Federal Motor Carrier Safety Regulations; Technical Amendments

Federal RegisterDec 12, 1994

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 387, 391, 392, and 397

RIN 2125-AD39

Federal Motor Carrier Safety Regulations; Technical Amendments

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Final rule; technical amendments.

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SUMMARY: This document amends the Federal Motor Carrier Safety

Regulations (FMCSR) to provide nomenclature changes that will revise

and update certain regulatory references and terms. Additionally,

amendments are being made to revise existing hazardous materials

classifications and descriptions to conform with the United Nations'

Recommendations on the Transportation of Dangerous Goods. Finally, a

Schedule of Limits chart pertaining to motor carriers' financial

responsibility has been removed because the information it contained

was duplicative of that in another chart elsewhere in the regulations.

EFFECTIVE DATE: This rule is effective January 11, 1995.

FOR FURTHER INFORMATION CONTACT: Mr. Brad A. Trullinger, Office of

Motor Carrier Standards, (202) 366-5764, or Mr. Raymond Cuprill, Office

of the Chief Counsel, (202) 366-0834, Federal Highway Administration,

Department of Transportation, 400 Seventh Street, SW., Washington, DC

20590. Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday

through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION: The Research and Special Programs

Administration (RSPA), is the agency within the DOT that has been

delegated with the responsibility of developing and promulgating

regulatory requirements for the transportation of hazardous materials.

The RSPA has issued regulations which identify, define, describe and

classify hazardous materials. These requirements are codified,

generally, in the Hazardous Materials Regulations (HMR) at 49 CFR Parts

171 through 180. The responsibility for enforcement of certain aspects

of the HMR is delegated to the appropriate modal Administration, and

for highways, this responsibility rests with the FHWA. The FHWA

consistently incorporates hazardous materials terminology,

descriptions, and classifications that are promulgated by the RSPA into

the FMCSR, as appropriate, in order to maintain uniformity between the

requirements of the HMR and the requirements of the FMCSR.

The RSPA published a final rule on December 21, 1990 (55 FR 52402),

entitled Performance-Oriented Packaging Standards; Changes to

Classification, Hazard Communication, Packaging and Handling

Requirements, Based on United Nations' Standards and Agency Initiative.

This rule comprehensively amended the hazardous materials communication

requirements in the HMR, based upon the United Nations' Recommendations

on the Transportation of Dangerous Goods, which are codified at 49 CFR

Part 107 through 180. Descriptions of certain hazardous materials

currently found in Parts 387, 391, 392, and 397 are incompatible with

the RSPA's final rule which incorporated certain aspects of the United

Nations' Recommendations on the Transportation of Dangerous Goods, into

the HMR, now codified at 49 CFR Parts 171-180. Hazardous materials such

as explosives, poison gases, and radioactive materials heretofore have

been classified in the FMCSR using the descriptive language and

regulatory requirements of Parts 171 through 177 of the HMR, that were

in effect prior to the implementation of the United Nations'

Recommendations. Therefore, in order to effectively carry out its

responsibility for enforcement of certain parts of the HMR, the FHWA

has initiated these technical amendments to the FMCSR to provide for

regulatory consistency and uniformity.

Minimum Levels of Financial Responsibility for Motor Carriers, 49

CFR Part 387, was published in the Federal Register on June 11, 1981

(46 FR 30974-30987). This part set forth requirements for motor

carriers transporting non-hazardous property, and/or hazardous

materials or substances, to maintain minimum levels of financial

responsibility. The levels of financial responsibility vary, depending

upon whether the cargo being transported is a non-hazardous material,

or a hazardous material.

Qualifications of drivers, 49 CFR Part 391, was published in the

Federal Register on April 22, 1970 (35 FR 6460). The requirements in

this part establish minimum qualification standards for drivers who

drive motor vehicles as, or for a motor carrier engaged in interstate

commerce. This part includes limited exceptions for drivers who are

otherwise qualified and regularly employed, and were hired before July

1, 1975. A driver is not subject to the requirements of this part if

the driver continues regular employment, is transporting certain

material considered to be hazardous, and transports that hazardous

material in Intra-state commerce.

Driving of Motor Vehicles, 49 CFR Part 392, was published in the

Federal Register on December 25, 1968 (33 FR 19732). Among other

things, this part requires drivers who drive a motor vehicle to stop at

all railroad grade crossings, and to utilize, in lieu of flame

producing devices, emergency reflective triangles or other such

devices, when transporting certain types of hazardous materials.

