196 1,257,326 -1 1,269,068 1,257,326 -1
American Samoa.......................................... 350,000 350,000 0 350,000 350,000 0
Arizona................................................. 11,234,838 10,804,840 -4 11,332,514 10,804,840 -5
Arkansas................................................ 4,371,959 4,138,170 -5 4,448,908 4,138,170 -7
California.............................................. 18,590,048 19,145,982 3 18,587,874 19,368,217 4
Colorado................................................ 4,906,099 4,950,448 1 4,994,077 5,103,801 2
Connecticut............................................. 2,393,631 2,527,768 6 2,434,316 2,527,768 4
Delaware................................................ 1,251,260 1,166,066 -7 1,250,776 1,179,601 -6
District of Columbia.................................... 1,092,231 1,118,593 2 1,091,747 1,118,593 2
Florida................................................. 12,706,226 13,102,346 3 12,704,051 13,254,430 4
Georgia................................................. 10,223,708 10,443,179 2 10,394,519 10,443,179 0
Guam.................................................... 350,000 439,941 26 350,000 439,941 26
Hawaii.................................................. 1,066,679 1,099,298 3 1,066,422 1,099,298 3
Idaho................................................... 2,500,201 2,436,607 -3 2,541,685 2,436,607 -4
Illinois................................................ 11,177,027 11,285,176 1 11,359,365 11,634,765 2
Indiana................................................. 7,600,938 7,286,679 -4 7,728,822 7,286,679 -6
Iowa.................................................... 5,004,354 4,837,215 -3 5,087,635 4,837,215 -5
Kansas.................................................. 4,504,320 4,458,505 -1 4,584,021 4,458,505 -3
Kentucky................................................ 4,736,164 4,686,676 -1 4,819,511 4,784,186 -1
Louisiana............................................... 4,502,334 4,346,759 -3 4,581,061 4,346,759 -5
Maine................................................... 1,815,663 1,751,636 -4 1,842,792 1,751,636 -5
Maryland................................................ 3,898,791 4,175,980 7 3,970,778 4,175,980 5
Massachusetts........................................... 4,437,614 4,604,630 4 4,514,021 4,604,630 2
Michigan................................................ 8,663,352 8,967,604 4 8,805,741 9,224,388 5
Minnesota............................................... 6,711,732 6,422,249 -4 6,824,363 6,453,904 -5
Mississippi............................................. 4,008,984 3,893,741 -3 4,079,776 3,994,903 -2
Missouri................................................ 6,892,605 6,844,323 -1 7,014,924 6,975,820 -1
Montana................................................. 3,063,123 2,994,454 -2 3,102,581 2,994,454 -3
Nebraska................................................ 3,650,919 3,626,881 -1 3,709,539 3,626,881 -2
Nevada.................................................. 2,596,460 2,584,009 0 2,643,932 2,664,056 1
New Hampshire........................................... 1,352,053 1,343,600 -1 1,351,569 1,384,743 2
New Jersey.............................................. 7,038,352 6,943,724 -1 7,140,767 7,158,824 0
New Mexico.............................................. 4,002,101 4,107,636 3 4,058,337 4,107,636 1
New York................................................ 13,199,642 12,842,509 -3 13,412,776 13,226,416 -1
North Carolina.......................................... 8,730,173 8,972,029 3 8,880,140 9,249,962 4
North Dakota............................................ 2,889,717 2,696,955 -7 2,934,189 2,696,955 -8
Northern Marianas....................................... 350,000 350,000 0 350,000 350,000 0
Ohio.................................................... 10,070,415 9,781,884 -3 10,250,889 10,046,336 -2
Oklahoma................................................ 5,927,263 5,769,781 -3 6,025,865 5,769,781 -4
Oregon.................................................. 3,745,475 3,946,430 5 - - -
Pennsylvania............................................ 10,038,363 10,424,935 4 10,214,498 10,424,935 2
Puerto Rico............................................. 1,172,803 1,166,066 -1 1,195,818 1,179,601 -1
Rhode Island............................................ 1,356,289 1,300,175 -4 1,355,805 1,300,175 -4
South Carolina.......................................... 4,824,547 4,796,236 -1 4,910,771 4,944,812 1
South Dakota............................................ 2,359,346 2,253,064 -5 2,400,857 2,253,064 -6
Tennessee............................................... 6,630,299 6,489,424 -2 6,743,955 6,683,303 -1
Texas................................................... 30,695,205 31,217,150 2 30,693,031 31,579,500 3
Utah.................................................... 3,093,422 3,085,281 0 3,147,010 3,085,281 -2
Vermont................................................. 1,212,839 1,298,730 7 1,212,647 1,298,730 7
Virgin Islands.......................................... 350,000 350,000 0 350,000 350,000 0
Virginia................................................ 6,760,878 6,895,938 2 6,879,407 7,109,558 3
Washington.............................................. 6,566,316 6,457,545 -2 6,664,872 6,457,545 -3
West Virginia........................................... 2,297,186 2,171,592 -5 2,335,720 2,238,863 -4
Wisconsin............................................... 6,439,562 6,188,280 -4 6,548,726 6,363,493 -3
Wyoming................................................. 1,415,639 1,507,775 7 1,442,339 1,507,775 5
-----------------------------------------------------------------------------------------------
Total............................................... 304,069,500 304,069,500 0 304,069,500 304,069,500 0
--------------------------------------------------------------------------------------------------------------------------------------------------------
\a\ Estimated calculations for FY 2020 are shown both with and without the State of Oregon. Note that Oregon did not participate in FY 2019, but it may
re-enter the program in the future.
\b\ Calculation of funds for the proposed formula was made after setting aside 11 percent for the Border Component and 0.49 percent for the Territory
Component of available MCSAP funds, and applying the hold-harmless and cap provisions as explained above.
[[Page 44171]]
C. CVSP
This rulemaking would implement the FAST Act requirement that
States use multi-year CVSPs in proposed Sec. Sec. 350.209 and 350.211.
This NPRM proposes to require that all States submit a CVSP covering a
3-year period. Currently, States are voluntarily submitting CVSPs
covering a 3-year period based upon the Federal Register notice
published on January 5, 2018 (83 FR 691) and the explicit requirement
for the establishment of multi-year plans in section 5101(a) of the
FAST Act (49 U.S.C. 31102(c)(1)).
FMCSA would expect to have approximately one-third of MCSAP
applicants completing 3-year CVSPs in each grant application year, with
the other two-thirds submitting annual updates. States would submit the
3-year CVSP, or the second and third year annual updates, to FMCSA by
the date prescribed in the MCSAP application memorandum for that fiscal
year.
First Year of the CVSP
FMCSA proposes to require that States submit through the eCVSP
online tool the following prior to the first year of the CVSP:
(1) Quantitative objectives regarding the national MCSAP elements
and related State-specific objectives for all 3 years;
(2) Analysis of past performance;
(3) Budget and resource allocation information for the first year
of the CVSP;
(4) Monitoring plan;
(5) List of MCSAP contacts;
(6) Certification of MCSAP conformance;
(7) Annual certification of compatibility;
(8) New or amended laws and regulations relevant to CMV safety; and
(9) Additional information as required in the MCSAP application
memorandum.
Second and Third Years of the CVSP
For the second and third years of the CVSP, States would provide an
annual update, including that year's budget, and revise program goals
and certifications, if needed. States would submit through the eCVSP
online tool the following for the second and third years of the CVSP:
(1) Revised program goals, if needed;
(2) Budget and resource allocation information for the applicable
fiscal year;
(3) List of MCSAP contacts;
(4) Certification of MCSAP conformance;
(5) New or amended laws and regulations relevant to CMV safety;
(6) Annual certification of compatibility; and
(7) Additional information as required in the MCSAP application
memorandum.
D. Performance and Registration Information Systems Management (PRISM)
To be eligible to receive MCSAP funding, each State must fully
participate in PRISM by October 1, 2020, or use an alternative approach
approved by FMCSA for identifying and immobilizing a motor carrier with
serious safety deficiencies. To ``fully participate'' in PRISM, a State
must satisfy the conditions of 49 U.S.C. 31106(b)(3), including the
suspension (or revocation) and denial of a vehicle registration if the
motor carrier responsible for safety of the vehicle is under any
Federal out-of-service order. Therefore, this NPRM reflects the
appropriate changes to MCSAP eligibility in proposed Sec.
350.207(a)(27). However, the requirement for participation in PRISM by
October 1, 2020, does not extend to the Territories, including Puerto
Rico.
E. Authorization and Appropriations Related Changes
The distribution of MCSAP funding is often impacted by FMCSA's
authorizations and appropriations. Thus, a new provision is proposed as
Sec. 350.219 to explain the FMCSA Administrator's discretion (found
generally in 49 U.S.C. 31102) to distribute funding during an extension
of the Agency's authorization or during a period the Agency is
operating under a continuing resolution.
F. Relocation of 49 CFR Part 355--Compatibility of State Laws and
Regulations Affecting Interstate Motor Carrier Operations
This NPRM would relocate relevant requirements of 49 CFR part 355
to part 350. FMCSA proposes this move to improve ease of use of the
regulations and improve understanding of the inter-relationship between
MCSAP and State laws. Remaining provisions of part 355, including the
Appendix, would be eliminated. FMCSA would reserve the current part 355
for future use.
G. 49 CFR Part 385 Subpart E--Hazardous Material Safety Permits
The rule proposes to clarify a State's obligation to cooperate in
the enforcement of hazardous materials safety permits for interstate
and intrastate carriers to transport certain hazardous materials, as
required under subpart E of 49 CFR part 385. These regulations require
a motor carrier to hold a safety permit issued by FMCSA and to keep a
copy of the permit, or other proof of its existence, in the vehicle.
Adding a requirement that States cooperate in the enforcement of
subpart E of part 385 as a condition of MCSAP funding would clarify
States' obligation to document compliance with hazardous materials
permit requirements in the course of inspections that States conduct.
H. Removal of 49 CFR Part 388--Cooperative Agreements With States
FMCSA is proposing to remove 49 CFR part 388, titled ``Cooperative
Agreements with States.'' Part 388 predates MCSAP. Under its current
statutory authority, FMCSA provides financial assistance to States to
address CMV safety and to reduce the number and severity of crashes
involving CMVs. This is conducted primarily through MCSAP, governed by
part 350. While Congress provides funding to support MCSAP, there is no
specific funding source supporting a financial assistance program under
part 388. Thus, FMCSA does not rely on part 388 to enter into
agreements with States to enforce Federal and State safety laws and
regulations concerning motor carrier operations. FMCSA would reserve
part 388 for future use.
I. Other Proposed Changes
Because MCSAP has evolved through multiple authorization and
appropriations acts, the existing regulations are redundant and not
orderly. As stated above, this NPRM proposes an organizational change
that separates MCSAP and the High Priority Program into distinct
regulatory subparts under 49 CFR part 350. This NPRM proposes to
reorganize part 350 so that the program requirements are clearer, more
succinct, and presented chronologically from grant application through
execution.
In addition, definitions would be updated and expanded to reflect
the proposed changes to the grant programs or to otherwise provide
consistency. For example, the definition of ``investigation'' is used
rather than ``compliance review'' to reflect the revised national MCSAP
elements. The definition of ``motor carrier'' in Sec. 350.105 would be
revised to be more consistent with the definition provided in Sec.
390.5T. The definition of ``HMRs'' would be updated to include all of
part 171 concerning HMRs. Specifically, the rule proposes to eliminate
the exception to adopt Sec. Sec. 171.15 and 171.16 by States
participating in MCSAP. This would require those States that choose to
conduct investigations to ensure compliance with the hazardous
[[Page 44172]]
materials incident reporting requirements contained in these sections.
The elimination of this exception to the HMRs would not create a new
State hazardous materials reporting requirement.
FMCSA would clarify in proposed Sec. 350.305(b) that a State may
retain an exemption for a particular segment of the motor carrier
industry from all or part of its laws or regulations that were in
effect before April 1988. However, to retain the exemption, it must
continue to be in effect, it must apply to specific industries
operating in intrastate commerce, and the scope of the original
exemption must not have been amended.
J. Request for Comments
FMCSA is requesting public comment on all provisions being proposed
in this NPRM. Additionally, the Agency is specifically seeking comment
on the following questions.
1. Are there other elements FMCSA should consider including in a
new MCSAP allocation formula and, if so, what are they? Why should such
elements be considered? How would they promote safety?
2. Should there be additional requirements in CVSPs to ensure MCSAP
funding is used efficiently to promote safety and, if so, what are
they? Why should such requirements be considered? How would they
promote safety?
3. Should the Incentive fund be eliminated from a new MCSAP
allocation formula? Why should the Incentive fund be kept or
eliminated? How would keeping or eliminating the Incentive fund promote
safety?
4. Should a new MCSAP allocation formula include variables
connected with crash rates or risk? If so, what variables should be
considered and why? How would such variables promote safety?
