ICC Termination Act; implementation: Motor carriers of property; reporting requirements,

[Federal Register: November 3, 1998 (Volume 63, Number 212)]

[Proposed Rules]

[Page 59263-59274]

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[DOCID:fr03no98-31]

DEPARTMENT OF TRANSPORTATION

Bureau of Transportation Statistics

49 CFR Part 1420

[Docket No. BTS-98-4659]

RIN 2139-AA05

Revision to Reporting Requirements for Motor Carriers of Property

AGENCY: Bureau of Transportation Statistics, DOT.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Bureau of Transportation Statistics (BTS) proposes to adopt new accounting and reporting provisions that would provide data for current needs while significantly reducing the annual compliance burden. This rulemaking is being conducted to implement portions of the ICC Termination Act of 1995, which transferred the motor carrier financial and operating data collection program to the Department of Transportation and made several changes to the motor carrier program. Class I motor carriers would file much shortened quarterly reports and file a simplified annual report form based largely on the current Form M-2. Class II carriers would continue filing only annually and would use the same simplified form as class I carriers. In addition, the Bureau proposes a system for considering requests for exemptions from filing and from public release of data. With this document, BTS is also withdrawing its proposal to establish a negotiated rulemaking advisory committee to assist in developing the regulations. This rulemaking action is taken on the Bureau's initiative.

DATES: Comments must be submitted by December 3, 1998.

ADDRESSES: Please direct comments to the Docket Clerk, Docket No. BTS- 98-4659, Department of Transportation, 400 Seventh Street, SW., Room PL-401, Washington, D.C. 20590, from 10 a.m. to 5 p.m. ET, Monday through Friday, except Federal Holidays.

Comments should identify the regulatory docket number and be submitted in duplicate to the address listed above. Commenters wishing the Department to acknowledge receipt of their comments must submit with those comments a self-addressed stamped postcard on which the following statement is made: Comments on Docket BTS-98-4659 . The Docket Clerk will date stamp the postcard and mail it back to the commenter.

If you wish to file comments using the Internet, you may use the U.S. DOT Dockets Management System website at http://dms.dot.gov. Please follow the instructions online for more information.

FOR FURTHER INFORMATION CONTACT: David Mednick, K-2, Bureau of Transportation Statistics, 400 Seventh Street, SW., Washington, DC 20590; (202) 366-8871; fax: (202) 366-3640; e-mail: david.mednick@bts.gov.

SUPPLEMENTARY INFORMATION:

1. Electronic Access

   All comments submitted will be available for examination in the Rules Docket both before and after the closing date for comments. Internet users can access all comments received by the U.S. DOT Dockets, Room PL401, at the address: http://dms.dot.gov. Please follow the instructions online for more information and help.

   An electronic copy of this document may be downloaded using a modem and suitable communications software from the Federal Register Electronic Bulletin Board Service at (202) 512-1661. If you have access to the Internet, you can obtain an electronic copy at http:// www.access.gpo.gov/su--2/3docs/aces/aces140.html or http://www.bts.gov/ mcs/rulemaking.html.

2. Background

   Authority

   The Secretary of Transportation has authority to establish regulations for the collection of certain data from motor carriers of property and others. Section 103 of the ICC Termination Act of 1995, Pub. L. 104-88, 109 Stat. 803 (1995) (codified at 49 U.S.C. 14123). This authority has been delegated to the Director of the Bureau of Transportation Statistics (BTS). 49 CFR 1.71.

   Brief History of the Program

   The Interstate Commerce Commission (ICC) collected financial data from

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   regulated motor carriers from the 1930's until its sunset at the end of 1995, when data collection was transferred to the Department of Transportation (DOT). See 49 U.S.C. 11145 and its implementing regulations at 49 CFR Part 1420.\1\ Between 1978 and 1994, ICC significantly reduced the reporting requirements. It substantially shortened report forms and eased record retention requirements. These changes followed the shift in the ICC's focus from close economic regulation of the motor carrier industry to industry oversight. The last revision to accounting and reporting requirements, ICC's Ex Parte No. MC-206, 10 I.C.C.2d 329 (1994), contains additional background information.

   \1\ The regulations were recently transferred from 49 CFR Part 1249 to 49 CFR Part 1420. See Reports of Motor Carriers; Redesignation of Regulations Pursuant to the ICC Termination Act of 1995, 63 FR 52192 (September 30, 1998).