Transportation of Hazardous Materials; Driving and Parking Rules,

49 CFR Part 397, was published in the Federal Register on March 13,

1971 (36 FR 4876). This part requires motor carriers to have in place

various procedures, policies, and documents during the transportation

of hazardous materials by motor vehicle. Part 397 classified hazardous

materials using the descriptive language and regulatory requirements of

the HMR. These classifications, in place since 1971, included

explosives, flammable liquids, oxidizing materials, and gases.

The FHWA is making appropriate conforming changes to 49 CFR Parts

387, 391, 392, and 397 of the FMCSR, that reference any hazardous

material classification or description, based upon the United Nations'

Recommendations, the RSPA's adoption of changes to the HMR reflective

of these recommendations, and the need for international uniformity of

these regulations. In addition, the FHWA is appropriately making

nomenclature changes in 49 CFR Part 387 of the FMCSR, to indicate that

all references made to the ``Bureau of Motor Carrier Safety'', will now

read, the ``Federal Highway Administration.'' All text references in

Part 387 referencing the ``Bureau'' will read the ``FHWA.''

The Schedule of Limits chart as it appears in section 387.9 is

being amended by removing the ``Note'' directly beneath the chart, and

replacing it with specific gross vehicle weight rating (GVWR)

references within the content of the chart itself. Since first

promulgated, the ``Note'' reference has been confusing. By inserting

specific weight limits into the text of the ``Type of Carriage''

column, the applicability of the financial responsibility requirements

is more understandable. This final rule also removes a second Schedule

of Limits chart, currently in section 387.15, because the information

it contains is duplicative of that in the chart found in Sec. 387.9.

Rulemaking Analyses and Notices

The Administrative Procedure Act (APA), 5 U.S.C. 551 et seq.,

allows agencies engaged in rulemaking to dispense with prior notice and

opportunity for comment when the agency for good cause finds that such

procedures are impracticable, unnecessary, or are contrary to the

public interest. 5 U.S.C. 553(b)(3)(B). As previously discussed, on

December 21, 1990 (55 FR 52402), the RSPA comprehensively revised the

regulatory requirements of the HMR with respect to hazard

communication, classification, and packaging requirements. The

revisions adopted the United Nations' Recommendations on the

Transportation of Dangerous Goods, and were intended to further

international regulatory uniformity. This FHWA final rule changes

terminology and descriptions used in the FMCSR to reflect the changes

made by the RSPA to the HMR. These amendments are technical in nature,

and do not alter any current requirements regarding hazardous

materials. Accordingly, the FHWA has determined that prior notice to

the public on this action is unnecessary.

Moreover, prior notice and opportunity for public comment on this

document are not required under the Department of Transportation's

Regulatory Policies and Procedures because it is not anticipated that

such action will result in the receipt of useful information. This

action promotes uniformity in the regulatory terminology and

descriptions contained in the HMR and the FMCSR.

Executive Order 12866 (Regulatory, Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this document does not contain a

significant regulatory action under Executive Order 12866, or a

significant regulation as defined under DOT regulatory policies and

procedures. These amendments are being made without substantive change

to the existing regulatory language of these parts, and are strictly

technical in nature. Provided in the amendments is a listing of the new

hazardous materials classifications and descriptions by their

respective classes and divisions as they pertain to minimum levels of

financial responsibility, qualifications of drivers, driving of motor

vehicles, and driving and parking requirements. It is anticipated that

the economic impact of this regulatory action will be minimal.

Therefore, a full regulatory evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory Flexibility Act, 5 U.S.C. 601-

612, the FHWA has evaluated the effects of this rule on small entities.

Based upon the evaluation, and the fact that the changes being made to

current regulatory requirements are merely technical in nature, the

FHWA hereby certifies that this action will not have a significant

economic impact on a substantial number of small entities.

Executive Order 12372 (Intergovernmental Review)

Catalog of Federal Domestic Assistance Program Number 20.217, Motor

Carrier Safety. The regulations implementing Executive Order 12372

regarding intergovernmental consultation on Federal programs and

activities apply to this program.

Executive Order 12612 (Federalism Assessment)

This action has been analyzed in accordance with the principles and

criteria contained in Executive Order 12612, and it has been determined

that this action does not have sufficient federalism implications to

warrant the preparation of a federalism assessment.

Paperwork Reduction Act

This action does not contain a collection of information

requirement for purposes of the Paperwork Reduction Act of 1980, 44

U.S.C. 3501 et seq.

National Environmental Policy Act

The agency has analyzed this action for purposes of the National

Environmental Policy Act of 1969, 42 U.S.C. 4321 et seq., and has

determined that this action would not have any effect on the quality of

the environment.