4. Should a new MCSAP allocation formula be more sensitive to
changes in crash rates? If so, how could a new allocation formula be
more sensitive to changes in crash rates and why would it be more
sensitive to such changes? How would such a formula promote safety?
VII. International Impacts
The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States Territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries in which they operate, unless an international agreement
states otherwise. Drivers and carriers should be aware of the
regulatory differences among nations.
VIII. Section-by-Section Analysis
In addition to the substantive changes discussed below, FMCSA
proposes stylistic, conforming, and organizational changes to the
proposed rule for the purposes of clarity and consistency.
A. Subpart A--General
Proposed subpart A would provide a general overview and define the
terms used in part 350 applicable to both MCSAP and the High Priority
Program. Furthermore, the Agency proposes to restructure distinct
provisions pertaining to MCSAP and the High Priority Program and codify
them under separate subparts.
Sec. 350.101 What is the purpose of this part?
In this proposal, Sec. 350.101 would be added to provide a general
description of the purpose of part 350.
Sec. 350.103 When do the financial assistance program changes take
effect?
Proposed Sec. 350.103 would be added to specify the effective date
of the financial assistance program changes.
Sec. 350.105 What definitions are used in this part?
FMCSA proposes to add the following definitions to reflect
phraseology used in this rulemaking: ``border State,'' ``FMCSA,''
``High Priority Program funds,'' ``investigation,'' and ``Motor Carrier
Safety Assistance Program (MCSAP) funds.'' The term ``traffic
enforcement,'' which is defined in existing Sec. 350.111, would be
added to this section.
The definition of ``commercial vehicle safety plan (CVSP)'' would
be revised to reflect that States would be required to submit 3-year
CVSPs. FMCSA also proposes to modify the definition of ``motor
carrier'' to more closely reflect the definition in Sec. 390.5T.
Furthermore, FMCSA proposes to modify the definitions of ``FMCSRs'' and
``HMRs'' to reference standards and orders issued under the respective
regulations in order to avoid repeating this phraseology throughout the
regulatory text. Conversely, references to standards and orders would
be added throughout the regulatory text where appropriate when
referring to State laws and regulations for consistency. Finally, in
the definition of ``HMRs,'' the Agency proposes to update the
definition to eliminate the exceptions for Sec. Sec. 171.15 and 171.16
in existing Sec. Sec. 350.337 and 355.5 in order to be consistent with
existing Sec. 350.201(a) and current practice for those States that
conduct investigations. Similarly, the inconsistency in existing Sec.
355.5 concerning the definition of ``HMRs'' as it relates to the
exception to part 107 would be eliminated. Consistent with existing
Sec. 350.337, the proposed definition would include subparts F and G
of part 107.
The following existing definitions in Sec. 350.105 would be
eliminated because they are not used in this proposal: ``10-year
average accident rate,'' ``Accident rate,'' ``Agency,'' ``Basic Program
Funds,'' ``Incentive Funds,'' ``Innovative Technology Deployment
funds,'' ``Large truck,'' ``Level of effort,'' ``Operating authority,''
and ``Plan.''
The remaining definitions that appear in existing Sec. Sec.
350.105 and 355.5 would be revised for clarity.
B. Subpart B--Motor Carrier Safety Assistance Program Administration
Proposed subpart B would provide an overview of MCSAP only. Content
regarding the High Priority Program would be addressed in proposed
subpart D.
Sec. 350.201 What is MCSAP?
Proposed Sec. 350.201(a) is derived, in part, from existing Sec.
350.101(a), but would add references to PRISM and border enforcement
requirements, as applicable to MCSAP. Proposed Sec. 350.201(b) is
derived without substantive change from existing Sec. 350.103 as it
relates to program requirements. Proposed Sec. 350.201(c) would
incorporate the substantive content from the last sentence of existing
Sec. 350.101(a).
Sec. 350.203 What are the national MCSAP elements?
Proposed Sec. 350.203 is derived, in part, from existing Sec.
350.109. New items (e), (f), (g), and (j) would be added as part of
revisions to MCSAP. Item (d), investigations, would be substituted for
the existing reference to compliance reviews.
Sec. 350.205 What entities are eligible for funding under MCSAP?
Proposed Sec. 350.205 is derived from existing Sec. 350.107(a)
without substantive change. Governmental entities eligible for funding
would be reflected in the definition of ``State.''
Sec. 350.207 What conditions must a State meet to qualify for MCSAP
funds?
Proposed Sec. 350.207(a) is derived, in part, from existing Sec.
350.201, but is reorganized for clarity and to reduce redundancies.
Proposed paragraph (a)(25) would be revised to reflect that
[[Page 44173]]
certain exemptions are granted, not just to individual drivers or
carriers, but to a particular class. Proposed paragraph (a)(28) would
be added to clarify a State's obligation to cooperate in the
enforcement of hazardous materials safety permits. Proposed Sec.
350.207(b) would incorporate the substance of existing Sec. 350.201(z)
relating to third parties conducting new entrant safety audits.
Proposed Sec. 350.207(c) would be added to reflect exceptions
applicable to Territories concerning new entrant safety audits and
participation in PRISM.
Sec. 350.209 How and when does a State apply for MCSAP funds using a
CVSP?
Proposed Sec. 350.209 is derived, in part, from existing Sec.
350.205, but revised to reflect the general requirements for submitting
a 3-year CVSP. It also proposes that the deadline for the CVSP
submission be changed from August 1 to a date that will be stated in
the MCSAP application memorandum. It further proposes that the
Administrator, rather than the Division Administrator, may extend the
CVSP deadline.
Sec. 350.211 What must a State include for the first year of the CVSP?
Proposed Sec. 350.211 is derived, in part, from existing
Sec. Sec. 350.209, 350.211, 350.213, and 350.331(b)(2). This proposed
section would set forth information to be included for the first year
of the CVSP. The required certifications would be consolidated in
proposed paragraph (i) by referring to the conditions a State must meet
to qualify for MCSAP funding in proposed Sec. 350.207. Proposed
paragraph (i)(3) would be added to clarify that the certifying official
must have the necessary authority to certify the CVSP on behalf of the
State. The proposed language would no longer require that a State
training plan be included as part of the CVSP.
Sec. 350.213 What must a State include for the second and third years
of the CVSP?
Proposed Sec. 350.213 would be added to set forth the information
to be submitted in the annual update for the second and third years of
the CVSP.
Sec. 350.215 What response does a State receive to its CVSP or annual
update?
Proposed Sec. 350.215 is derived, in part, from existing Sec.
350.207, but revised to reflect submissions under a 3-year CVSP. FMCSA
would revise the proposed section to reflect current practice that a
State receives a response to the CVSP within 30 days after FMCSA begins
its review of the CVSP, rather than within 30 days of receipt of the
CVSP. It would also clarify circumstances under which States would not
be eligible for MCSAP funding.
Sec. 350.217 How are MCSAP funds allocated?
Proposed Sec. 350.217 sets forth the proposed MCSAP allocation
formula and would replace existing Sec. Sec. 350.313, 350.315,
350.317, 350.323, and 350.327. Under this proposal, the availability of
Basic Program funds and Incentive funds would be incorporated into the
State Component of the proposed formula. The new MCSAP allocation
formula would also add a separate Border Component and a separate
Territory Component.
Sec. 350.219 How are MCSAP funds awarded under a continuing resolution
appropriations act or an extension of FMCSA's authorization?
Proposed Sec. 350.219 would be added to address MCSAP funding
under a continuing resolution appropriations act or an extension of the
Agency's authorization.
Sec. 350.221 How long are MCSAP funds available to a State?
Proposed Sec. 350.221 is derived, in part, from existing Sec.
350.307. Existing regulatory language requiring that funds be expended
in the order that they are obligated would be eliminated because it is
no longer necessary, given that FMCSA requires a fixed period of
performance.
Sec. 350.223 What are the Federal and State shares of costs incurred
under MCSAP?
Proposed Sec. 350.223 would consolidate existing Sec. Sec.
350.303 and 350.305. In paragraph (b), references to 2 CFR part 1201
would be added to accompany the current references to 2 CFR part 200
(OMB's Uniform Administrative Requirements, Cost Principles, and Audit
Requirements for Federal Awards) to reflect that part 1201 addresses
DOT's adoption and implementation of part 200. This reference is made
in similar provisions throughout the proposed regulatory text. Language
would be added in paragraph (c)(2) to clarify circumstances when a
waiver of the State share may be granted.
Sec. 350.225 What MOE must a State maintain to qualify for MCSAP
funds?
Proposed Sec. 350.225 is derived, in part, from existing Sec.
350.301. Language would be added to reflect an additional maintenance
of effort baseline calculation option allowed under section 5101(f) of
the FAST Act, as a one-time adjustment to the maintenance of effort
permitted under section 5107 of the Act. Furthermore, a 120-day time
period would be established for the Agency to evaluate requests for the
maintenance of effort waivers. Finally, a provision would be added
authorizing permanent adjustments after fiscal year 2020, reducing a
State's maintenance of effort requirement, provided that new
information was produced that was unavailable during fiscal year 2020.
Sec. 350.227 What activities are eligible for reimbursement under
MCSAP?
Proposed Sec. 350.227 would be generally the same as existing
Sec. 350.309 substantively, but would reflect the proposed expanded
national program elements and changes to the MCSAP allocation formula.
Sec. 350.229 What specific costs are eligible for reimbursement under
MCSAP?
Proposed Sec. 350.229 is derived from existing Sec. Sec. 350.311,
350.201(cc), and 350.341(h)(3). The list of reimbursable items in
existing Sec. 350.311 would be eliminated as unnecessary in light of
the reference to the MCSAP application memorandum and title 2 of the
CFR. Proposed paragraph (c)(2) would clarify that a State may not use
MCSAP funds for the creation or maintenance of its own State registry
of medical examiners.
Sec. 350.231 What are the consequences for failure to meet MCSAP
conditions?
Proposed Sec. 350.231 would not be substantively changed from
existing Sec. 350.215, but would be modified for clarity.
C. Subpart C--MCSAP Required Compatibility Review
Proposed subpart C would include information related to the MCSAP-
required FMCSR and HMR compatibility review and variances available to
States participating in MCSAP.
Sec. 350.301 What is the purpose of this subpart?
Proposed Sec. 350.301 is derived, in part, from existing Sec.
355.1. This proposed section would add an introductory paragraph for
clarity and paragraph (d) to address the process for requesting
exemptions for intrastate commerce.
Sec. 350.303 How does a State ensure compatibility?
Proposed Sec. 350.303 is derived from existing Sec. Sec. 350.331,
350.333, 355.21, 355.23, 355.25, and, in part, Appendix
[[Page 44174]]
A of part 355. It would consolidate the existing regulations to reduce
redundancies. In proposed paragraph (c), language would be added to
clarify that a review for compatibility must accompany any new or
amended laws submitted to FMCSA in accordance to preferred practice.
Proposed Sec. 350.303(d) is revised to closer track the applicable
statutory provision, 49 U.S.C. 31141. Proposed Sec. 350.303(g)(2),
addressing the opportunity for an administrative hearing, would be
added to reflect a requirement under 49 U.S.C. 31141(d)(2). Language
determined to be obsolete would be eliminated.
Sec. 350.305 What specific variances from the FMCSRs are allowed for
State laws and regulations and not subject to Federal jurisdiction?
Proposed Sec. 350.305 is derived from existing Sec. Sec. 350.341
and 350.345. Language would be added in paragraph (b)(2) to clarify
that the grandfathering of State exemptions issued before April 1988
only applies if the scope of the original exemption has not changed.
Language determined to be obsolete would be eliminated, including Sec.
350.341(g) that addresses grandfather clauses.
Sec. 350.307 How may a State obtain a new exemption for State laws and
regulations for a specific industry involved in intrastate commerce?
Proposed Sec. 350.307 is derived, in part, from existing Sec.
350.343. Existing paragraph (j) would be removed from this section,
given that it has no bearing on safety.
Sec. 350.309 What are the consequences if a State has provisions that
are not compatible?
Proposed Sec. 350.309 is derived from existing Sec. Sec. 350.335
and 355.25(a). The reference to ``interstate'' commerce in Sec.
355.25(a) would be eliminated as inconsistent with the MCSAP
requirements.
D. Subpart D--High Priority Program
The Agency proposes to add a new subpart D, describing the High
Priority Program.
Sec. 350.401 What is the High Priority Program?
Proposed Sec. 350.401 is derived from existing Sec. Sec.
350.101(b) and 350.107(b).
Sec. 350.403 What are the High Priority Program objectives?
Proposed Sec. 350.403 is derived from existing Sec. 350.110. It
would reorganize existing Sec. 350.110 and add an objective to reflect
the Innovative Technology Deployment Program.