   The Current Program

   The data collection program, as currently specified, has been in place since 1994, and is set forth in 49 CFR Part 1420. For motor carriers of property, the current regulations create three classes of carriers based on revenue. Class I carriers are those with annual operating revenues of $10 million or more, and they file annual report Form M-1 and quarterly report Form QFR. Class II carriers have annual operating revenues of between $3 and 10 million, file a simpler annual report, Form M-2, and do not file a quarterly report. Class III carriers have annual operating revenues of less than $3 million and are not required to file any periodic financial reports.

   Unless otherwise prohibited by law, individual carrier reports are made available to the public. BTS is aware of three federal agencies that use the data regularly--the Bureau of Economic Analysis (in developing the national accounts), the Department of Defense's Military Traffic Command (to help assess potential carriers for shipping military goods), and the General Services Administration (to help in evaluating its shipment rates). Other agencies have used the data for special studies. Private sector users include motor carriers, shippers, industry analysts, labor unions, segments of the insurance industry, investment analysts, and the consultants and data vendors that support these users.

   The New Statutory Provisions

   This rulemaking is being conducted to implement the ICC Termination Act of 1995 (the Act), which abolished the ICC and transferred some former ICC functions to DOT. Revision is necessary because the Act made several changes to the program. Similar to the legislation replaced by the Act, then codified at 49 U.S.C. 11145, the Act requires DOT to collect certain data from motor carriers of property and motor carriers of passengers:

   The Secretary shall require Class I and Class II motor carriers to file with the Secretary annual financial and safety reports, the form and substance of which shall be prescribed by the Secretary; except that, at a minimum, such reports shall include balance sheets and income statements.

   The former 49 U.S.C. 11145 did not explicitly charge ICC to collect information relevant to safety and did not specify minimum data to be collected. The Act also allows DOT to collect certain other data as needed:

   The Secretary may require motor carriers, freight forwarders, brokers, lessors, and associations, or classes of them as the Secretary may prescribe, to file quarterly, periodic, or special reports with the Secretary and to respond to surveys concerning their operations.

   The Act specifies the criteria to be used in designing the reporting program. DOT must consider: (1) safety needs; (2) the need to preserve confidential business information and trade secrets and prevent competitive harm; (3) private sector, academic, and public use of information in the reports; and (4) the public interest. In the Act, Congress has also explicitly called on DOT to ``streamline and simplify'' these reporting requirements to the maximum extent practicable.

   Unlike the former 49 U.S.C. 11145, the Act authorizes two types of exemptions from the reporting requirements. Each exemption is based on certain criteria and is granted for a three-year period. The first is an exemption from filing report forms. The requestor ``must demonstrate, at a minimum, that an exemption is required to avoid competitive harm and preserve confidential business information that is not otherwise publicly available.'' The second is an exemption from public release of data reported by the carrier. Similar to the other exemption, the requestor must demonstrate that ``the exemption requested is necessary to avoid competitive harm and to avoid the disclosure of information that qualifies as a trade secret or privileged or confidential information under section 552(b)(4) of title 5.'' Further, for the latter exemption the requestor must not be a publicly held corporation or must not be subject to financial reporting requirements of the Securities and Exchange Commission.

   In addition to implementing the Act, the proposed changes are being made within the framework of other policies and in light of current conditions. The Paperwork Reduction Act of 1995 set a government-wide goal for the reduction of information collection burdens by at least 25 percent by the end of fiscal year 1998 and calls on agencies to improve the quality and use of federal information to strengthen decision making, accountability, and openness in government and society. The President's Regulatory Reinvention Initiative asked agencies to reduce by half the frequency of reports that the public is required to provide. As the motor carrier industry continues to experience structural changes and with the sunset of the ICC, the data needs of the public and private sectors have changed. Modernization must also take into account recent significant improvements in technologies to collect, process, and disseminate data.

   Proposed Changes Regarding the Reporting Forms

   In determining the data items to be collected, BTS started with the income statement and balance sheet of the current Form M-2, since these elements are required under the new Act. From this starting point, data items, and the amount of detail for data items, were added or subtracted. In applying the four criteria, BTS received information from a variety of sources: comments received during the recent renewal process for Forms M-1, M-2, and QFR, comments received during the proposal to conduct negotiated rulemaking, customer feedback, and experience gained in administering the data collection program. Based on these, BTS is proposing several changes to the reporting requirements. As detailed below, we invite your comments on this proposal.