Regulation Identification Number

A regulation identification number (RIN) is assigned to each

regulatory action listed in the Unified Agenda of Federal Regulations.

The Regulation Information Service Center publishes the Unified Agenda

in April and October of each year. The RIN 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 Parts 387, 391, 392, and 397

Hazardous materials transportation, Highways and roads, Financial

responsibility, Insurance, Motor carriers.

Issued on: November 30, 1994.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA is amending title 49,

Code of Federal Regulations, Chapter III, Subchapter B, parts 387, 391,

392, and 397 as follows:

PART 387--[AMENDED]

1. The authority citation for part 387 continues to read as

follows:

Authority: 49 U.S.C. 10927 note; 49 CFR 1.48.

2. Section 387.3 is amended by revising paragraph (c) to read as

follows:

Sec. 387.3 Applicability.

* * * * *

(c) Exception. (1) The rules in this part do not apply to a motor

vehicle that has a gross vehicle weight rating (GVWR) of less than

10,000 pounds. This exception does not apply if the vehicle is used to

transport any quantity of a Division 1.1, 1.2, or 1.3 material, any

quantity of a Division 2.3, Hazard Zone A, or Division 6.1, Packing

Group I, Hazard Zone A, or to a highway route controlled quantity of a

Class 7 material as it is defined in 49 CFR 173.403, in interstate or

foreign commerce.

(2) The rules in this part do not apply to the transportation of

non-bulk oil, non-bulk hazardous materials, substances, or wastes in

intrastate commerce, except that the rules in this part do apply to the

transportation of a highway route controlled quantity of a Class 7

material as defined in 49 CFR 173.403, in intrastate commerce.

3. In Sec. 387.5, the definition of In bulk is revised, the

definitions of In bulk (Class A and B explosives) and In bulk (poison

gas) are removed, and the definitions of In bulk (Division 1.1, 1.2,

and 1.3 explosives) and In bulk (Division 2.3, Hazard Zone A or

Division 6.1, Packing Group I, Hazard Zone A materials) are added in

alphabetical order to read as follows:

Sec. 387.5 Definitions.

* * * * *

In bulk--the transportation, as cargo, of property, except Division

1.1, 1.2, or 1.3 materials, and Division 2.3, Hazard Zone A gases, in

containment systems with capacities in excess of 3500 water gallons.

In bulk (Division 1.1, 1.2, and 1.3 explosives)--the

transportation, as cargo, of any Division 1.1, 1.2, or 1.3 materials in

any quantity.

In bulk (Division 2.3, Hazard Zone A or Division 6.1, Packing Group

I, Hazard Zone A materials)--the transportation, as cargo, of any

Division 2.3, Hazard Zone A, or Division 6.1, packing Group I, Hazard

Zone A material, in any quantity.

* * * * *

4. Paragraph (d)(3) of Sec. 387.7 is revised to read as follows:

Sec. 387.7 Financial responsibility required.

* * * * *

(d) * * *

(3) A written decision, order, or authorization of the Interstate

Commerce Commission authorizing a motor carrier to self-insure under

Sec. 1043.5 of this title, provided the motor carrier maintains a

satisfactory safety rating as determined by the Federal Highway

Administration under part 385 of this title.

* * * * *

5. Section 387.9 is revised to read as follows:

Sec. 387.9 Financial responsibility, minimum levels.

The minimum levels of financial responsibility referred to in

Sec. 387.7 of this subpart are hereby prescribed as follows:

Schedule of Limits--Public Liability

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Type of carriage Commodity transported Jan. 1, 1985

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(1) For-hire (In interstate or Property (nonhazardous).................................. $750,000

foreign commerce, with a gross

vehicle weight rating of 10,000 or

more pounds).

(2) For-hire and Private (In Hazardous substances, as defined in 49 CFR 171.8, 5,000,000

interstate, foreign, or intrastate transported in cargo tanks, portable tanks, or hopper-

commerce, with a gross vehicle type vehicles with capacities in excess of 3,500 water

weight rating of 10,000 or more gallons; or in bulk Division 1.1, 1.2, and 1.3

pounds). materials, Division 2.3, Hazard Zone A, or Division 6.1,

Packing Group I, Hazard Zone A material; in bulk

Division 2.1 or 2.2; or highway route controlled

quantities of a Class 7 material, as defined in 49 CFR

173.403.