Sec. 350.405 What conditions must an applicant meet to qualify for
High Priority Program funds?
Proposed Sec. 350.405 is derived from existing Sec. 350.203 and
would clarify that all applicants must comply with the High Priority
Program Notice of Funding Opportunity (NOFO). The reference to a
State's obligation to provide a match of up to 15 percent under
existing Sec. 350.203(b)(5) would be eliminated as unnecessary in
light of proposed Sec. 350.413(a).
Sec. 350.407 How and when does an eligible entity apply for High
Priority Program funds?
Proposed Sec. 350.407 would not be substantively changed from
existing Sec. 350.206, but would be modified for clarity.
Sec. 350.409 What response will an applicant receive under the High
Priority Program?
Proposed Sec. 350.409 would not be substantively changed from
existing Sec. 350.208, but would be modified for clarity.
Sec. 350.411 How long are High Priority Program funds available to a
recipient?
Proposed Sec. 350.411 would not be substantively changed from
existing Sec. 350.308, but would be modified for clarity.
Sec. 350.413 What are the Federal and recipient shares of costs
incurred under the High Priority Program?
Proposed Sec. 350.413 is derived from existing Sec. 350.303.
Language would be added to clarify circumstances when a recipient share
of costs waiver may be granted.
Sec. 350.415 What types of activities and projects are eligible for
reimbursement under the High Priority Program?
Proposed Sec. 350.415 is derived from Sec. 350.310. It would
cross-reference proposed Sec. 350.403 for the High Priority Program
objectives, rather than listing all eligible activities, for brevity.
Sec. 350.417 What specific costs are eligible for reimbursement under
the High Priority Program?
Proposed Sec. 350.417 is derived, in part, from existing Sec.
350.311. The list of reimbursable items in existing Sec. 350.311 would
be eliminated as unnecessary in light of the reference to the NOFO and
title 2 of the CFR. Proposed paragraph (b)(2) would be added to clarify
that a State may not use High Priority Program funds for the creation
or maintenance of its own State registry of medical examiners.
E. Miscellaneous
The term ``tolerance guidelines'' in existing Sec. 350.339 is no
longer being used; therefore; the section would be removed. This
concept, addressing variances and exemptions that States may permit for
motor carriers, CMV drivers, and CMVs engaged in intrastate commerce
and that are not subject to Federal jurisdiction, is addressed under
proposed Sec. Sec. 350.305 and 350.307. Existing Sec. 350.210,
discussing how an applicant demonstrates that it satisfies the
conditions for High Priority Program funding, would be deleted as
unnecessary in light of proposed Sec. 350.405.
Part 355 of title 49 of the CFR (Compatibility of State Laws and
Regulations Affecting Interstate Motor Carrier Operations) would be
removed and reserved. Substantive provisions of continued effect would
be incorporated into this proposed rule. Remaining provisions of part
355, including the Appendix, would be eliminated. Part 388 (Cooperative
Agreements with States) would be removed and reserved.
IX. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA performed an analysis of the impacts of the proposed rule and
determined it is a significant regulatory action under section 3(f) of
E.O. 12866, Regulatory Planning and Review (58 FR 51735, October 4,
1993), as supplemented by E.O. 13563, Improving Regulation and
Regulatory Review (76 FR 3821, January 21, 2011). Therefore, the
proposed rule requires an assessment of potential costs and benefits
under section 6(a)(3) of that Order. Accordingly, OMB has reviewed it
under that Order. It is also significant within the meaning of DOT
regulatory policies and procedures because the Agency expects there
will be substantial public interest in this rulemaking (DOT Order
2100.6 dated December 20, 2018).
E.O. 12866 directs each agency to identify the problem it intends
to address, as well as the significance of that problem.\10\ OMB
Circular A-4 \11\
[[Page 44175]]
and the accompanying document ``Regulatory Impact Analysis: A Primer''
\12\ provide guidance for how agencies should implement E.O. 12866,
including guidance on identifying and describing the problem that the
regulatory action intends to address, and whether ``the action is
intended to address a market failure or promote some other goal.'' \13\
---------------------------------------------------------------------------
\10\ Executive Office of the President. Executive Order 12866 of
September 30, 1993. Regulatory Planning and Review. 58 FR 51735-
51744. October 4, 1993. Page 51735.
\11\ Office of Management and Budget (OMB). Circular A-4.
Regulatory Analysis. September 17, 2003.
\12\ Office of Management and Budget (OMB). Regulatory Impact
Analysis: A Primer.
\13\ Office of Management and Budget (OMB). Regulatory Impact
Analysis: A Primer. Page 2.
---------------------------------------------------------------------------
The purpose of this regulatory action is to amend and reorganize 49
CFR part 350, including adding relevant sections that are currently
located in part 355. Certain regulations are no longer necessary or are
redundant. Moreover, the FAST Act required FMCSA to implement a multi-
year CVSP with annual updates for States applying for MCSAP funds and
to provide a new MCSAP allocation formula. The proposed MCSAP formula
would help the government to operate more efficiently by establishing a
reallocation of grant funds based on changes in safety factors.
As explained elsewhere in this NPRM, this rule proposes a new MCSAP
allocation formula to replace the current formula that has been in use
for more than a decade with little modification. The proposed MCSAP
allocation formula would make several improvements over the current
formula. The proposed formula was constructed based on a careful
statistical analysis of the relationship between numerous highway
safety variables and crashes (fatal and non-fatal). While this analysis
revealed that several of the existing formula factors (e.g., population
and special fuel consumption) remain highly correlated with crashes,
newer data (carrier registration and highway miles) are available to
more closely link the allocation of funding to safety risk.
The new formula also proposes changes that go beyond modifications
to just the calculation methodology. First, the proposed formula
discontinues the use of Incentive funds. Instead, the allocation of
funds is based primarily on the calculation of the applicable formula
factors. Further, mitigation measures are employed to ensure that State
funding levels do not substantially fluctuate from year to year.
Specifically, a State may not have a decrease of more than 3 percent,
or an increase of more than 5 percent, from the prior year's share of
MCSAP funding.\14\ This helps the State ensure a degree of
predictability to aid in budget planning while still allowing for fair
allocation of funds.
---------------------------------------------------------------------------
\14\ In this respect, the States, the District of Columbia, and
Puerto Rico are treated differently than the remaining Territories.
The U.S. Census Bureau does not provide annual population estimates
for Territories other than Puerto Rico. Thus, these percentage
limitations governing funding levels do not apply to these
Territories.
---------------------------------------------------------------------------
The proposed MCSAP allocation formula would result in a
reallocation of grant funding that would be considered a transfer
payment, in that it would not change the total amount of funds
distributed. In accordance with OMB guidance on conducting regulatory
analysis (as discussed in OMB Circular A-4, ``Regulatory Analysis''),
transfer payments within the U.S. are not included in the estimate of
the costs and benefits of rulemakings. Thus, FMCSA does not include
transfers resulting from the proposed changes to the MCSAP allocation
formula in its estimate of the costs and benefits of the proposed rule.
The following table displays the amounts that States could expect to
receive under both the interim and proposed formulas in FY 2020, given
certain criteria (i.e., the inclusion of Oregon and the total amount of
appropriated funds). The table is provided for informational purposes
and is not a guarantee of a specific funding level.
Estimated MCSAP Funding Formula Comparison a b
----------------------------------------------------------------------------------------------------------------
FY 2020 Estimated interim FY 2020 Estimated MCSAP
formula awards formula award (new formula as
-------------------------------- proposed by FMCSA)
State/territory -------------------------------
Including Excluding Including Excluding
Oregon Oregon Oregon Oregon
----------------------------------------------------------------------------------------------------------------
Alabama......................................... $5,981,155 $6,084,689 $5,965,678 $5,965,678
Alaska.......................................... 1,269,196 1,269,068 1,257,326 1,257,326
American Samoa.................................. 350,000 350,000 350,000 350,000
Arizona......................................... 11,234,838 11,332,514 10,804,840 10,804,840
Arkansas........................................ 4,371,959 4,448,908 4,138,170 4,138,170
California...................................... 18,590,048 18,587,874 19,145,982 19,368,217
Colorado........................................ 4,906,099 4,994,077 4,950,448 5,103,801
Connecticut..................................... 2,393,631 2,434,316 2,527,768 2,527,768
Delaware........................................ 1,251,260 1,250,776 1,166,066 1,179,601
District of Columbia............................ 1,092,231 1,091,747 1,118,593 1,118,593
Florida......................................... 12,706,226 12,704,051 13,102,346 13,254,430
Georgia......................................... 10,223,708 10,394,519 10,443,179 10,443,179
Guam............................................ 350,000 350,000 439,941 439,941
Hawaii.......................................... 1,066,679 1,066,422 1,099,298 1,099,298
Idaho........................................... 2,500,201 2,541,685 2,436,607 2,436,607
Illinois........................................ 11,177,027 11,359,365 11,285,176 11,634,765
Indiana......................................... 7,600,938 7,728,822 7,286,679 7,286,679
Iowa............................................ 5,004,354 5,087,635 4,837,215 4,837,215
Kansas.......................................... 4,504,320 4,584,021 4,458,505 4,458,505
Kentucky........................................ 4,736,164 4,819,511 4,686,676 4,784,186
Louisiana....................................... 4,502,334 4,581,061 4,346,759 4,346,759
Maine........................................... 1,815,663 1,842,792 1,751,636 1,751,636
Maryland........................................ 3,898,791 3,970,778 4,175,980 4,175,980
Massachusetts................................... 4,437,614 4,514,021 4,604,630 4,604,630
Michigan........................................ 8,663,352 8,805,741 8,967,604 9,224,388
Minnesota....................................... 6,711,732 6,824,363 6,422,249 6,453,904
Mississippi..................................... 4,008,984 4,079,776 3,893,741 3,994,903
[[Page 44176]]
Missouri........................................ 6,892,605 7,014,924 6,844,323 6,975,820
Montana......................................... 3,063,123 3,102,581 2,994,454 2,994,454
Nebraska........................................ 3,650,919 3,709,539 3,626,881 3,626,881
Nevada.......................................... 2,596,460 2,643,932 2,584,009 2,664,056
New Hampshire................................... 1,352,053 1,351,569 1,343,600 1,384,743
New Jersey...................................... 7,038,352 7,140,767 6,943,724 7,158,824
New Mexico...................................... 4,002,101 4,058,337 4,107,636 4,107,636
New York........................................ 13,199,642 13,412,776 12,842,509 13,226,416
North Carolina.................................. 8,730,173 8,880,140 8,972,029 9,249,962
North Dakota.................................... 2,889,717 2,934,189 2,696,955 2,696,955
Northern Marianas............................... 350,000 350,000 350,000 350,000
Ohio............................................ 10,070,415 10,250,889 9,781,884 10,046,336
Oklahoma........................................ 5,927,263 6,025,865 5,769,781 5,769,781
Oregon.......................................... 3,745,475 .............. 3,946,430 ..............
Pennsylvania.................................... 10,038,363 10,214,498 10,424,935 10,424,935
Puerto Rico..................................... 1,172,803 1,195,818 1,166,066 1,179,601
Rhode Island.................................... 1,356,289 1,355,805 1,300,175 1,300,175
South Carolina.................................. 4,824,547 4,910,771 4,796,236 4,944,812
South Dakota.................................... 2,359,346 2,400,857 2,253,064 2,253,064
Tennessee....................................... 6,630,299 6,743,955 6,489,424 6,683,303
Texas........................................... 30,695,205 30,693,031 31,217,150 31,579,500
Utah............................................ 3,093,422 3,147,010 3,085,281 3,085,281
Vermont......................................... 1,212,839 1,212,647 1,298,730 1,298,730
Virgin Islands.................................. 350,000 350,000 350,000 350,000
Virginia........................................ 6,760,878 6,879,407 6,895,938 7,109,558
Washington...................................... 6,566,316 6,664,872 6,457,545 6,457,545
West Virginia................................... 2,297,186 2,335,720 2,171,592 2,238,863
Wisconsin....................................... 6,439,562 6,548,726 6,188,280 6,363,493
Wyoming......................................... 1,415,639 1,442,339 1,507,775 1,507,775
---------------------------------------------------------------
Total....................................... 304,069,500 304,069,500 304,069,500 304,069,500
----------------------------------------------------------------------------------------------------------------
\a\ Estimated calculations for FY 2020 are shown both with and without the State of Oregon. Note that Oregon did
not participate in FY 2019, but it may re-enter the program in the future.
\b\ Calculation of funds for the proposed formula was made after setting aside 11 percent for the Border
Component and 0.49 percent for the Territory Component of available MCSAP funds, and applying the hold-
harmless and cap provisions as explained above.