   Under the proposal, both class I and class II carriers would submit annually a modified version of Form M-2 to be called Form M. Quarterly reporting would be retained for class I carriers but would be drastically reduced. The Bureau believes that the information on the new Form M and on the modified QFR would serve the large majority of current information needs, while reducing the burden on industry by 45 percent. The number of data items for Form M would be slightly less than the current Form M-2's and we estimate respondent burden would drop from ten hours to nine for class II carriers. Class I carriers would experience a greater decrease, from the current 25 burden hours for Form M-1 to nine hours for the new form. We estimate that the burden hours for the new Form QFR would be reduced from two hours to a

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   half hour. The change in reporting burden is summarized in the tables below.

   Burden hours/report Number of -------------------------- Total hours carriers Annual Quarterly

   Current

   Class I.....................................................

   900

   25

   2 29,700 Class II....................................................

   1,900

   10 ........... 19,000

   Total...................................................

   2,800 ........... ........... 48,700

   Under proposed changes

   Class I.....................................................

   900

   9

   .5

   9,900 Class II....................................................

   1,900

   9 ........... 17,100

   Total...................................................

   2,800 ........... ........... 27,000

   Proposal regarding public release of data

   Unlike the former 49 U.S.C. 11145, the Act explicitly authorizes two types of exemptions--an exemption from the reporting requirements and an exemption from public release of data. For each, the requestor must demonstrate, at a minimum, that the exemption is required to avoid competitive harm. If a carrier meets the applicable standard and is granted confidentiality, business information would not be publicly disclosed. The carrier would then no longer qualify for an exemption from filing. Therefore, BTS proposes to consider only requests for exemptions from public release, and not for exemptions from reporting requirements. With confidentiality protection, confidential information would not be released publicly, and competitive harm would no longer be a concern.

   Under the Act, 49 U.S.C. 14123(c), requests for confidentiality must go through a notice and comment period and DOT must make a decision within 90 days of the request. BTS proposes the following procedure. Petitions relating to a current year's report must be received by the report's due date. The petition can be made either before submission of the report or simultaneous with submission. Carriers filing a petition after a report's deadline will not be able to later request confidentiality for the report. The report either would have already been submitted, and therefore already been available to the public, or the report should have been submitted but was not. Regarding content of the petition, at a minimum it must contain specific evidence that the carrier is likely to suffer competitive harm.

   DOT will publish a Federal Register notice listing the petitions received for a given report and announcing a 30-day public comment period. DOT will make a decision on the petitions within 90 days of the report's due date. By waiting until all petitions for exemptions are received for a given report, those who wish to comment will be able to do so at one time rather than throughout the year. DOT will not release a petitioning carrier's reports to the public while its petition is pending.

   Copies of the Forms

   You can request copies of current or proposed forms from the contact listed in this notice. If you have access to the Internet, you can also obtain copies at http://www.bts.gov/mcs/rulemaking.htm.

   Proposal To Establish a Negotiated Rulemaking Advisory Committee

   BTS had earlier proposed establishing a negotiated rulemaking advisory committee in 61 FR 64849 (Dec. 9, 1996). The committee was to consider relevant issues and attempt to reach a consensus in developing regulations to implement the ICC Termination Act of 1995 regarding motor carriers of property. After receiving comments on this proposal and holding a public meeting on the subject, BTS determined that this process would not provide a significant advantage over conventional informal rulemaking. One of the factors to consider before choosing negotiated rulemaking is whether there is a reasonable likelihood that a committee will reach consensus on the proposed rule within a fixed period of time. BTS believes that consensus would not be reached in these circumstances on several of the issues, primarily on public release of the reports.

3. Request for Comments

   The goal of this proposed rulemaking is to reach an equitable and practical balance, within the context of the ICC Termination Act of 1995, between the need for information and the goal of reducing reporting burden. BTS examined the accounting and reporting requirements in an effort to continue collecting meaningful data on the motor carrier industry while streamlining these requirements where possible. This proposal would create a simplified report for those carriers earning over $10 million in annual operating revenues while continuing to provide data helpful to understanding the industry. It would also implement a process for companies to seek confidentiality protection to avoid competitive harm. BTS requests comments concerning the above revisions to the information collection. You may wish to address one or more of the following topics: (1) Whether particular data items should be included or deleted from the annual and quarterly reporting requirements and why; (2) whether the instructions for the data items should be carried over from the current forms or whether they should be modified; (3) whether BTS should continue quarterly reporting; (4) how your comments to the proposal relate to the four areas of consideration listed in 49 U.S.C. 14123(b); (5) whether BTS accurately estimated the reporting burden and costs; (6) how BTS can minimize reporting burden, including the use of automated collection techniques or other forms of information technology; (7) the proposed process for handling requests for exemptions; (8) ways to reduce the burden on any segments of the industry that may be disproportionately affected, such as small entities; (9) how BTS can enhance the quality, utility, or clarity of the information collected; and (10) whether the regulations are clearly written.