(3) For-hire and Private (In Oil listed in 49 CFR 172.101; hazardous waste, hazardous 1,000,000

interstate or foreign commerce, in materials, and hazardous substances defined in 49 CFR

any quantity; or in intrastate 171.8 and listed in 49 CFR 172.101, but not mentioned in

commerce, in bulk only; with a gross (2) above or (4) below.

vehicle weight rating of 10,000 or

more pounds).

(4) For-hire and Private (In Any quantity of Division 1.1, 1.2, or 1.3 material; any 5,000,000

interstate or foreign commerce, with quantity of a Division 2.3, Hazard Zone A, or Division

a gross vehicle weight rating of 6.1, Packing Group I, Hazard Zone A material; or highway

less than 10,000 pounds). route controlled quantities of a Class 7 material as

defined in 49 CFR 173.403.

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6. In Sec. 387.15, Illustration I, the second full paragraph under

the heading ``Authorized Company Representative'' and the first

paragraph following the definition of ``Public Liability'' are revised.

The paragraph beginning ``The Motor Carrier Act of 1980 * * *'', and

the paragraph beginning ``THE SCHEDULE OF LIMITS SHOWN * * *'', as well

as the Schedule chart itself are removed. In Illustration II, paragraph

(2) under the heading ``Governing Provisions'' and the fifth paragraph

under the heading ``Conditions'' are revised to read as follows:

Sec. 387.15 Forms.

* * * * *

Illustration I

* * * * *

Authorized Company Representative

* * * * *

Whenever required by the FHWA or the ICC the company agrees to

furnish the FHWA or the ICC a duplicate of said policy and all its

endorsements. The company also agrees, upon telephone request by an

authorized representative of the FHWA or the ICC, to verify that the

policy is in force as of a particular date. The telephone number to

call is: ____________

* * * * *

Definitions as Used in This Endorsement

* * * * *

The insurance policy to which this endorsement is attached

provides automobile liability insurance and is amended to assure

compliance by the insured, within the limits stated herein, as a

motor carrier of property, with sections 29 and 30 of the Motor

Carrier Act of 1980 and the rules and regulations of the Federal

Highway Administration and the Interstate Commerce Commission (ICC).

* * * * *

Illustration II

* * * * *

Governing Provisions

* * * * *

(2) Rules and regulations of the Federal Highway Administration.

* * * * *

Conditions

* * * * *

The surety agrees, upon telephone request by an authorized

representative of the FHWA or the ICC, to verify that the surety

bond is in force as of a particular date. The telephone number is:

____________

* * * * *

7. Section 387.17 is revised to read as follows:

Sec. 387.17 Violation and penalty.

Any person (except an employee who acts without knowledge) who

knowingly violates the rules of this subpart shall be liable to the

United States for civil penalty of no more than $10,000 for each

violation, and if any such violation is a continuing one, each day of

violation will constitute a separate offense. The amount of any such

penalty shall be assessed by the FHWA's Associate Administrator for the

Office of Motor Carriers, by written notice. In determining the amount

of such penalty, the Associate Administrator, or his/her authorized

delegate shall take into account the nature, circumstances, extent, the

gravity of the violation committed and, with respect to the person

found to have committed such violation, the degree of culpability, any

history of prior offenses, ability to pay, effect on ability to

continue to do business, and such other matters as justice may require.

PART 391--[AMENDED]

8. The authority for Part 391 continues to read as follows:

Authority: 49 U.S.C. App. 2505; 49 U.S.C. 504 and 3102; 49 CFR

1.48.

9. The section heading and paragraphs (a)(1) and (b)(3) of

Sec. 391.71 are revised to read as follows:

Sec. 391.71 Intrastate drivers of vehicles transporting Class 3

combustible liquids.

(a) * * *

(1) Is transporting Class 3 combustible liquids (as defined in

Sec. 173.120 of this title), and

* * * * *

(b) * * *

(3) Is transporting a Class 3 combustible liquid (as defined in

Sec. 173.120 of this title), and

* * * * *

PART 392--[AMENDED]

10. The authority for Part 392 is revised to read as follows:

Authority: 49 U.S.C. 31136, 31502; 49 U.S.C. 1.48.

10a. In Sec. 392.10, paragraphs (a)(2) through (a)(5), and

paragraph (b)(1) are revised to read as follows:

Sec. 392.10 Railroad grade crossings; stopping required.

(a) * * *

(2) Every motor vehicle transporting any quantity of a Division 2.3

chlorine.