FMCSA proposes to clarify a State's obligation to cooperate in the
enforcement of hazardous materials safety permits for interstate and
intrastate carriers as required under subpart E of 49 CFR part 385 to
transport certain hazardous materials. The proposed rule would ensure
that all States would document compliance with hazardous materials
safety permit requirements in the course of inspections that States
conduct. State officials are already receiving training on subpart E of
part 385, and FMCSA estimates that no new costs or benefits would
result from this clarification.
This rule proposes to eliminate the exception to adopt Sec. Sec.
171.15 and 171.16 in the HMRs by States participating in MCSAP. These
provisions require incident reporting of certain hazardous materials
incidents. This proposal would allow States to ensure compliance with
these provisions during the course of investigations, but would not
require States to conduct investigations. Additionally, eliminating the
exception would not expand the incident reporting burden. State
officials are already receiving investigation training, which would
include training on enforcement of Sec. Sec. 171.15 and 171.16.
Therefore, FMCSA estimates that no new costs or benefits would result
from this elimination.
The proposed rule would require States to use CVSPs in accordance
with the FAST Act. The rule would provide direction to States on how
and when to submit CVSPs, which would be on 3-year cycles. Under the
current regulations, States must submit lengthy annual CVSP
applications to receive MCSAP funding. The proposed rule would require
States to submit robust 3-year CVSP applications for the first year,
with annual updates for the second and third years. Specifically, for
the first year of the CVSP, States would submit information regarding
performance goals, past performance, and other documents traditionally
provided in an annual CVSP, as well as a budget for the initial year.
For the second and third years of the CVSP, States would submit an
annual update that includes a budget for the applicable fiscal year,
changes to the CVSP, and other documents required on an annual basis.
As of FY 2020, all 55 States have transitioned voluntarily to 3-year
CVSPs, and thus, the Agency does not estimate an impact from this
proposed change.
When considering alternatives to the proposed requirements, FMCSA
considered requiring a CVSP cycle other than the proposed 3-year CVSP
cycle. In a Federal Register notice published October 27, 2016, FMCSA
asked 14 questions that would assist the Agency in developing an
information technology system form and procedures for submission of a
multi-year plan. Regarding questions on the length of the multi-year
plan, responses to this question varied with some States indicating
that they are not interested in a multi-year plan and some States
[[Page 44177]]
expressing interest in a 5-year plan. However, the largest number of
States recommended a 3-year period. Regarding the accuracy of available
data, all States confidently reported that they can provide complete
and accurate data, with many States recommending 2 or 3 years for the
multi-year plan. These States advised that their responses were
specific to their recommended timeframes. These responses confirmed
FMCSA's expectations. Section 5101 of the FAST Act requires the
Secretary to prescribe procedures for a State to submit a multi-year
CVSP with annual updates for MCSAP grants. The FAST Act provided
discretion to FMCSA in choosing the length of the CVSP cycle. FMCSA is
proposing to require a CVSP with a 3-year plan cycle. The 3-year CVSP
proposal is informed by comments received to the October 27, 2016,
Federal Register notice (81 FR 74862), the working group's
recommendations, and necessary eCVSP tool modifications. Furthermore,
FMCSA elected to test the 3-year CVSP with volunteers for the FY 2018
CVSP and receive feedback. FMCSA developed the 3-year CVSP proposal
using the experience and feedback of the FY 2018 3-year CVSP users. As
such, FMCSA believes that the 3-year CVSP would be the most
advantageous for FMCSA and the CVSP users and is no longer considering
a time-frame other than 3 years for the CVSP (see 83 FR 691, 692,
January 5, 2018).
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)
This proposed rule is neither expected to be an E.O. 13771
regulatory action nor an E.O. 13771 deregulatory action because there
would be no cost impacts resulting from the rule.\15\
---------------------------------------------------------------------------
\15\ Executive Office of the President. Executive Order 13771 of
January 30, 2017. Reducing Regulation and Controlling Regulatory
Costs. 82 FR 9339-9341. February 3, 2017.
---------------------------------------------------------------------------
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) of 1980, as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA)
(Pub. L. 104-121, 110 Stat. 857; 5 U.S.C. 601 et seq.), requires
Federal agencies to consider the impact of their regulatory proposals
on small entities, analyze effective alternatives that minimize small
entity impacts, and make their analyses available for public comment.
The term ``small entities'' means small businesses and not-for-profit
organizations that are independently owned and operated and are not
dominant in their fields, and governmental jurisdictions with
populations under 50,000 (5 U.S.C. 601(6)). Accordingly, DOT policy
requires an analysis of the impact of all regulations on small
entities, and mandates that agencies strive to lessen any adverse
effects on these entities. Section 605 of the RFA allows an Agency to
certify a rule, in lieu of preparing an analysis, if the rulemaking is
not expected to have a significant economic impact on a substantial
number of small entities.
This proposed rule primarily affects States applying for MCSAP
funds due to the new MCSAP allocation formula governing distribution of
MCSAP funds and the requirement to submit CVSPs on a 3-year cycle.
Under the standards of the RFA, as amended, States are not considered
small entities because they do not meet the definition of a small
entity in Section 601 of the RFA. Specifically, States are not
considered small governmental jurisdictions under Section 601(5) of the
RFA, both because State government is not included among the various
levels of government listed in Section 601(5), and because, even if
this were the case, no State, including the District of Columbia, has a
population of less than 50,000, which is the criterion for a
governmental jurisdiction to be considered small under Section 601(5)
of the RFA.
Although States would not be considered small entities, there is a
possibility that other entities that could be considered small may be
grant program applicants. These other entities include local
governments, Federally-recognized Indian tribes, other political
jurisdictions, universities, non-profit organizations, and other
persons who, although not eligible for MCSAP funds, which are
designated for States, would be eligible for funding under the High
Priority Program. However, the estimated impact of the proposed rule
results from changes to MCSAP, which do not affect the High Priority
Program applicants. As such, FMCSA does not estimate that these non-
State entities would experience economic impacts as a result of the
proposed rule.
In summary, this proposed rule would only impact States, which are
not small entities. The proposed rule thus does not have a significant
economic impact on the regulated entities, and does not significantly
impact a substantial number of small entities. Accordingly, I certify
that the action does not have a significant economic impact on a
substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the SBREFA, FMCSA wants to
assist small entities in understanding this proposed rule so that they
can better evaluate its effects on themselves and participate in the
rulemaking initiative. If the proposed rule would affect your small
business, organization, or governmental jurisdiction and you have
questions concerning its provisions or options for compliance, please
consult the FMCSA point of contact, Jack Kostelnik, listed in the For
Further Information Contact section of this proposed rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector, of $161 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2017 levels) or more in any 1 year. Though this proposed rule would not
result in such an expenditure, the Agency does discuss the effects of
this rule elsewhere in this preamble.
F. Paperwork Reduction Act
This proposed rule would call for no new collection of information
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The
Agency notes that MCSAP applications are not subject to OMB's standard
application requirements pursuant to 2 CFR 1201.206. Entities apply for
the Agency's other financial assistance programs using standardized
forms found in grants.gov, which account for any information collection
burden and are not impacted by this proposed rule.
[[Page 44178]]
G. E.O. 13132 (Federalism)
A rule has implications for federalism under section 1(a) of
E.O.13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA determined that this proposal would not have
substantial direct costs on or for States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
H. E.O. 12988 (Civil Justice Reform)
This proposed rule meets applicable standards in sections 3(a) and
3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation,
eliminate ambiguity, and reduce burden.
I. E.O. 13045 (Protection of Children)
E.O. 13045, Protection of Children from Environmental Health Risks
and Safety Risks (62 FR 19885, April 23, 1997), requires agencies
issuing ``economically significant'' rules, if the regulation also
concerns an environmental health or safety risk that an agency has
reason to believe may disproportionately affect children, to include an
evaluation of the regulation's environmental health and safety effects
on children. The Agency determined this proposed rule is not
economically significant. Therefore, no analysis of the impacts on
children is required. In any event, the Agency does not anticipate that
this regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.
J. E.O. 12630 (Taking of Private Property)
FMCSA reviewed this proposed rule in accordance with E.O. 12630,
Governmental Actions and Interference with Constitutionally Protected
Property Rights, and has determined it will not effect a taking of
private property or otherwise have taking implications.
K. Privacy
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447,
118 Stat. 2809, 3268, note following 5 U.S.C. 552a), requires the
Agency to conduct a Privacy Impact Assessment of a regulation that will
affect the privacy of individuals. The assessment considers impacts of
the rule on the privacy of information in an identifiable form and
related matters. The FMCSA Privacy Officer has evaluated the risks and
effects the rulemaking might have on collecting, storing, and sharing
personally identifiable information and has evaluated protections and
alternative information handling processes in developing the rule to
mitigate potential privacy risks. FMCSA determined that this rule does
not require the collection of individual personally identifiable
information.
Additionally, the Agency submitted a Privacy Threshold Assessment
analyzing the rulemaking to the DOT, Office of the Secretary's Privacy
Office. The DOT Privacy Office has determined that this rulemaking does
not create privacy risk.
The E-Government Act of 2002, Public Law 107-347, Sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a Privacy Impact Assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information because of this rule.
L. E.O. 12372 (Intergovernmental Review)
The regulations implementing E.O. 12372 regarding intergovernmental
consultation on Federal programs and activities do not apply to this
program.
M. E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this proposed rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that it is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.
N. E.O. 13783 (Promoting Energy Independence and Economic Growth)
E.O. 13783 directs executive departments and agencies to review
existing regulations that potentially burden the development or use of
domestically produced energy resources, and to appropriately suspend,
revise, or rescind those that unduly burden the development of domestic
energy resources. In accordance with E.O. 13783, DOT prepared and
submitted a report to the Director of OMB that provides specific
recommendations that, to the extent permitted by law, could alleviate
or eliminate aspects of agency action that burden domestic energy
production. This proposed rule has not been identified by DOT under
E.O. 13783 as potentially alleviating unnecessary burdens on domestic
energy production.
O. E.O. 13175 (Indian Tribal Governments)
This proposed rule does not have tribal implications under E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian tribes, on the relationship between the Federal government and
Indian tribes, or on the distribution of power and responsibilities
between the Federal government and Indian tribes.
P. National Technology Transfer and Advancement Act (Technical
Standards)
The National Technology Transfer and Advancement Act (note
following 15 U.S.C. 272) directs agencies to use voluntary consensus
standards in their regulatory activities unless the agency provides
Congress, through OMB, with an explanation of why using these standards
would be inconsistent with applicable law or otherwise impractical.
Voluntary consensus standards (e.g., specifications of materials,
performance, design, or operation; test methods; sampling procedures;
and related management systems practices) are standards that are
developed or adopted by voluntary consensus standards bodies. This rule
does not use technical standards. Therefore, FMCSA did not consider the
use of voluntary consensus standards.
Q. National Environmental Policy Act of 1969
FMCSA analyzed this proposed rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680, March 1, 2004),
Appendix 2, paragraphs 6.f. and 6.g. The Categorical Exclusions (CEs)
in paragraphs 6.f. and 6.g. cover regulations implementing activities,
whether performed by FMCSA or by States pursuant to MCSAP, and
procedures to promote adoption and enforcement of State laws and
regulations pertaining to CMV safety that are compatible with the
FMCSRs
[[Page 44179]]
and HMRs, and procedures to provide guidelines for a continuous
regulatory review of State laws and regulations. The proposed
requirements in this rule are covered by these CEs and the proposed
rule would not have any effect on the quality of the environment.
List of Subjects
49 CFR Part 350
Grant programs-transportation, Highway safety, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 355
Highway safety, Intergovernmental relations, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 388
Administrative practice and procedure, Highway safety, Motor
carriers, Motor vehicle safety.
In consideration of the foregoing, FMCSA proposes to amend 49 CFR
Chapter III as follows.
0
1. Revise part 350 to read as follows:
PART 350--MOTOR CARRIER SAFETY ASSISTANCE PROGRAM (MCSAP) AND HIGH
PRIORITY PROGRAM
Subpart A--General
Sec.
350.101 What is the purpose of this part?
350.103 When do the financial assistance program changes take
effect?
350.105 What definitions are used in this part?
Subpart B--Motor Carrier Safety Assistance Program Administration
350.201 What is MCSAP?
350.203 What are the national MCSAP elements?
350.205 What entities are eligible for funding under MCSAP?
350.207 What conditions must a State meet to qualify for MCSAP
funds?
350.209 How and when does a State apply for MCSAP funds using a
CVSP?
350.211 What must a State include for the first year of the CVSP?
350.213 What must a State include for the second and third years of
the CVSP?
350.215 What response does a State receive to its CVSP or annual
update?
350.217 How are MCSAP funds allocated?
350.219 How are MCSAP funds awarded under a continuing resolution
appropriations act or an extension of FMCSA's authorization?
350.221 How long are MCSAP funds available to a State?
350.223 What are the Federal and State shares of costs incurred
under MCSAP?
