OMB Approves FMCSA IFR on Non-Domiciled CDL’s

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had approved an interim final rule (IFR) for the Federal Motor Carrier Safety Administration (FMCSA) on “Restoring Integrity to the Issuance of Non-Domiciled Commercial Drivers Licenses (CDL)”. The IFR was submitted to OIRA on Thursday.

This rulemaking is obviously high-profile for the Administration with the one-day turnaround at OIRA. The IFR is scheduled to be published in Monday’s Federal Register, and is available online today. Yesterday, Secretary Duffy announced the publication of the IFR and DOT has published a fact sheet on the rulemaking.

FMCSA Sends Non-Domiciled CDL IFR to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received an interim final rule (IFR) from the DOT’s Federal Motor Carrier Safety Administration (FMCSA) on “Restoring Integrity to the Issuance of Non-Domiciled Commercial Drivers Licenses (CDL)”.

This rulemaking was not listed in the Spring 2025 Unified Agenda. It does, however, appear that it would be the first regulatory step to implement the requirements of §4 of EO 14286, Enforcing Commonsense Rules of the Road for America's Truck Drivers. That would explain the use of an IFR instead of going through the normal notice and comment rulemaking process.

NOTE: It will be interesting to see if this rulemaking has any impact the current status of Mexican and Canadian drivers not needing a non-domiciled CDL to drive trucks in the United States

I do not expect that I will be covering this rulemaking in any detail, but since it does have potential implications for transportation of chemicals (due to the general shortage of qualified truck drivers for both hazmat and non-hazmat chemical loads) I will at least mention the publication of the rule in the appropriate ‘Short Takes’ post.

FMCSA-PHMSA Publishes Nurse-Tank Safety Advisory

Earlier this month, DOT Federal Motor Carrier Safety Administration (FMCSA) and Pipeline and Hazardous Materials Safety Administration (PHMSA) published a Safety Advisory for “Possible Catastrophic Failure of Nurse Tanks and Recommendation for Periodic Testing”. The two agencies are recommending that owners of Anhydrous Ammonia Nurse Tanks manufactured by American Welding & Tank (AWT) between 2007 and 2011 “conduct voluntary periodic visual inspection in accordance with 49 CFR §173.315(m)(2)(i); thickness testing in accordance with 49 CFR §173.315(m)(2)(ii), and pressure testing in accordance with 49 CFR §173.315(m)(2)(iii).”

Generally speaking, anhydrous ammonia nurse tanks, that are considered an implement of husbandry transporting anhydrous ammonia and operated by a private motor carrier exclusively for agricultural purposes are exempted from periodic inspection requirements as long as the tank is marked with a valid, and legible ASME plate. For the purposes of this advisory, however, FMCSA and PHMSA are recommending periodic (every five years) voluntary testing in accordance with §173.315(m)(2)(iv).

According to the Safety Advisory:

“On August 23, 2023, a 2009 AWT nurse tank containing anhydrous ammonia experienced a catastrophic failure in a farm co-op lot, resulting in the release of all product. The failure caused the tank shell to “rocket” over 300 feet from its original location. While no injuries were reported, this event is an indicator of potential continuing problems with AWT nurse tanks that have now been in service for over a decade.

As a result of this incident, the owner of the nurse tank involved contracted with a third-party testing company to examine their AWT nurse tanks that were manufactured between 2008 and 2012. Radiographic testing showed that 7 of 8 the nurse tanks tested had extreme stress corrosion cracking, porosity, and inclusions/voids in the welds where the heads and shells of the nurse tanks were joined. Only the 2012 tank passed. The nurse tank owner submitted these results to engineering experts who were involved in previous research funded by FMCSA into similar issues with this series of AWT nurse tanks.1 Based on the test results and the review by the experts, the owner voluntarily placed the nurse tanks out-of-service. The parent company of the farm co-op subsequently conducted similar radiographic testing on 142 AWT nurse tanks manufactured between 2007 and 2012, and 100 failed the test. All 2012 tanks passed.”

