[Code of Federal Regulations] [Title 23, Volume 1] [Revised as of April 1, 2004] From the U.S. Government Printing Office via GPO Access [CITE: 23CFR657.21] [Page 254-256] TITLE 23--HIGHWAYS CHAPTER I--FEDERAL HIGHWAY ADMINISTRATION, DEPARTMENT OF TRANSPORTATION PART 657_CERTIFICATION OF SIZE AND WEIGHT ENFORCEMENT--Table of Contents Sec. 657.21 Procedure for reduction of funds. (a) If it appears to the Federal Highway Administrator that a State has not submitted a certification conforming to the requirements of this regulation, or that the State is not adequately enforcing State laws respecting maximum vehicle size and weight, including laws applicable to vehicles using the Interstate System with weights or widths in excess of those provided under 23 U.S.C. 127, the Federal Highway Administrator shall make in writing a proposed determination of nonconformity, and shall notify the Governor of the State of the proposed determination by certified mail. The notice shall state the reasons for the proposed determination and inform the State that it may, within 30 days from the date of the notice, request a hearing to show cause why it should not be found in nonconformity. If the State informs the Administrator before the end of this 30-day period that it wishes to attempt to resolve the matter informally, the Administrator may extend the time for requesting a hearing. In the event of a request for informal resolution, the State and the Administrator (or designee) shall promptly schedule a meeting to resolve the matter. (b) In all instances where the State proceeds on the basis of informal resolution, a transcript of the conference will be made and furnished to the State by the FHWA. (1) The State may offer any information which it considers helpful to a resolution of the matter, and the scope of review at the conference will include, but not be limited to, legislative actions, including those proposed to remedy deficiencies, budgetary considerations, judicial actions, and proposals for specific actions which will be implemented to bring the State into compliance. (2) The information produced at the conference may constitute an explanation and offer of settlement and the Administrator will make a determination on the basis of the certification, record of the conference, and other information submitted by the State. The Administrator's final decision together with a copy of the transcript of the conference will be furnished to the State. (3) If the Administrator does not accept an offer of settlement made pursuant to paragraph (b)(2) of this section, the State retains the right to request a hearing on the record pursuant to paragraph (d) of this section, except in the case of a violation of section 127. (c) If the State does not request a hearing in a timely fashion as provided in paragraph (a) of this section, the Federal Highway Administrator shall forward the proposed determination of nonconformity to the Secretary. Upon approval of the proposed determination by the Secretary, the fund reduction specified by Sec. 657.19 shall be effected. (d) If the State requests a hearing, the Secretary shall expeditiously convene a hearing on the record, which shall be conducted according to the provisions of the Administrative Procedure Act, 5 U.S.C. 555 et seq. Based on the record of the proceeding, the Secretary shall determine whether the State is in nonconformity with this regulation. If the Secretary determines that the State is in nonconformity, the [[Page 255]] fund reduction specified by section 567.19 shall be effected. (e) The Secretary may reserve 10 percent of a State's apportionment of funds under 23 U.S.C. 104 pending a final administrative determination under this regulation to prevent the apportionment to the State of funds which would be affected by a determination of nonconformity. (f) Funds withheld pursuant to a final administrative determination under this regulation shall be reapportioned to all other eligible States one year from the date of this determination, unless before this time the Secretary determines, on the basis of information submitted by the State and the FHWA, that the State has come into conformity with this regulation. If the Secretary determines that the State has come into conformity, the withheld funds shall be released to the State. (g) The reapportionment of funds under paragraph (e) of this section shall be stayed during the pendency of any judicial review of the Secretary's final administrative determination of nonconformity. Appendix to Part 657--Guidelines To Be Used in Developing Enforcement Plans and Certification Evaluation A. Facilities and Equipment 1. Permanent Scales a. Number b. Location (a map appropriately coded is suggested) c. Public-private (if any) 2. Weigh-in-motion (WIM) a. Number b. Location (notation on above map is suggested) 3. Semi-portable scales a. Type and number b. If used in sets, the number comprising a set 4. Portable Scales a. Type and number b. If used in sets, the number comprising a set B. Resources 1. Agencies involved (i.e., highway agency, State police, motor vehicle department, etc.) 2. Personnel--numbers from