350.225 What MOE must a State maintain to qualify for MCSAP funds?
350.227 What activities are eligible for reimbursement under MCSAP?
350.229 What specific costs are eligible for reimbursement under
MCSAP?
350.231 What are the consequences for failure to meet MCSAP
conditions?
Subpart C--MCSAP Required Compatibility Review
350.301 What is the purpose of this subpart?
350.303 How does a State ensure compatibility?
350.305 What specific variances from the FMCSRs are allowed for
State laws and regulations and not subject to Federal jurisdiction?
350.307 How may a State obtain a new exemption for State laws and
regulations for a specific industry involved in intrastate commerce?
350.309 What are the consequences if a State has provisions that are
not compatible?
Subpart D--High Priority Program
350.401 What is the High Priority Program?
350.403 What are the High Priority Program objectives?
350.405 What conditions must an applicant meet to qualify for High
Priority Program funds?
350.407 How and when does an eligible entity apply for High Priority
Program funds?
350.409 What response will an applicant receive under the High
Priority Program?
350.411 How long are High Priority Program funds available to a
recipient?
350.413 What are the Federal and recipient shares of costs incurred
under the High Priority Program?
350.415 What types of activities and projects are eligible for
reimbursement under the High Priority Program?
350.417 What specific costs are eligible for reimbursement under the
High Priority Program?
Authority: 49 U.S.C. 13902, 31101-31104, 31108, 31136, 31141,
31161, 31310-31311, 31502; and 49 CFR 1.87.
Subpart A--General
Sec. 350.101 What is the purpose of this part?
The purpose of this part is to provide direction for entities
seeking MCSAP or High Priority Program funding to improve motor
carrier, CMV, and driver safety.
Sec. 350.103 When do the financial assistance program changes take
effect?
Unless otherwise provided, the changes to the FMCSA financial
assistance programs under this part take effect for fiscal year 2020,
beginning October 1, 2019.
Sec. 350.105 What definitions are used in this part?
As used in this part:
Administrative takedown funds means funds FMCSA deducts each fiscal
year from the amounts made available for MCSAP and the High Priority
Program for expenses incurred by FMCSA for training State and local
government employees and for the administration of the programs.
Administrator means the administrator of FMCSA.
Border State means a State that shares a land border with Canada or
Mexico.
Commercial motor vehicle (CMV) means a motor vehicle that has any
of the following characteristics:
(1) A gross vehicle weight (GVW), gross vehicle weight rating
(GVWR), gross combination weight (GCW), or gross combination weight
rating (GCWR) of 4,537 kilograms (10,001 pounds) or more.
(2) Regardless of weight, is designed or used to transport 16 or
more passengers, including driver.
(3) Regardless of weight, is used in the transportation of
hazardous materials and is required to be placarded pursuant to 49 CFR
part 172, subpart F.
Commercial vehicle safety plan (CVSP) means a State's CMV safety
objectives, strategies, activities, and performance measures that cover
a 3-year period, including the submission of the CVSP for the first
year and annual updates thereto for the second and third years.
Compatible or compatibility means State safety laws and
regulations, standards, and orders:
(1) As applicable to interstate commerce, that are identical to, or
have the same effect as, the FMCSRs;
(2) As applicable to intrastate commerce, that:
(i) Are identical to, or have the same effect as, the FMCSRs; or
(ii) Fall within the limited variances from the FMCSRs allowed
under subpart C of this part; and
(3) As applicable to interstate and intrastate commerce involving
the movement of hazardous materials, that are identical to the HMRs.
FMCSA means the Federal Motor Carrier Safety Administration of the
United States Department of Transportation.
FMCSRs means:
(1) The Federal Motor Carrier Safety Regulations under parts 390,
391, 392, 393, 395, 396, and 397 of this subchapter; and
(2) Applicable standards and orders issued under these provisions.
HMRs means:
(1) The Federal Hazardous Materials Regulations under subparts F
and G of part 107, and parts 171, 172, 173, 177, 178, and 180 of this
title; and
(2) Applicable standards and orders issued under these provisions.
High Priority Program funds means total funds available for the
High
[[Page 44180]]
Priority Program, less the administrative takedown funds.
Investigation means an examination of motor carrier operations and
records, such as drivers' hours of service, maintenance and inspection,
driver qualification, commercial driver's license requirements,
financial responsibility, crashes, hazardous materials, and other
safety and transportation records, to determine whether a motor carrier
meets safety standards, including the safety fitness standard under
Sec. 385.5 of this chapter or, for intrastate motor carrier
operations, the applicable State standard.
Lead State Agency means the State CMV safety agency responsible for
administering the CVSP throughout a State.
Maintenance of effort (MOE) means the level of a State's financial
expenditures, other than the required match, the Lead State Agency is
required to expend each fiscal year in accordance with Sec. 350.225.
Motor carrier means a for-hire motor carrier or private motor
carrier. The term includes a motor carrier's agents, officers, and
representatives as well as employees responsible for hiring,
supervising, training, assigning, or dispatching a driver or an
employee concerned with the installation, inspection, and maintenance
of motor vehicle equipment or accessories.
Motor Carrier Safety Assistance Program (MCSAP) funds means total
formula grant funds available for MCSAP, less the administrative
takedown funds.
New entrant safety audit means the safety audit of an interstate
motor carrier that is required as a condition of MCSAP eligibility
under Sec. 350.207(a)(26), and, at the State's discretion, an
intrastate new entrant motor carrier under 49 U.S.C. 31144(g) that is
conducted in accordance with subpart D of part 385 of this chapter.
North American Standard Inspection means the procedures used by
certified safety inspectors to conduct various levels of safety
inspections of the vehicle or driver.
State means a State of the United States, the District of Columbia,
American Samoa, the Commonwealth of the Northern Mariana Islands, the
Commonwealth of Puerto Rico, Guam, and the Virgin Islands.
Traffic enforcement means the stopping of vehicles operating on
highways for moving violations of State, tribal, or local motor vehicle
or traffic laws by State, tribal, or local officials.
Subpart B--Motor Carrier Safety Assistance Program Administration
Sec. 350.201 What is MCSAP?
(a) General. MCSAP is a Federal formula grant program that provides
financial assistance to States to reduce the number and severity of
crashes, and resulting injuries and fatalities, involving CMVs and to
promote the safe transportation of passengers and hazardous materials.
The goal of MCSAP is to reduce CMV-involved crashes, fatalities, and
injuries through consistent, uniform, and effective CMV safety programs
that include driver or vehicle inspections, traffic enforcement,
carrier investigations, new entrant safety audits, border enforcement,
safety data improvements, and Performance and Registration Information
Systems Management (PRISM).
(b) MCSAP requirements. MCSAP requires States to:
(1) Make targeted investments to promote safe CMV transportation,
including transportation of passengers and hazardous materials;
(2) Invest in activities likely to generate maximum reductions in
the number and severity of CMV crashes and in fatalities resulting from
CMV crashes;
(3) Adopt and enforce effective motor carrier, CMV, and driver
safety regulations and practices consistent with Federal requirements;
and
(4) Assess and improve State-wide performance of motor carrier,
CMV, and driver safety by setting program goals and meeting performance
standards, measurements, and benchmarks.
(c) State participation. MCSAP sets conditions of participation for
States and promotes compatibility in the adoption and uniform
enforcement of safety laws and regulations, standards, and orders.
Sec. 350.203 What are the national MCSAP elements?
The national MCSAP elements are:
(a) Driver inspections;
(b) Vehicle inspections;
(c) Traffic enforcement;
(d) Investigations;
(e) New entrant safety audits;
(f) CMV safety programs focusing on international commerce in
border States;
(g) Beginning October 1, 2020, full participation in PRISM or an
acceptable alternative as determined by the Administrator;
(h) Accurate, complete, timely, and corrected data;
(i) Public education and awareness; and
(j) Other elements that may be prescribed by the Administrator.
Sec. 350.205 What entities are eligible for funding under MCSAP?
Only States are eligible to receive MCSAP grants directly from
FMCSA.
Sec. 350.207 What conditions must a State meet to qualify for MCSAP
funds?
(a) General. To qualify for MCSAP funds, a State must:
(1) Designate a Lead State Agency;
(2) Assume responsibility for improving motor carrier safety by
adopting and enforcing compatible safety laws and regulations,
standards, and orders, except as may be determined by the Administrator
to be inapplicable to a State enforcement program;
(3) Ensure that the State will cooperate in the enforcement of
financial responsibility requirements under part 387 of this chapter;
(4) Provide that the State will enforce the registration
requirements under 49 U.S.C. 13902 and 31134 by prohibiting the
operation of any vehicle discovered to be operated by a motor carrier
without a registration issued under those sections or operated beyond
the scope of the motor carrier's registration;
(5) Provide a right of entry (or other method a State may use that
is adequate to obtain necessary information) and inspection to carry
out the CVSP;
(6) Give satisfactory assurances in its CVSP that the Lead State
Agency has the legal authority, resources, and qualified personnel
necessary to enforce compatible safety laws and regulations, standards,
and orders;
(7) Provide satisfactory assurances that the State will undertake
efforts that will emphasize and improve enforcement of State and local
traffic laws and regulations related to CMV safety;
(8) Give satisfactory assurances that the State will devote
adequate resources to the administration of the CVSP throughout the
State, including the enforcement of compatible safety laws and
regulations, standards, and orders;
(9) Provide that the MOE of the Lead State Agency will be
maintained each fiscal year in accordance with Sec. 350.225;
(10) Provide that all reports required in the CVSP be available to
FMCSA upon request, meet the reporting requirements, and use the forms
for recordkeeping, inspections, and investigations that FMCSA
prescribes;
(11) Implement performance-based activities, including deployment
and maintenance of technology, to enhance the efficiency and
effectiveness of CMV safety programs;
(12) Establish and dedicate sufficient resources to a program to
ensure that accurate, complete, and timely motor
[[Page 44181]]
carrier safety data are collected and reported, and to ensure the
State's participation in a national motor carrier safety data
correction system prescribed by FMCSA;
(13) Ensure that the Lead State Agency will coordinate the CVSP,
data collection, and information systems with the State highway safety
improvement program under 23 U.S.C. 148(c);
(14) Ensure participation in information technology and data
systems as required by FMCSA for jurisdictions receiving MCSAP funding;
(15) Ensure that information is exchanged with other States in a
timely manner;
(16) Grant maximum reciprocity for inspections conducted under the
North American Standard Inspection Program through the use of a
nationally accepted system that allows ready identification of
previously inspected CMVs;
(17) Provide that the State will conduct comprehensive and highly
visible traffic enforcement and CMV safety inspection programs in high-
risk locations and corridors;
(18) Ensure that driver or vehicle inspections will be conducted at
locations that are adequate to protect the safety of drivers and
enforcement personnel;
(19) Except in the case of an imminent or obvious safety hazard,
ensure that an inspection of a vehicle transporting passengers for a
motor carrier of passengers is conducted at a bus station, terminal,
border crossing, maintenance facility, destination, or other location
where a motor carrier may make a planned stop (excluding a weigh
station);
(20) Provide satisfactory assurances that the State will address
activities in support of the national program elements listed in Sec.
350.203, including activities:
(i) Aimed at removing impaired CMV drivers from the highways
through adequate enforcement of regulations on the use of alcohol and
controlled substances and by ensuring ready roadside access to alcohol
detection and measuring equipment;
(ii) Aimed at providing training to MCSAP personnel to recognize
drivers impaired by alcohol or controlled substances; and
(iii) Related to criminal interdiction, including human
trafficking, when conducted with an appropriate CMV inspection and
appropriate strategies for carrying out those interdiction activities,
including interdiction activities that affect the transportation of
controlled substances (as defined in section 102 of the Comprehensive
Drug Abuse Prevention and Control Act of 1970 (21 U.S.C. 802) and
listed in 21 CFR part 1308) by any occupant of a CMV;
(21) Ensure that detection of criminal activities and size and
weight activities described in Sec. 350.227(b), if financed through
MCSAP funds, will not diminish the effectiveness of the development and
implementation of the programs to improve motor carrier, CMV, and
driver safety;
(22) Ensure consistent, effective, and reasonable sanctions;
(23) Provide that the State will include in the training manuals
for the licensing examinations to drive a CMV and non-CMV information
on best practices for driving safely in the vicinity of CMVs and non-
CMVs;
(24) Require all registrants of CMVs to demonstrate their knowledge
of applicable FMCSRs, HMRs, or compatible State laws or regulations,
standards, and orders;
(25) Ensure that the State transmits to inspectors the notice of
each Federal exemption granted under subpart C of part 381 and
Sec. Sec. 390.23 and 390.25 of this subchapter that relieves a person
or class of persons in whole or in part from compliance with the FMCSRs
or HMRs that has been provided to the State by FMCSA and identifies the
person or class of persons granted the exemption and any terms and
conditions that apply to the exemption;
(26) Subject to paragraphs (b) and (c)(1) of this section, conduct
new entrant safety audits of interstate and, at the State's discretion,
intrastate new entrant motor carriers in accordance with subpart D of
part 385;
(27) Subject to paragraph (c)(2) of this section, beginning October
1, 2020, participate fully in PRISM by complying with the conditions
for full participation, or receiving approval from the Administrator
for an alternative approach for identifying and immobilizing a motor
carrier with serious safety deficiencies in a manner that provides an
equivalent level of safety;
(28) Ensure that the State will cooperate in the enforcement of
hazardous materials safety permits issued under subpart E of part 385
of this chapter; and
(29) For border States, conduct a border CMV safety program
focusing on international commerce that includes enforcement and
related projects, or forfeit all funds allocated for border-related
activities.