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4. Rulemaking Analyses and Notices

   Executive Order 12866 and DOT Regulatory Policies and Procedures

   This proposed rule is not considered a significant regulatory action under section 3(f) of Executive Order 12866 and, therefore, is not subject to review by the Office of Management and Budget.

   This proposed rule is not considered significant under the regulatory policies and procedures of the Department of Transportation (44 FR 11034). The proposal would reduce industry reporting burden by 21,700 hours or 45 percent. BTS estimates that the annual cost of reporting to be just over $1 million for the industry. This breaks down to $418 per year for class I carriers and $342 per year for class II carriers. The estimate is based on reporting costs of $38 per hour including overhead.

   The major beneficiaries of the data collection are the federal government, the motor carrier industry, industry associations, transportation investment analysts, transportation research analysts, and motor carrier safety analysts. The program provides data that are used in developing the national accounts, data for monitoring industry trends, and data useful to the public and private sectors regarding the operation and health of the trucking industry and individual carriers.

   Executive Order 12612

   This proposed rule has been analyzed in accordance with the principles and criteria contained in Executive Order 12612 (``Federalism'') and DOT has determined the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

   Initial Regulatory Flexibility Analysis

   I certify this proposed rule will not have a significant economic impact on a substantial number of small entities. The definition of ``small business'' is contained in the Small Business Administration's small business size standard regulations. For motor carriers of property, small businesses are those with annual receipts of up to $18.5 million. Under the current classification, there are about 2,800 reporting carriers of which an estimated 2,180 (or 78 percent) are small businesses (all class II carriers and 31 percent of class I carriers are classified as small businesses). The proposed amendments would decrease reporting burden for all reporting carriers. Class I carriers would realize a 67 percent reduction in burden hours while class II would realize a 10 percent reduction.

   Environmental Assessment

   The Bureau of Transportation Statistics has analyzed the proposed amendments for the purposes of the National Environmental Protection Act. The proposed amendments will not have any impact on the quality of the human environment. Accordingly, an Environmental Impact Statement is not required.

   Initial Paperwork Reduction Act Analysis

   The reporting and record keeping requirements associated with this rule are being sent to the Office of Management and Budget in accordance with 44 U.S.C. Chapter 35 under OMB Numbers 2139-0002, 2139- 0004, and 2139-0005. Administration: Bureau of Transportation Statistics. Titles: Quarterly Report of Class I Motor Carriers of Property, Annual Report of Class I Motor Carriers of Property, and Annual Report of Class II Motor Carriers of Property. Need for Information: information on the health of the motor carrier of property industry, its impact on the economy, and industry changes that may affect national transportation policy. Frequency: Annually. Burden Estimate: 27,000 annual hours. Average Annual Burden Hours per Respondent: class I carriers--11 annual hours, class II carriers--9 annual hours. For further information contact: Office of Information and Regulatory Affairs, Office of Management and Budget, Room 10235, New Executive Office Building, Washington, DC 20503; Attention Desk Officer for the Bureau of Transportation Statistics or David Mednick at the address listed above under For Further Information Contact.

   Regulation Identifier Number

   A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN number 2139-AA05 contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

   List of Subjects in 49 CFR Part 1420

   Motor carriers, Reporting and classification.

   Proposed Rule

   Accordingly, the Bureau of Transportation Statistics proposes to amend 49 CFR Part 1420 Reports of Motor Carriers, as follows:

   PART 1420--REPORTS OF MOTOR CARRIERS

   The authority citation for Part 1420 is revised to read as follows:

   Authority: 49 U.S.C. 14123.

   2. Section 1420.1 is revised to read as follows:

      Sec. 1420.1 Annual reports of motor carriers of property, motor carriers of household goods, and dual authority carriers.