respective agencies assigned to weight enforcement 3. Funding a. Facilities b. Personnel C. Practices 1. Proposed schedule of operation of fixed scale locations in general terms 2. Proposed schedule of deployment of portable scale equipment in general terms 3. Proposed schedule of deployment of semi-portable equipment in general terms 4. Strategy for prevention of bypassing of fixed weighing facility location 5. Proposed action for implementation of off-loading, if applicable D. Goals 1. Short term--the year beginning October 1 following submission of a vehicle size and weight enforcement plan 2. Medium term--2-4 years after submission of the enforcement plan 3. Long term--5 years beyond the submission of the enforcement plan 4. Provision for annual review and update of vehicle size and weight enforcement plan E. Evaluation The evaluation of an existing plan, in comparison to goals for strengthening the enforcement program, is a difficult task, especially since there is very limited experience nationwide. The FHWA plans to approach this objective through a continued cooperative effort with State and other enforcement agencies by gathering useful information and experience on elements of enforcement practices that produce positive results. It is not considered practicable at this time to establish objective minimums, such as the number of vehicles to be weighed by each State, as a requirement for satisfactory compliance. However, the States will want to know as many specifics as possible about what measuring tools will be used to evaluate their annual certifications for adequacy. The above discussion goes to the heart of the question concerning numerical criteria. The assumption that a certain number of weighings will provide a maximum or even satisfactory deterrent is not supportable. The enforcement of vehicle size and weight laws requires that vehicles be weighed but it does not logically follow that the more vehicles weighed, the more effective the enforcement program, especially if the vehicles are weighed at a limited number of fixed locations. A ``numbers game'' does not necessarily provide a deterrent to deliberate overloading. Consistent, vigorous enforcement activities, the certainty of apprehension and of penalty, the adequacy of the penalty, even the publicity given these factors, may be greater deterrents than the number of weighings alone. In recognizing that all States are unique in character, there are some similarities between certain States and useful perspectives [[Page 256]] may be obtained by relating their program elements. Some comparative factors are: 1. Truck registration (excluding pickups and panels) 2. Population 3. Average Daily Traffic (ADT) for trucks on FA highways 4. To total mileage of Federal-aid highways 5. Geographic location of the State 6. Annual truck miles traveled in State 7. Number of truck terminals (over 6 doors) 8. Vehicle miles of intrastate truck traffic Quantities relating to the above items can become factors that in the aggregate are descriptive of a State's characteristics and can identify States that are similar from a trucking operation viewpoint. This is especially applicable for States within the same area. After States with similar truck traffic operations have been identified in a regional area, another important variable must be considered: the type of weighing equipment that has been or is proposed for predominant use in the States. When data become available on the number of trucks weighed by each type of scale (fixed, portable, semi- portable, etc.) some indicators will be developed to relate one State's effort to those of other States. The measures of activity that are a part of each certification submitted will provide a basis for the development of more precise numerical criteria by which an enforcement plan and its activities can be judged for adequacy. Previous certifications have provided information from which the following gross scale capabilities have been derived. Potential Weighing Capacities 1. Permanent scales 60 veh/hr. 2. Weigh-in-motion scales 100 veh/hr. 3. Semi-portable scales 25 veh/hr. 4. Portable scales 3 veh/hr. To meet the mandates of Federal and other laws regarding truck size and weight enforcement, the FHWA desires to become a resource for all States in achieving a successful exchange of useful information. Some States are more advanced in their enforcement activities. Some have special experience with portable, semi-portable, fixed, or weighing-in- motion devices. Others have operated permanent scales in combination with concentrated safety inspection programs. The FHWA is interested in information on individual State experiences in these specialized areas as part of initial plan submissions. If such information has recently been furnished to the Washington Headquarters, an appropriate cross reference should be included on the submission. It is the policy of the FHWA to avoid red tape, and information volunteered by the States will be of assistance in meeting many needs. The ultimate goal in developing information through the evaluation process is to assemble criteria for a model enforcement program.