The advisory also reports that:

“This notice focuses on nurse tanks manufactured from January 1, 2007, through December 31, 2011, by American Welding and Tank (AWT) at its Fremont, Ohio plant. Nurse tanks manufactured by AWT from 2009 to 2010 were the subject of a prior FMCSA investigation and enforcement action in response to improper manufacturing procedures.” (FMCSA press release here; AWT press release here)

FMCSA Sends Automated Driving System NPRM to OMB

Yesterday, the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received a notice of proposed rulemaking (NPRM) from the DOT’s Federal Motor Carrier Safety Administration (FMCSA) on “Motor Carrier Operation of Automated Driving System (ADS)-Equipped Commercial Motor Vehicles”. The FMCSA published an advanced notice of rulemaking (ANPRM) on this topic on May 18^th, 2019.

According to the Fall 2023 Unified Agenda entry for this rulemaking:

“FMCSA proposes to amend certain Federal Motor Carrier Safety Regulations (FMCSRs) to ensure the safe introduction of automated driving systems (ADS)-equipped commercial motor vehicles (CMVs) onto the Nation's roadways. The proposed changes to the CMV operations, inspection, repair, and maintenance regulations prioritize safety and security, promote innovation, foster a consistent regulatory approach to ADS-equipped CMVs, and recognize the difference between human operators and ADS. FMCSA has taken several actions to solicit information on issues relating to the testing and integration of ADS-equipped CMVs, including holding listening sessions beginning in 2017 and a 2018 Request for Comments Concerning Federal Motor Carrier Safety Regulations (FMCSRs) Which May Be a Barrier to the Safe Testing and Deployment of Automated Driving Systems-Equipped Commercial Motor Vehicles on Public Roads” (83 FR 12933).  FMCSA continues to attend industry conferences, road show events and meet with various developers and other stakeholders.” 

OMB Approves two Automated Driving Rules

Earlier this week the OMB’s Office of Information and Regulatory Affairs (OIRA) approved two advanced notices of proposed rulemaking (ANPRMs) from DOT agencies starting the regulatory process on two separate automated vehicle regulatory actions. The first was a rulemaking from the National Highway Transportation Safety Administration (NHTSA) on “Removing Regulatory Barriers for Automated Driving Systems”. The second was from the Federal Motor Carrier Safety Administration (FMCSA) on “Safe Integration of Automated Driving Systems-Equipped Commercial Motor Vehicles”.

Both of these rulemaking submissions were approved pretty quickly. The NHTSA ANPRM was submitted on March 14^th, 2019 and the FMCSA ANPRM on March 21^st, 2019. ANPRM’s are the first step in the rulemaking process and typically propose a list of questions that the agency would like answered by the regulated and affected communities before they actually propose regulatory action.

There is no telling when these ANPRMs will actually be published in the Federal Register. There is no procedural reason that it should be more than a couple of days, Both rulemakings were approved by OIRA ‘consistent with change’ so I suspect that it will probably be at least a month before these ANPRMs are published given the rulemaking history of the Trump Administration.

FMCSA Sends Automated Vehicle ANPRM to OMB

On Thursday the DOT’s Federal Motor Carrier Safety Administration (FMCSA) sent an advance notice of proposed rulemaking (ANPRM) to the OMB’s Office of Information and Regulatory Affairs (OIRA) for review. The ANPRM would address the “Safe Integration of Automated Driving Systems-Equipped Commercial Motor Vehicles”.

According to the abstract in the Fall 2018 Unified Agenda:

“FMCSA requests public comment about Federal Motor Carrier Safety Regulations (FMCSRs) that may need to be updated, modified, or eliminated to facilitate the safe introduction of automated driving systems (ADS) equipped commercial motor vehicles (CMVs) onto our Nation's roadways. FMCSA requests comment on specific regulatory requirements that are likely to be affected by an increased integration of ADS-equipped CMVs. However, the Agency is not seeking comments on its financial responsibility requirements because they are not directly related to CMV technologies and because future insurance requirements will depend in part on the evolution of State tort law with respect to liability for the operation of ADS-equipped vehicles.”

OMB Approves FMCSA Prohibition of Coercion Final Rule

The OMB’s Office of Information and Regulatory Affairs (OIRA) announced yesterday that it had approved the final rule for DOT’s FMCSA regulation prohibiting coercion of truck drivers to violate federal trucking safety standards. The NPRM for this rule was published in May of 2014 and drew 95 comments, many from active and former truckers.

The Unified Agenda notes that Congress required the publication of new “regulations governing commercial motor vehicle safety [to] ‘ensure ... an operator of a commercial motor vehicle is not coerced by a motor carrier, shipper, receiver, or transportation intermediary to operate a commercial vehicle in violation of a regulation promulgated under 49 U.S.C. section 31136 or chapters 51 or 313 of title 49, U.S.C.’”