(b) New entrant safety audits--Use of third parties. If a State
uses a third party to conduct new entrant safety audits under paragraph
(a)(26) of this section, the State must verify the quality of the work
and the State remains solely responsible for the management and
oversight of the audits.
(c) Territories. (1) The new entrant safety audit requirement under
paragraph (a)(26) does not apply to American Samoa, the Commonwealth of
the Northern Mariana Islands, the Commonwealth of Puerto Rico, Guam,
and the Virgin Islands.
(2) The required PRISM participation date under paragraph (a)(27)
of this section does not apply to American Samoa, the Commonwealth of
the Northern Mariana Islands, the Commonwealth of Puerto Rico, Guam,
and the Virgin Islands.
Sec. 350.209 How and when does a State apply for MCSAP funds using a
CVSP?
(a) MCSAP Application Submission Format. (1) The CVSP is a 3-year
plan.
(2) The first year of the CVSP varies by State, depending on when
the State implemented the CVSP.
(3) For the first year of the CVSP, the Lead State Agency must
submit a CVSP projecting programs and projects covering 3 years and a
budget for the first fiscal year for which the CVSP is submitted, as
explained in Sec. 350.211.
(4) For the second and third years of the CVSP, the Lead State
Agency must submit an annual update and budget for that fiscal year and
any other needed adjustments or changes to the CVSP, as explained in
Sec. 350.213.
(b) MCSAP Application Submission Deadline. (1) The Lead State
Agency must submit the CVSP, or the annual updates, to FMCSA by the
date prescribed in the MCSAP application memorandum for the fiscal
year.
(2) The Administrator may extend for a period not exceeding 30 days
the deadline prescribed in the MCSAP application memorandum for
document submission for good cause.
Sec. 350.211 What must a State include for the first year of the
CVSP?
(a) General. (1) The first year of the CVSP must comply with the
MCSAP application memorandum and, at a minimum, provide a performance-
based program with a general overview section that includes:
(i) A statement of the Lead State Agency's goal or mission; and
(ii) A program summary of the effectiveness of prior activities in
reducing CMV crashes, injuries, and fatalities and in improving driver
and motor carrier safety performance.
(2) The program summary must identify and address safety or
performance problems in the State.
(3) The program summary must use 12-month data periods that are
[[Page 44182]]
consistent from year to year. This may be a calendar year, fiscal year,
or any 12-month period for which the State's data is current.
(4) The program summary must show trends supported by safety and
program performance data collected over several years.
(b) National MCSAP elements. (1) The first year of the CVSP must
include a brief narrative describing how the State CVSP addresses the
national program elements listed in Sec. 350.203.
(2) The CVSP must address each national program element even if
there are no planned activities in a program area.
(c) Resource allocation. The first year of the CVSP must explain
the rationale for the State's resource allocation decisions.
(d) Specific activities. The first year of the CVSP must have a
narrative section that includes a description of how the CVSP supports:
(1) Activities aimed at removing impaired CMV drivers from the
highways through adequate enforcement of restrictions on the use of
alcohol and controlled substances and by ensuring ready roadside access
to alcohol detection and measuring equipment;
(2) Activities aimed at providing an appropriate level of training
to MCSAP personnel to recognize drivers impaired by alcohol or
controlled substances;
(3) Criminal interdiction activities and appropriate strategies for
carrying out those interdiction activities, including human
trafficking, and interdiction activities affecting the transportation
of controlled substances by any occupant of a CMV; and
(4) Activities to enforce registration requirements and to
cooperate in the enforcement of financial responsibility requirements
under Sec. 392.9a and part 387 of this subchapter.
(e) Performance objectives. The first year of the CVSP must include
performance objectives, strategies, and activities stated in
quantifiable terms, that are to be achieved through the CVSP.
(f) Monitoring. The first year of the CVSP must include a
description of the State's method for ongoing monitoring of the
progress of the CVSP.
(g) Budget. The first year of the CVSP must include a budget for
that year that describes the expenditures for allocable costs, such as
personnel and related costs, equipment purchases, printing, information
systems costs, and other eligible costs consistent with Sec. 350.229.
(h) List of MCSAP contacts. The first year of the CVSP must include
a list of MCSAP contacts.
(i) Certification. (1) For the first year of the CVSP, the Lead
State Agency must certify that it has:
(i) Met all the MCSAP conditions in Sec. 350.207; and
(ii) Completed the annual review required by Sec. 350.303 and
determined that the State maintains required compatibility.
(2) If a State CMV safety law or regulation, standard, or order is
no longer compatible, the certifying official must explain the State's
plan to address the discrepancy.
(3) A certification under this paragraph must reflect that the
certifying official has authority to make the certification on behalf
of the State.
(j) New or amended laws. For the first year of the CVSP, the Lead
State Agency must submit to FMCSA a copy of any new or amended law or
regulation affecting CMV safety that was enacted by the State since the
last CVSP or annual update was submitted.
(k) Further submissions. For the first year of the CVSP, the Lead
State Agency must also submit other information required, as described
in the MCSAP application memorandum for that fiscal year.
Sec. 350.213 What must a State include for the second and third years
of the CVSP?
(a) General. For the second and third years of the CVSP, a State
must submit an annual update that complies with the MCSAP application
memorandum and, at a minimum, must include program goals,
certifications, other information revised since the prior year's CVSP,
and the items listed in paragraphs (b) to (g) of this section.
(b) Budget. For the second and third years of the CVSP, the Lead
State Agency must include a budget that supports the applicable fiscal
year of the CVSP and describes the expenditures for allocable costs,
such as personnel and related costs, equipment purchases, printing,
information systems costs, and other eligible costs consistent with
Sec. 350.229.
(c) Resource allocation. For the second and third years of the
CVSP, the Lead State Agency must explain the rationale for the State's
resource allocation decisions.
(d) List of MCSAP contacts. For the second and third years of the
CVSP, the Lead State Agency must include a list of MCSAP contacts.
(e) Certification. (1) For the second and third years of the CVSP,
the Lead State Agency must certify that it has:
(i) Met all the MCSAP conditions in Sec. 350.207; and
(ii) Completed the annual review required by Sec. 350.303 and
determined that State CMV safety laws and regulations, standards, and
orders are compatible.
(2) If a State CMV safety law or regulation, standard, or order is
no longer compatible, the certifying official must explain the State's
plan to address the discrepancy.
(3) A certification under this paragraph must reflect that the
certifying official has authority to make the certification on behalf
of the State.
(f) New or amended laws. For the second and third years of the
CVSP, the Lead State Agency must submit to FMCSA a copy of any new or
amended law or regulation affecting CMV safety that the State enacted
since the last CVSP or annual update was submitted.
(g) Further submissions. For the second and third years of the
CVSP, the Lead State Agency must submit other information required, as
described in the MCSAP application memorandum for that fiscal year.
Sec. 350.215 What response does a State receive to its CVSP or annual
update?
(a) First year of the CVSP. (1) FMCSA will notify the Lead State
Agency within 30 days after FMCSA begins its review of a State's first
year of the CVSP, including the budget, whether FMCSA:
(i) Approves the CVSP; or
(ii) Withholds approval because the CVSP:
(A) Does not meet the requirements of this part; or
(B) Is not adequate to ensure effective enforcement of compatible
safety laws and regulations, standards, and orders.
(2) If FMCSA withholds approval of the CVSP, FMCSA will give the
Lead State Agency a written explanation of the reasons for withholding
approval and allow the Lead State Agency to modify and resubmit the
CVSP for approval.
(3) The Lead State Agency has 30 days from the date of the notice
under paragraph (a)(2) of this section to modify and resubmit the CVSP.
(4) Failure to resubmit the modified CVSP may delay funding or
jeopardize MCSAP eligibility.
(5) Final disapproval of a resubmitted CVSP will result in
disqualification for MCSAP funding for that fiscal year.
(b) Annual update for the second or third year of the CVSP. (1)
FMCSA will notify the Lead State Agency within 30 days after FMCSA
begins its review of the State's annual update, including the budget,
whether FMCSA:
(i) Approves the annual update; or
(ii) Withholds approval.
(2) If FMCSA withholds approval of the annual update, FMCSA will
give the Lead State Agency a written explanation
[[Page 44183]]
of the reasons for withholding approval and allow the Lead State Agency
to modify and resubmit the annual update for approval.
(3) The Lead State Agency will have 30 days from the date of the
notice under paragraph (b)(2) of this section to modify and resubmit
the annual update.
(4) Failure to resubmit the modified annual update may delay
funding or jeopardize MCSAP eligibility.
(5) Final disapproval of a resubmitted annual update will result in
disqualification for MCSAP funding for that fiscal year.
(c) Judicial review. Any State aggrieved by an adverse decision
under this section may seek judicial review under 5 U.S.C. chapter 7.
Sec. 350.217 How are MCSAP funds allocated?
(a) General. Subject to the availability of funding, FMCSA must
allocate MCSAP funds to grantees with approved CVSPs in accordance with
this section.
(b) Territories--excluding Puerto Rico. (1) Not more than 0.49
percent of the MCSAP funds may be allocated in accordance with this
paragraph among the Territories of American Samoa, the Commonwealth of
the Northern Mariana Islands, Guam, and the Virgin Islands.
(2) Half of the MCSAP funds available under paragraph (b)(1) of
this section will be divided equally among the Territories.
(3) The remaining MCSAP funds available under paragraph (b)(1) will
be allocated among the Territories in a manner proportional to the
Territories' populations, as reflected in the decennial census issued
by the U.S. Census Bureau.
(4) The amounts calculated under paragraphs (b)(2) and (b)(3) of
this section will be totaled for each Territory.
(5) The amounts calculated under paragraph (b)(4) of this section
will be adjusted proportionally, based on population, to ensure that
each Territory receives at least $350,000.
(c) Border States. (1) Not more than 11 percent of the MCSAP funds
may be allocated in accordance with this paragraph among border States
that maintain a border enforcement program.
(2) The shares for each border State will be calculated based on
the number of CMV crossings at each United States port of entry, as
determined by Bureau of Transportation Statistics, with each border
State receiving:
(i) 1 share per 25,000 annual CMV crossings at each United States
port of entry on the Mexican border, with a minimum of 8 shares for
each port of entry; or
(ii) 1 share per 200,000 annual CMV crossings at each United States
port of entry on the Canadian border, with a minimum of 0.25 share for
each port of entry with more than 1,000 annual CMV crossings.
(3) The shares of all border States calculated under paragraph
(c)(2) of this section will be totaled.
(4) Each individual border State's shares calculated under
paragraph (c)(2) of this section will be divided by the total shares
calculated in paragraph (c)(3) of this section.
(5) The percentages calculated in paragraph (c)(4) of this section
will be adjusted proportionally to ensure that each border State
receives at least 0.075 percent but no more than 55 percent of the
total border allocation available under paragraph (c)(1) of this
section.
(6) Each border State's percentage calculated in paragraph (c)(5)
of this section will be multiplied by the total border allocation
available under this paragraph to determine the dollar amount of the
border State's allocation.
(7) To maintain eligibility for an allocation under this paragraph,
a border State must maintain a border enforcement program, but may
expend more or less than the amounts allocated under this paragraph for
border activities. Failure to maintain a border enforcement program
will result in forfeiture of all funds allocated under this paragraph,
but will not affect the border State's allocation under paragraph (d)
of this section.
(8) Allocations made under this paragraph are in addition to
allocations made under paragraph (d) of this section.
(d) States. (1)(i) At least 88.51 percent of the MCSAP funds must
be allocated in accordance with this paragraph among the eligible
States, including Puerto Rico, but excluding American Samoa, the
Commonwealth of the Northern Mariana Islands, Guam, and the Virgin
Islands.
(ii) The amounts made available under paragraphs (b) and (c) of
this section that are not allocated under those paragraphs must be
added to the total amount to be allocated in accordance with this
paragraph.
(iii) In the case of reallocation of funds under paragraph (c) of
this section by a border State that no longer maintains a border
enforcement program, no portion of the reallocated funds will be
allocated to that border State.
