[Federal Register Volume 74, Number 99 (Tuesday, May 26, 2009)]
[Notices]
[Pages 24897-24898]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-12136]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration


Purpose, Use and Effect of Field Operations Training Manual.

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of Interpretation of Internal Agency Document.

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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.

[[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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