This rule will probably be published next week.

Carrier Safety Fitness Determination NPRM to OMB

Yesterday the OMB’s Office of Information and Regulatory Affairs (OIRA) announced that it had received from DOT’s Federal Motor Carrier Safety Administration a draft of their notice of proposed rulemaking changing the safety fitness determination program.

The Unified Agenda describes the rule this way:

“FMCSA proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to adopt revised methodologies that would result in a safety fitness determination (SFD). The proposed methodologies would determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce based on (1) the carrier’s performance in relation to five of the Agency’s Behavioral Analysis and Safety Improvement Categories (BASICs); (2) an investigation; or (3) a combination of on-road safety data and investigation information. The intended effect of this action is to reduce crashes caused by CMV drivers and motor carriers that result in death, injuries, and property damage on U.S. highways by more effectively using FMCSA data and resources to identify unfit motor carriers and remove them from the Nation’s roadways.”

This rulemaking was first published in the Unified Agenda in 2007.

OMB Approves Revised FMCSA Hazmat Permit ICR

The OMB’s Office of Information and Regulatory Affairs (OIRA) announced yesterday that it had approved the revised information collection request (ICR) renewal of the DOT’s Federal Motor Carriers Safety Administration (FMCSA) for their hazardous materials safety permit program. This information collection requires motor carriers to provide estimates of their anticipated annual shipments of hazardous materials (HM), complete application forms, provide shipment estimates, and communication records to the FMSCA.

As I noted in my blog post about the 60-day ICR notice publication FMCSA more than doubled their estimate of the burden hours associated with this document due to the increased numbers of trucks permitted to handle the hazardous material loads covered under the requirements of 49 USC 5109.

Since the safety permit program referred to in this ICR is a carrier permit program and not a vehicle permit program, FMCSA must estimate the number of vehicles covered under the requirements of this ICR based upon information in the Motor Carrier Management Information System. The previous ICR submission showed an estimate of 15,000 trucks making 280 hazmat shipments per year against this submission’s estimate of 41,500 trucks making 280 hazmat shipments per year. That is almost a three-fold increase in the rate of hazmat shipments in just three years.

There were three public comments (here, here and here) on the 60-day ICR notice that FMCSA responded to in their 30-day ICR notice. One comment was effectively not related to the ICR and the other two addressed the additional burden associated with advanced load tracking techniques that are not required under this program.

FMCSA Submits Unified Registration Rule to OMB

On Friday the Office of Management and Budget (OMB) announced that the Federal Motor Carrier Safety Administration had submitted for OMB review their final rule for the establishment of the Uniform Registration System. The URS would serve as an on-line clearinghouse and depository of information on, and identification of, motor carriers, brokers, freight forwarders, and others required to register with the Department of Transportation.

This rule has been long in the making with an initial legislative deadline for publication in 1998. The initial advance notice of proposed rulemaking (ANPRM) dates back to 1996 (61 FR 43816). The initial NPRM was published in 2005 (70 FR 28990) with a supplemental NPRM in 2011 (76 FR 66506).

Given the controversial nature of the expansion of FMCSA regulations proposed in this rule, I suspect that it will take even longer than normal for OMB to approve the publication of the final rule in the Federal Register.

FMCSA Accepts HMSP Petition – Will it Increase Safety?

Yesterday I did a brief on-line article (subscription required) for the Journal of Hazmat Transportation about the recent acceptance by the Federal Motor Carrier Safety Administration of a petition for rulemaking submitted by a group of industry organizations representing a number of different types of hazmat shippers. The petition was for changes to the procedures and methodologies used in determining which motor carriers would be disqualified from receiving Hazardous Materials Safety Permits (HMSP) based upon their safety records.

Without going into a great deal of detail the current regulations, 49 CFR 385.407, prohibits FMCSA from awarding HMSPs to carriers who rank in the top 30% in any of three measures of out-of-service (OOS) rates. Those rates are calculated at two year intervals and HMSPs are issue for the subsequent two years.

The industry organizations were concerned because decreasing OOS rates in two categories have made it more difficult for carriers to determine if their safety programs would provide low enough OOS rates to allow them to continue to carry hazardous materials. They noted that a carrier’s OOS rates could remain static and they could still inch up into the ‘bad’ 30% and loose some lucrative business.