(2) The amount available under paragraph (d)(1) of this section
must be calculated based on each State's percentage of the national
total for each of the following equally-weighted factors:
(i) National Highway System Road Length Miles, as reported by the
Federal Highway Administration (FHWA);
(ii) All Vehicle Miles Traveled, as reported by the FHWA;
(iii) Population (annual census estimates), as issued by the U.S.
Census Bureau;
(iv) Special Fuel Consumption, as reported by the FHWA; and
(v) Carrier Registrations, as determined by FMCSA, based on the
physical State of the carrier, and calculated as the sum of interstate
carriers and intrastate hazardous materials carriers.
(3) Each State's percentages calculated in paragraph (d)(2) of this
section will be averaged.
(4) The percentage calculated in paragraph (d)(3) of this section
will be adjusted proportionally to ensure that each State receives at
least 0.44 percent but no more than 4.944 percent of the MCSAP funds
available under paragraph (d)(1) of this section.
(5) Each State's percentage will be multiplied by the total MCSAP
funds available under this paragraph to determine the dollar amount of
the State's allocation.
(e) Hold-harmless and cap. (1) The dollar amounts calculated under
paragraphs (c)(6) and (d)(5) of this section will be totaled and then
divided by the total MCSAP funds to determine a State's percentage of
the total MCSAP funds.
(2) Each State's total percentage of its MCSAP funding in the
fiscal year immediately prior to the year for which funding is being
allocated will be determined by dividing the State's dollar allocation
by the overall MCSAP funding in that prior year.
(3) Proportional adjustments will be made to ensure that each
State's percentage of MCSAP funds as calculated under subparagraph (1)
of this paragraph will be no less than 97 percent or more than 105
percent of the State's percentage of MCSAP funds allocated for the
prior fiscal year.
(f) Withholding. (1) Allocations made under this section are
subject to withholdings under Sec. 350.231(d).
(2) Minimum or maximum allocations described in paragraphs (b),
(c), and (d) of this section are to be applied prior to any reduction
under Sec. 350.231(d).
(3) State MCSAP funds affected by Sec. 350.231(d) will be
allocated to the unaffected States in accordance with paragraph (d) of
this section.
(4) Paragraph (e) of this section does not apply after any
reduction under Sec. 350.231(d).
[[Page 44184]]
Sec. 350.219 How are MCSAP funds awarded under a continuing
resolution appropriations act or an extension of FMCSA's authorization?
In the event of a continuing resolution appropriations act or an
extension of FMCSA's authorization, subject to the availability of
funding, FMCSA may first issue grants to States that have the lowest
percent of undelivered obligations of the previous Federal fiscal
year's funding, or as otherwise determined by the Administrator.
Sec. 350.221 How long are MCSAP funds available to a State?
MCSAP funds obligated to a State will remain available for the
Federal fiscal year that the funds are obligated and the next full
Federal fiscal year.
Sec. 350.223 What are the Federal and State shares of costs incurred
under MCSAP?
(a) Federal share. FMCSA will reimburse at least 85 percent of the
eligible costs incurred under MCSAP.
(b) Match. (1) In-kind contributions are acceptable in meeting a
State's matching share under MCSAP if they represent eligible costs, as
established by 2 CFR parts 200 and 1201 and FMCSA policy.
(2) States may use amounts generated under the Unified Carrier
Registration Agreement as part of the State's match required for MCSAP,
provided the amounts are not applied to the MOE required under Sec.
350.225 and are spent on eligible costs, as established by 2 CFR parts
200 and 1201 and FMCSA policy.
(c) Waiver. (1) The Administrator waives the requirement for the
matching share under MCSAP for American Samoa, the Commonwealth of the
Northern Mariana Islands, Guam, and the Virgin Islands.
(2) The Administrator reserves the right to reduce or waive the
matching share under MCSAP for other States in any fiscal year:
(i) As announced in the MCSAP application memorandum; or
(ii) As determined by the Administrator on a case-by-case basis.
Sec. 350.225 What MOE must a State maintain to qualify for MCSAP
funds?
(a) General. Subject to paragraph (e) of this section, a State must
maintain an MOE each fiscal year equal to the average aggregate
expenditure of the Lead State Agency for CMV safety programs eligible
for funding under this part at a level at least equal to:
(1) The average level of that expenditure for the base period of
fiscal years 2004 and 2005; or
(2) The level of expenditure in fiscal year 2020, as adjusted under
section 5107 of the Fixing America's Surface Transportation (FAST) Act
(Pub. L. 114-94, 129 Stat. 1312, 1532-1534 (2015)).
(b) Calculation. In determining a State's MOE, FMCSA:
(1) May allow the State to exclude State expenditures for
Federally-sponsored demonstration and pilot CMV safety programs and
strike forces;
(2) May allow the State to exclude expenditures for activities
related to border enforcement and new entrant safety audits;
(3) May allow the State to use amounts generated under the Unified
Carrier Registration Agreement, provided the amounts are not applied to
the match required under Sec. 350.223;
(4) Requires the State to exclude Federal funds; and
(5) Requires the State to exclude State matching funds.
(c) Costs. (1) A State must include all eligible costs associated
with activities performed during the base period by the Lead State
Agency that receives funds under this part.
(2) A State must include only those activities that meet the
current requirements for funding eligibility under the grant program.
(d) Waivers and modifications. (1) If a State requests, FMCSA may
waive or modify the State's obligation to meet its MOE for a fiscal
year if FMCSA determines that the waiver or modification is reasonable,
based on circumstances described by the State.
(2) Requests to waive or modify the State's obligation to meet its
MOE must be submitted to FMCSA in writing.
(3) FMCSA will review the request and provide a response as soon as
practicable, but no later than 120 days following receipt of the
request.
(e) Permanent adjustment. After Federal fiscal year 2020, at the
request of a State, FMCSA may make a permanent adjustment to reduce the
State's MOE only if a State has new information unavailable to it
during Federal fiscal year 2020.
Sec. 350.227 What activities are eligible for reimbursement under
MCSAP?
(a) General. The primary activities eligible for reimbursement
under MCSAP are:
(1) Activities that support the national program elements listed in
Sec. 350.203; and
(2) Sanitary food transportation inspections performed under 49
U.S.C. 5701.
(b) Additional activities. If part of the approved CVSP and
accompanied by an appropriate North American Standard Inspection and
inspection report, additional activities eligible for reimbursement
are:
(1) Enforcement of CMV size and weight limitations at locations,
other than fixed-weight facilities, where the weight of a CMV can
significantly affect the safe operation of the vehicle, such as near
steep grades or mountainous terrains, or at ports where intermodal
shipping containers enter and leave the United States; and
(2) Detection of, and enforcement activities taken as a result of,
criminal activity involving a CMV or any occupant of the vehicle,
including the trafficking of human beings.
(c) Traffic enforcement. Documented enforcement of State traffic
laws and regulations designed to promote the safe operation of CMVs,
including documented enforcement of such laws and regulations relating
to non-CMVs when necessary to promote the safe operation of CMVs, are
eligible for reimbursement under MCSAP if:
(1) The number of motor carrier safety activities, including safety
inspections, is maintained at a level at least equal to the average
level of such activities conducted in the State in fiscal years 2004
and 2005; and
(2) The State does not use more than 10 percent of its MCSAP funds
for enforcement activities relating to non-CMVs necessary to promote
the safe operation of CMVs, unless the Administrator determines that a
higher percentage will result in significant increases in CMV safety.
Sec. 350.229 What specific costs are eligible for reimbursement
under MCSAP?
(a) General. FMCSA must establish criteria for activities eligible
for reimbursement and publish those criteria in policy or the MCSAP
application memorandum before the MCSAP application period.
(b) Costs eligible for reimbursement. All costs relating to
activities eligible for reimbursement must be necessary, reasonable,
allocable, and allowable under this subpart and 2 CFR parts 200 and
1201. The eligibility of specific costs for reimbursement is addressed
in the MCSAP application memorandum and is subject to review and
approval by FMCSA.
(c) Ineligible costs. MCSAP funds may not be used for the:
(1) Acquisition of real property or buildings; or
(2) Development, implementation, or maintenance of a State registry
of medical examiners.
Sec. 350.231 What are the consequences for failure to meet MCSAP
conditions?
(a) General. (1) If a State is not performing according to an
approved CVSP or not adequately meeting the
[[Page 44185]]
conditions set forth in Sec. 350.207, the Administrator may issue a
written notice of proposed determination of nonconformity to the chief
executive of the State or the official designated in the CVSP.
(2) The notice will set forth the reasons for the proposed
determination.
(b) Response. The State has 30 days from the date of the notice to
reply. The reply must address the discrepancy cited in the notice and
must provide documentation as requested.
(c) Final Agency decision. (1) After considering the State's reply,
the Administrator makes a final decision.
(2) In the event the State fails to timely reply to a notice of
proposed determination of nonconformity, the notice becomes the
Administrator's final determination of nonconformity.
(d) Consequences. Any adverse decision will result in FMCSA:
(1) Withdrawing approval of the CVSP and withholding all MCSAP
funds to the State; or
(2) Finding the State in noncompliance in lieu of withdrawing
approval of the CVSP and withholding:
(i) Up to 5 percent of MCSAP funds during the fiscal year that
FMCSA notifies the State of its noncompliance;
(ii) Up to 10 percent of MCSAP funds for the first full fiscal year
of noncompliance;
(iii) Up to 25 percent of MCSAP funds for the second full fiscal
year of noncompliance; and
(iv) Up to 50 percent of MCSAP funds for the third and any
subsequent full fiscal year of noncompliance.
(e) Judicial review. Any State aggrieved by an adverse decision
under this section may seek judicial review under 5 U.S.C. chapter 7.
Subpart C--MCSAP Required Compatibility Review
Sec. 350.301 What is the purpose of this subpart?
The purpose of this subpart is to assist States receiving MCSAP
funds to address compatibility, including the availability of variances
or exemptions allowed under Sec. 350.305 or Sec. 350.307, to:
(a) Promote adoption and enforcement of compatible safety laws and
regulations, standards, and orders;
(b) Provide for a continuous review of safety laws and regulations,
standards, and orders;
(c) Establish deadlines for States to achieve compatibility; and
(d) Provide States with a process for requesting exemptions for
intrastate commerce.
Sec. 350.303 How does a State ensure compatibility?
(a) General. The Lead State Agency is responsible for reviewing and
analyzing State safety laws and regulations, standards, and orders to
ensure compatibility.
(b) Compatibility deadline. As soon as practicable, but no later
than 3 years after the effective date of any new addition or amendment
to the FMCSRs or HMRs, the State must amend its laws and regulations,
standards, and orders to ensure compatibility.
(c) State adoption of CMV law or regulation. A State must submit to
FMCSA a copy of any new or amended State safety law and regulation,
standard, and order relating to CMV safety immediately after its
enactment or issuance and with the State's next annual compatibility
review.
(d) Annual State compatibility review. (1) A State must conduct a
review of its laws and regulations, standards, and orders relating to
CMV safety, including those of its political subdivisions, for
compatibility and report in the CVSP, or annual update, as part of its
application for funding under Sec. 350.209 each fiscal year.
(2)(i) The State must demonstrate whether its laws and regulations,
standards, and orders relating to CMV safety are identical to or have
the same effect as a corresponding provision of the FMCSRs, are in
addition to or more stringent than provisions of the FMCSRs, or are
less stringent than a corresponding provision of the FMCSRs.
(ii) If a State's law or regulation, standard, or order relating to
CMV safety is identical to or has the same effect as the corresponding
provision of the FMCSRs, the State provision is enforceable.
(iii) If a State's law or regulation, standard, or order relating
to CMV safety is in addition to or more stringent than the provisions
of the FMCSRs, in order to be enforceable, the State must demonstrate
that:
(A) The State provision has a safety benefit;
(B) It is compatible with the FMCSRs; and
(C) Enforcement would not cause an unreasonable burden on
interstate commerce.
(iv) If a State's law or regulation, standard, or order relating to
CMV safety is less stringent than the FMCSRs, it is not enforceable,
unless it falls within the provisions of Sec. Sec. 350.305 or 350.307.
(3) The State must demonstrate that its laws and regulations,
standards, and orders relating to CMV safety applicable to both
interstate and intrastate commerce are identical to the corresponding
provision of the HMRs.
(4) The State's laws and regulations, standards, and orders
relating to CMV safety reviewed for the commercial driver's license
compliance report are excluded from the compatibility review.
(5) Definitions of words or terms in a State's laws and
regulations, standards, and orders relating to CMV safety must be
compatible with those in the FMCSRs and HMRs.
(e) Reporting to FMCSA. (1) The reporting required by paragraph (d)
of this section, to be submitted with the CVSP or annual update, must
include:
(i) A copy of any State law or regulation, standard, or order
relating to CMV safety that was adopted or amended since the State's
last report; and
(ii) A certification that states the annual review was performed
and State laws and regulations, standards, and orders relating to CMV
safety remain compatible, and that provides the name of the individual
responsible for the annual review.
