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###### Department of Transportation

###### Federal Motor Carrier Safety Administration 

# AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT. 

# ACTION:

Notice of Interpretation of Internal Agency Document. 

# SUMMARY:

The purpose of this notice is to restate and confirm the Agency's policy regarding the purpose, use and effect of the paper and electronic versions of FMCSA's Field Operations Training Manual (FOTM and eFOTM). 

# DATES:

*Effective Date:*                         This interpretation restates policy already in effect.                     

# FOR FURTHER INFORMATION CONTACT:

                        Peter Snyder, Trial Attorney, Office of the Chief Counsel, Enforcement Division, 19900 Governors Drive, Suite 210, Olympia Fields, IL 60461, telephone (708) 283-3515; or Genevieve Sapir, Attorney-Advisor, Office of the Chief Counsel, Regulatory Affairs Division, 1200 New Jersey Avenue, SE., Washington, DC 20590, telephone (202) 366-7056.                               ( print page 24898)    

## Background 

                        The Motor Carrier Safety Improvement Act of 1999 (MCSIA) established the Federal Motor Carrier Safety Administration (“FMCSA”) as a new operating administration within the Department of Transportation, effective January 1, 2000 (Pub. L. 106-159, 113 Stat. 1748, December 9, 1999). Continuing the practice first established by FMCSA's predecessors, the Office of Motor Carriers and the Office of Motor Carrier Safety, both within the Federal Highway Administration, FMCSA issues guidance to its Field Service Centers and State Division Offices, in the form of the Field Operations Training Manual (FOTM). Volume III (Enforcement: General Functions of an Investigator) of the first FOTM, which was issued by the new operating administration in January 2000, states: “This chapter has been prepared to assist the Investigator in the performance of investigative work. The intent is to present investigative procedures which can be used while conducting all types of investigations.” This guidance is now stored and distributed in electronic format in the eFOTM, which is periodically updated as new policies are adopted in response to legislation and new program initiatives. A redacted version of the eFOTM is available in the FMCSA Electronic Reading Room at:                         *http://www.fmcsa.dot.gov/​foia/​electronicreadingroom.htm.*                         FMCSA redacted certain information from the eFOTM available at this Web site in accordance with the Freedom of Information Act.                     

                        The eFOTM is, and has been, best characterized as internal enforcement guidelines, a “best practices” guide for the Agency's Safety Investigators and other enforcement staff. It is intended to provide guidance to assist with the sound exercise of discretion in conducting investigations, compliance reviews, roadside inspections and safety audits. The United States Court of Appeals for the District of Columbia Circuit recognized that the FOTM does not impose new substantive burdens, in the sense that it neither requires nor prohibits any particular actions on the part of motor carriers.                         *Aulenback, Inc.*                         v.                         *Federal Highway Admin.,*                         103 F.3d 156, 169 (DC Cir. 1997). Instead, “the Manual simply provides guidance for [FMCSA staff] seeking to identify motor carrier operations that pose a potential danger to public safety.”                         *Id.*                         The District of Columbia Circuit has also held that since the FOTM is not a legislative rule, section 553 of the Administrative Procedure Act did not require notice and comment rulemaking to precede adoption of the manual.                         *American Trucking Ass'ns, Inc.*                         v.                         *DOT,*                         166 F.3d 374 (DC Cir. 1999).                     

## Current Policy 

                        The Agency continues to regard the FOTM and eFOTM as internal enforcement guidance; the guidance does not alter underlying substantive legal requirements and does not provide an independent basis for enforcement. The investigatory procedures set forth in the eFOTM, and whether and to what extent Agency employees follow them, are not relevant in determining whether Federal motor carrier statutes or regulations have been violated or the appropriate penalty to be assessed for such violations. If an employee fails to comply with investigative, inspection, audit or other guidelines, the Agency will address that departure from recommended procedures internally, on a case-by-case basis, and may consider disciplinary action, training or other appropriate measures. However, the Agency hereby provides public notice that it will not consider an FMCSA or State employee's failure to follow the FOTM or eFOTM guidance as a defense to penalties or violations assessed against drivers or motor carriers. An FMCSA or State employee's failure to follow the FOTM or eFOTM guidance will not excuse violations of the Federal Motor Carrier Safety Regulations, Federal Motor Carrier Commercial Regulations, or the Hazardous Materials Regulations by any person, including motor carriers and drivers, nor will it provide grounds for reducing civil penalties.                         *See In the Matter of J. Line, Inc., dba J-Line Transp.,*                         Docket No. FMCSA-2008-1087 (Administrative Law Judge's Order Denying Cross-Motions for Final Order)  (Jan. 13, 2009);                         *Swift Transp. Co., Inc.,*                         Docket No. FMCSA-2004-17248-63 (Order Respecting Field Operations Training Manual) (Jan. 12, 2007).                     

Issued on: May 19, 2009. 

Rose A. McMurray, 

Acting Deputy Administrator.

 [FR Doc. E9-12136 Filed 5-22-09; 8:45 am] 

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