Shippers are concerned because the way the OOS rate restrictions are applied (in the top 30% in any category) can result in substantially more than 30% of the carriers being ineligible to carry hazardous materials. This makes it more difficult for them to ensure that they have carriers available to carry their hazardous materials in a timely and economically viable manner.

From the point of view of a co-user of the nation’s highways, I’m not sure that I can sympathize with either the carriers or shippers. If decreasing OOS rates are truly reliable measures of transportation safety (lower OOS = safer carrier), then the lowering rates mean that safety is increasing. The carriers that cannot also lower their OOS rates are therefore not as safe (again if the OOS rates are a true measure of safety) as those that do. It seems to me that the carriers that have the standards raised above their safety record are just those carriers that we would rather not continue to have carrying hazardous materials.

Long-haul Truck Drivers from Mexico

Wednesday the Federal Motor Carriers Safety Administration published a notice in the Federal Register about their pilot program to allow ‘Mexico-domiciled’ motor carriers to provide international cargo delivery service throughout the United States. Readers who are also subscribers to the Journal of Hazmat Transportation will have already received notice of a description of that program that I did for that publication. Here I would like to take brief look at some of the chemical security implications of that program.

FMCSA does attempt to address potential security issues dealing with trucks entering the United States from a country that has been described as one of the greatest potential security threats to the United States due to their current civil war with the drug cartels.

Security Screening

First FMCSA is requiring that any carrier and driver in the program undergo a security screening. The notice states that:

“FMCSA would submit information on the applicant motor carriers and their drivers designated for long-haul operations in the pilot program to DHS for security screening.” (76 FR 20811)

FMCSA provides a partial list of findings that might preclude a carrier/driver from participating in the program. It includes:

• Providing false or incomplete information;

• Conviction of any criminal offense or pending criminal charges or outstanding warrants;

• Violation of any customs, immigration or agriculture regulations or laws;

• The carrier or driver is the subject of an ongoing investigation by any Federal, State or local law enforcement agency; or

• The motor carrier or driver is inadmissible to the United States under immigration regulations, including applicants with approved waivers of inadmissibility or parole documentation

The problem that is not addressed is the question about the information that DHS would be able to rely upon to complete this screening. The government corruption in Mexico that is part and parcel of the drug cartel problem should bring into question any information provided by that government to DHS. The fact that the corruption is reportedly expanding across the border to include law enforcement (Federal, State and local) in the United States only emphasizes the extent of the problem.

Even if accurate information were available to DHS there is no way to ensure that the person investigated is the person driving the truck. DHS is still having problems establishing standards in the United States to improve the reliability of information on driver’s licenses. The wide spread fraud and corruption in Mexico make any reliance on a Mexican government identification document and exercise in futility at best. A requirement for some sort of a US-issued, biometrically-based identification (TWIC?) might mitigate this concern.

Hazardous Material Carriage

FMCSA does try to limit any potential security implications by ensuring that “operating authority granted under the pilot program excludes the transportation of placardable quantities of hazardous materials” (76 FR 20811). This would seem to limit the possibility of the use of legitimate chemical cargo as a weapon of mass destruction.

Of course the only way to really tell what is in a tank wagon is to open it up and test the contents. This will not happen at the border, or at traffic stops, or at road-side inspections. The only thing about the load that will be checked is the paperwork. Of course terrorists would not forge paperwork (pardon the sarcasm).

The same thing could be done with a load originating in the United States, but it would be more difficult. In the drug gang controlled portions of Mexico all it would take is the order of a gang functionary for a legitimate tank wagon to be diverted to be loaded with chemicals to turn it into a weapon. In a domestically sourced shipment there would presumably be safeguards put into place to ensure that this does not happen (I know; there are no legal requirements for those safeguard, but DHS continues to promise the formulation of transportation security rules).

Oh well, international relations and politics will almost certainly ensure that these issues will be ignored in the development and implementation of this plan for allowing long-haul truck drivers from Mexico to expand their authorized use of US highways. High-risk chemical-facility security-managers should not assume however that FMCSA rules have some how reduced the potential risk.

NOTE: FMCSA is requesting public comments on this proposed pilot program. Comments need to be submitted by May 13, 2011. Comments may be submitted on the Federal eRulemaking Portal (www.regulations.gov; Docket # FMCSA-2011-0097).