(2) If State laws and regulations, standards, and orders relating
to CMV safety are no longer compatible, the certifying official must
explain the State's plan to correct the discrepancy.
(f) FMCSA response. Not later than 10 days after FMCSA determines
that a State law or regulation, standard, or order may not be enforced,
FMCSA must give written notice of the decision to the State.
(g) Waiver of determination. (1) A State or any person may petition
the Administrator for a waiver of a decision by the Administrator that
a State law or regulation, standard, or order may not be enforced.
(2) Before deciding whether to grant or deny a waiver under this
paragraph, the Administrator shall give the petitioner an opportunity
for a hearing on the record.
(3) If the State or person demonstrates to the satisfaction of the
Administrator that the waiver is consistent with the public interest
and the safe operation of CMVs, the Administrator shall grant the
waiver as expeditiously as practicable.
Sec. 350.305 What specific variances from the FMCSRs are allowed for
State laws and regulations and not subject to Federal jurisdiction?
(a) General. (1) Except as otherwise provided in this section, a
State may exempt a CMV from all or part of its laws or regulations
applicable to intrastate commerce, if the gross vehicle weight rating,
gross combination weight rating, gross vehicle weight, or gross
combination weight does not equal or
[[Page 44186]]
exceed 11,801 kilograms (26,001 pounds).
(2) A State may not exempt a CMV from laws or regulations under
paragraph (a)(1) of this section if the vehicle:
(i) Transports hazardous materials requiring a placard; or
(ii) Is designed or used to transport 16 or more people, including
the driver.
(b) Non-permissible exemptions--Type of business operation. (1)
Subject to paragraph (b)(2) of this section and Sec. 350.307, State
laws and regulations applicable to intrastate commerce may not grant
exemptions based on the type of transportation being performed (e.g.,
for-hire carrier, private carrier).
(2) A State may retain those exemptions from its motor carrier
safety laws and regulations that were in effect before April 1988, are
still in effect, and apply to specific industries operating in
intrastate commerce, provided the scope of the original exemption has
not been amended.
(c) Non-permissible exemptions--Distance. (1) Subject to paragraph
(c)(2) of this section, State laws and regulations applicable to
intrastate commerce must not include exemptions based on the distance a
motor carrier or driver operates from the work reporting location.
(2) Paragraph (c)(1) of this section does not apply to distance
exemptions contained in the FMCSRs.
(d) Hours of service. State hours-of-service limitations applied to
intrastate transportation may vary to the extent that they allow:
(1) A 12-hour driving limit, provided that a driver of a CMV is not
permitted to drive after having been on duty more than 16 hours;
(2) Driving prohibitions for drivers who have been on duty 70 hours
in 7 consecutive days or 80 hours in 8 consecutive days; or
(3) Extending the 100-air mile radius under Sec. 395.1(e)(1)(i) to
a 150-air mile radius.
(e) Age of CMV driver. All intrastate CMV drivers must be at least
18 years of age.
(f) Driver physical conditions. (1) Intrastate drivers who do not
meet the physical qualification standards in Sec. 391.41 of this
chapter may continue to be qualified to operate a CMV in intrastate
commerce if:
(i) The driver was qualified under existing State law or regulation
at the time the State adopted physical qualification standards
consistent with the Federal standards in Sec. 391.41 of this chapter;
(ii) The otherwise non-qualifying medical or physical condition has
not substantially worsened; and
(iii) No other non-qualifying medical or physical condition has
developed.
(2) The State may adopt or continue programs granting variances to
intrastate drivers with medical or physical conditions that would
otherwise be non-qualifying under the State's equivalent of Sec.
391.41 of this chapter if the variances are based on sound medical
judgment combined with appropriate performance standards ensuring no
adverse effect on safety.
(3) A State that has in effect physical qualification standards or
variances continued in effect or adopted by the State under this
paragraph for drivers operating CMVs in intrastate commerce has the
option not to adopt laws and regulations that establish a separate
registry of medical examiners trained and qualified to apply such
physical qualification standards or variances.
(g) Additional variances. A State may apply to the Administrator
for a variance from the FMCSRs not otherwise covered by this section
for intrastate commerce. The variance will be granted only if the State
satisfactorily demonstrates that the State safety law or regulation,
standard, or order:
(1) Achieves substantially the same purpose as the similar Federal
regulation;
(2) Does not apply to interstate commerce; and
(3) Is not likely to have an adverse impact on safety.
Sec. 350.307 How may a State obtain a new exemption for State laws
and regulations for a specific industry involved in intrastate
commerce?
FMCSA will only consider a State's request to exempt a specific
industry from all or part of a State's laws or regulations applicable
to intrastate commerce if the State submits adequate documentation
containing information allowing FMCSA to evaluate:
(a) The type and scope of the industry exemption request, including
the percentage of the industry it affects, number of vehicles, mileage
traveled, and number of companies it involves;
(b) The type and scope of the requirement to which the exemption
would apply;
(c) The safety performance of that specific industry (e.g., crash
frequency, rates, and comparative figures);
(d) Inspection information (e.g., number of violations per
inspection, and driver and vehicle out-of-service information);
(e) Other CMV safety regulations that other State agencies not
participating in MCSAP enforce;
(f) The commodity the industry transports (e.g., livestock or
grain);
(g) Similar exemptions granted and the circumstances under which
they were granted;
(h) The justification for the exemption; and
(i) Any identifiable effects on safety.
Sec. 350.309 What are the consequences if a State has provisions
that are not compatible?
(a) General. To remain eligible for MCSAP funding, a State may not
have in effect or enforce any State law or regulation, standard, or
order relating to CMV safety in commerce that the Administrator finds
not to be compatible.
(b) Process. FMCSA may initiate a proceeding to withdraw the
current CVSP approval or withhold MCSAP funds in accordance with Sec.
350.231:
(1) If a State enacts a law or regulation, standard, or order
relating to CMV safety that is not compatible;
(2) If a State fails to adopt a new or amended FMCSR or HMR within
3 years of its effective date; or
(3) If FMCSA finds, based on its own initiative or on a petition of
a State or any person, that a State law, regulation, or enforcement
practice relating to CMV safety, in either interstate or intrastate
commerce, is not compatible.
(c) Hazardous materials. Any decision regarding the compatibility
of a State law or regulation, standard, or order relating to CMV safety
with the HMRs that requires an interpretation will be referred to the
Pipeline and Hazardous Materials Safety Administration of the United
States Department of Transportation for interpretation before
proceeding under Sec. 350.231.
Subpart D--High Priority Program
Sec. 350.401 What is the High Priority Program?
The High Priority Program is a competitive financial assistance
program available to States, local governments, Federally-recognized
Indian tribes, other political jurisdictions, and other persons to
carry out high priority activities and projects that augment motor
carrier safety activities and projects. The High Priority Program also
promotes the deployment and use of innovative technology by States for
CMV information systems and networks. Under this program, the
Administrator may make competitive grants to and enter into cooperative
agreements with eligible entities to carry out high priority activities
and projects that augment motor carrier safety activities and projects.
The Administrator also may award grants to
[[Page 44187]]
States for projects planned in accordance with the Innovative
Technology Deployment Program.
Sec. 350.403 What are the High Priority Program objectives?
FMCSA may use the High Priority Program funds to support, enrich,
or evaluate CMV safety programs and to:
(a) Target unsafe driving of CMVs and non-CMVs in areas identified
as high-risk crash corridors;
(b) Improve the safe and secure movement of hazardous materials;
(c) Improve safe transportation of goods and passengers in foreign
commerce;
(d) Demonstrate new technologies to improve CMV safety;
(e) Support participation in PRISM and safety data improvement
projects by Lead State Agencies:
(1) Before October 1, 2020, to achieve full participation in PRISM;
and
(2) Beginning on October 1, 2020, or once full participation in
PRISM is achieved, whichever is sooner, to conduct special initiatives
or projects that exceed routine operations for participation;
(f) Support participation in PRISM and safety data improvement
projects by entities other than Lead State Agencies;
(g) Support safety data improvement projects conducted by:
(1) Lead State Agencies for projects that exceed MCSAP safety data
requirements; or
(2) Entities other than Lead State Agencies for projects that meet
or exceed MCSAP safety data requirements;
(h) Advance the technological capability and promote the Innovative
Technology Deployment of intelligent transportation system applications
for CMV operations;
(i) Increase public awareness and education on CMV safety; and
(j) Otherwise improve CMV safety.
Sec. 350.405 What conditions must an applicant meet to qualify for
High Priority Program funds?
(a) States. To qualify for High Priority Program funds, a State
must:
(1) Participate in MCSAP under subpart B of this part; and
(2) Prepare a proposal that is responsive to the High Priority
Program Notice of Funding Opportunity (NOFO).
(b) Other applicants. To qualify for High Priority Program funds,
applicants other than States must, to the extent applicable:
(1) Prepare a proposal that is responsive to the NOFO;
(2) Except for Federally-recognized Indian tribes, coordinate the
proposal with the Lead State Agency to ensure the proposal is
consistent with State and national CMV safety program priorities;
(3) Certify that the applicant has the legal authority, resources,
and trained and qualified personnel necessary to perform the functions
specified in the proposal;
(4) Designate an individual who will be responsible for
implementation, reporting, and administering the approved proposal and
who will be the primary contact for the project;
(5) Agree to prepare and submit all reports required in connection
with the proposal or other conditions of the grant or cooperative
agreement;
(6) Agree to use the forms and reporting criteria required by the
Lead State Agency or FMCSA to record work activities to be performed
under the proposal;
(7) Certify that a political jurisdiction will impose sanctions for
violations of CMV and driver laws and regulations that are consistent
with those of the State; and
(8) Certify participation in national databases appropriate to the
project.
Sec. 350.407 How and when does an eligible entity apply for High
Priority Program funds?
FMCSA publishes application instructions and criteria for eligible
activities to be funded under this subpart in a NOFO at least 30 days
before the financial assistance program application period closes.
Sec. 350.409 What response will an applicant receive under the High
Priority Program?
(a) Approval. If FMCSA awards a grant or cooperative agreement, the
applicant will receive a grant agreement to execute.
(b) Denial. If FMCSA denies the grant or cooperative agreement, the
applicant will receive a notice of denial.
Sec. 350.411 How long are High Priority Program funds available to a
recipient?
(a) General. High Priority Program funds related to motor carrier
safety activities under Sec. 350.403 paragraphs (a) through (g), (i),
and (j) obligated to a recipient are available for the rest of the
fiscal year that the funds are obligated and the next 2 full fiscal
years.
(b) Innovative Technology Deployment. High Priority Program funds
for Innovative Technology Deployment activities under Sec. 350.403(h)
obligated to a State are available for the rest of the fiscal year that
the funds were obligated and the next 4 full fiscal years.
Sec. 350.413 What are the Federal and recipient shares of costs
incurred under the High Priority Program?
(a) Federal share. FMCSA will reimburse at least 85 percent of the
eligible costs incurred under the High Priority Program.
(b) Match. In-kind contributions are acceptable in meeting the
recipient's matching share under the High Priority Program if they
represent eligible costs, as established by 2 CFR parts 200 and 1201
and FMCSA policy.
(c) Waiver. The Administrator reserves the right to reduce or waive
the recipient's matching share in any fiscal year:
(1) As announced in the NOFO; or
(2) As determined by the Administrator on a case-by-case basis.
Sec. 350.415 What types of activities and projects are eligible for
reimbursement under the High Priority Program?
Activities that fulfill the objectives in Sec. 350.403 are
eligible for reimbursement under the High Priority Program.
Sec. 350.417 What specific costs are eligible for reimbursement
under the High Priority Program?
(a) Costs eligible for reimbursement. All costs relating to
activities eligible for reimbursement must be necessary, reasonable,
allocable, and allowable under this subpart and 2 CFR parts 200 and
1201. The eligibility of specific costs for reimbursement is addressed
in the NOFO and is subject to review and approval by FMCSA
(b) Ineligible costs. High Priority Program funds may not be used
for the:
(1) Acquisition of real property or buildings; or
(2) Development, implementation, or maintenance of a State registry
of medical examiners.
PART 355--[Removed and Reserved]
0
2. Under the authority of 49 U.S.C. 504 and 31101 et seq., remove and
reserve part 355, consisting of Sec. Sec. 355.1 through 355.25 and
appendix A to part 355.
PART 388--[Removed and Reserved]
0
3. Under the authority of 49 U.S.C. 113 and 502, remove and reserve
part 388, consisting of Sec. Sec. 388.1 through 388.8.
Issued under authority delegated in 49 CFR 1.87.
Dated: August 12, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-17763 Filed 8-21-19; 8:45 am]
BILLING CODE 4910-EX-P
