[Federal Register Volume 84, Number 163 (Thursday, August 22, 2019)]
[Proposed Rules]
[Pages 44162-44187]
[FR Doc No: 2019-17763]

Vol. 84

Thursday,

No. 163

August 22, 2019

Part V

Department of Transportation

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Federal Motor Carrier Safety Administration

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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

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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.

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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: http://www.regulations.gov.
Follow the online instructions for submitting comments.
     Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between
9 a.m. and 5 p.m. ET, Monday through Friday, except Federal holidays.
     Fax:<PHONE_NUMBER>.
    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<PHONE_NUMBER> or
by email at<EMAIL_ADDRESS>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 http://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

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 http://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.
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    \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)).
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    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

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.
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    \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.
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    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

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\
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    \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).
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    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

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)).
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    \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.
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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

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

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.

    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.

                                                     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.

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

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

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

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\

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

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

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.

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