      (a) Annual Report Form M. All class I and class II common and contract carriers of property, including household goods and dual authority motor carriers, must file Motor Carrier Annual Report Form M. Carriers must file the annual report on or before March 31 of the year following the year to which it relates. For classification criteria, see Sec. 1420.2.

      (b) Quarterly Report Form QFR. All class I common motor carriers of property and class I household goods motor carriers must complete and file motor carrier Quarterly Report Form QFR (Form QFR). The quarterly accounting periods end on March 31, June 30, September 30, and December 31. The quarterly reports must be filedwithin 30 calendar days after the end of the reporting quarter.

      (c) Carriers must file the quarterly and annual reports in duplicate with the Bureau of Transportation Statistics, K-27, U.S. Department of Transportation, 400 Seventh Street, SW., Washington, DC 20590. You can obtain copies of the report forms from the Bureau of Transportation Statistics.

   3. In section 1420.2, paragraph (b)(4) is revised to read as follows:

      Sec. 1420.2 Classification of carriers--motor carriers of property, household goods carriers, and dual property carriers.

      * * * * *

      (b) * * *

      (4) Carriers must notify the Bureau of Transportation Statistics (BTS) of any change in classification or any change in annual operating revenues that would cause a change in classification. The carrier may request a waiver or an exception from the regulations in this part in unusual or extenuating circumstances, where the classification process will unduly burden the carrier, such as partial liquidation or curtailment or elimination of contracted services. The request must be in writing, specifying the conditions justifying the waiver or exception. BTS will notify the carriers of any change in classification. * * * * *

   4. In section 1420.2(b)(5), remove the term ``an Annual Report (Form M-1 or

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      Form M-2)'' and add ``Annual Report Form M'' in its place.

   5. In section 1420.2, paragraph (c) is removed (Note A is unchanged).

   6. Section 1420.6 is added to read as follows:

      Sec. 1420.6 Requests for exemptions from public release.

      (a) In general. This section governs requests for exemptions from public release of reports filedunder Sec. 1420.1.

      (b) Criteria. The Bureau of Transportation Statistics (BTS) will grant a request upon a proper showing that:

      (1) The filer is not a publicly held corporation or the filer is not subject to financial reporting requirements of the Securities and Exchange Commission; and

      (2) The exemption is necessary to avoid competitive harm and to avoid the disclosure of information that qualifies as trade secret or privileged or confidential information under 5 U.S.C. 552(b)(4).

      (c) Valid requests. For a request to be valid, it must contain, at a minimum, assertions that the request meets the criteria in paragraph (b) of this section, including specific evidence that the carrier is likely to suffer competitive harm.

      (d) Procedure. Requests for an exemption under this section may be made at any time during the year. However, a request will be deemed applicable to only those reports due on or after the date the request is received. Petitions received after a report's due date will only be considered for the following year's or quarter's report. Except as provided in this paragraph, requests must be made separately for report Forms M and QFR. After each due date of reports specified in Sec. 1420.1, DOT will publish a notice in the Federal Register listing all of the valid pending requests for an exemption from public release and giving a 30-day public comment period. DOT will grant or deny each request no later than 90 days after the due date of the report for which the request applies. DOT will either publish a notice in the Federal Register specifying whether the request was granted or denied, or will give notice directly to the carrier, or will do both. A carrier submitting a petition regarding Form M can also request that it cover Form QFR, in which case DOT will decide both requests at the same time. Assuming the carrier's fiscal year coincides with the calendar year, the following table summarizes report and petition deadlines:

      Report and petition Report

      due

      Decision due

      Annual Form M............... March 31............ June 30. First Quarter Form QFR...... April 30............ July 31. Second Quarter Form QFR..... July 31............. October 31. Third Quarter Form QFR...... October 31.......... January 31. Fourth Quarter Form QFR..... January 31.......... April 30.

      (e) Pendency. A request is deemed pending from the date it is received by BTS until it is granted or denied by BTS. BTS will not release publicly, unless otherwise required by law, any report for which a valid request for an exemption from public release is pending.

      (f) Period of exemptions. If a request for an exemption under this section is granted, BTS will not publicly release any reports covered by the granted exemption, unless otherwise required by law. Exemptions granted under this section will cover a period of three reporting years.

      Note: The following forms will not appear in the Code of Federal Regulations. Robert A. Knisely, Deputy Director.

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      [FR Doc. 98-29412Filed11-2-98; 8:45 am]

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