(3) Every motor vehicle which, in accordance with the regulations

of the Department of Transportation, is required to be marked or

placarded with one of the following classifications:

(i) Division 1.1

(ii) Division 1.2, or Division 1.3

(iii) Division 2.3 Poison gas

(iv) Division 4.3

(v) Class 7

(vi) Class 3 Flammable

(vii) Division 5.1

(viii) Division 2.2

(ix) Division 2.3 Chlorine

(x) Division 6.1 Poison

(xi) Division 2.2 Oxygen

(xii) Division 2.1

(xiii) Class 3 Combustible liquid

(xiv) Division 4.1

(xv) Division 5.1

(xvi) Division 5.2

(xvii) Class 8

(xviii) Division 1.4

(4) Every cargo tank motor vehicle, whether loaded or empty, used

for the transportation of any hazardous material as defined in the

Hazardous Materials Regulations of the Department of Transportation,

Parts 107 through 180 of this title.

(5) Every cargo tank motor vehicle transporting a commodity which

at the time of loading has a temperature above its flashpoint as

determined by Sec. 173.120 of this title.

* * * * *

(b) * * *

(1) A streetcar crossing, or railroad tracks used exclusively for

industrial switching purposes, within a business district, as defined

in Sec. 390.5 of this chapter.

* * * * *

11. Section 392.25 is revised to read as follows:

Sec. 392.25 Emergency signals; dangerous cargoes.

No driver shall use or permit the use of any flame-producing

emergency signal for protecting any motor vehicle transporting Division

1.1, Division 1.2, or Division 1.3 explosives; any cargo tank motor

vehicle used for the transportation of any Class 3 or Division 2.1,

whether loaded or empty; or any motor vehicle using compressed gas as a

motor fuel. In lieu thereof, emergency reflective triangles, red

electric lanterns, or red emergency reflectors shall be used, the

placement of which shall be in the same manner as prescribed in

Sec. 392.22(b).

PART 397--[AMENDED]

12. The authority citation for part 397 is revised to read as

follows:

Authority: 49 U.S.C. 5101 et seq.; 49 CFR 1.48.

13. Section 397.5 is revised to read as follows:

Sec. 397.5 Attendance and surveillance of motor vehicles.

(a) Except as provided in paragraph (b) of this section, a motor

vehicle which contains a Division 1.1, 1.2, or 1.3 (explosive) material

must be attended at all times by its driver or a qualified

representative of the motor carrier that operates it.

(b) The rules in paragraph (a) of this section do not apply to a

motor vehicle which contains Division 1.1, 1.2, or 1.3 material if all

the following conditions exist--

(1) The vehicle is located on the property of a motor carrier, on

the property of a shipper or consignee of the explosives, in a safe

haven, or, in the case of a vehicle containing 50 pounds or less of a

Division 1.1, 1.2, or 1.3 material, on a construction or survey site;

and

(2) The lawful bailee of the explosives is aware of the nature of

the explosives the vehicle contains and has been instructed in the

procedures which must be followed in emergencies; and

(3) The vehicle is within the bailee's unobstructed field of view

or is located in a safe haven.

(c) A motor vehicle which contains hazardous materials other than

Division 1.1, 1.2, or 1.3, materials, and which is located on a public

street or highway, or the shoulder of a public highway, must be

attended by its driver. However, the vehicle need not be attended while

its driver is performing duties which are incident and necessary to the

driver's duties as the operator of the vehicle.

(d) For purposes of this section--

(1) A motor vehicle is attended when the person in charge of the

vehicle is on the vehicle, awake, and not in a sleeper berth, or is

within 100 feet of the vehicle and has it within his/her unobstructed

field of view.

(2) A qualified representative of a motor carrier is a person who--

(i) Has been designated by the carrier to attend the vehicle;

(ii) Is aware of the nature of the hazardous materials contained in

the vehicle he/she attends;

(iii) Has been instructed in the procedures he/she must follow in

emergencies; and

(iv) Is authorized to move the vehicle and has the means and

ability to do so.

(3) A safe haven in an area specifically approved in writing by

local, State, or Federal governmental authorities for the parking of

unattended vehicles containing Division 1.1, 1.2, or 1.3 materials.

(e) The rules in this section do not relieve the driver from any

obligation imposed by law relating to the placing of warning devices

when a motor vehicle is stopped on a public street or highway.

14. Section 397.7 is revised to read as follows:

Sec. 397.7 Parking.

(a) A motor vehicle which contains Division 1.1, 1.2, or 1.3

materials must not be parked under any of the following circumstances--

(1) On or within 5 feet of the traveled portion of a public street

or highway;

(2) On private property (including premises of fueling or eating

facility) without the knowledge and consent of the person who is in

charge of the property and who is aware of the nature of the hazardous

materials the vehicle contains; or

(3) Within 300 feet of a bridge, tunnel, dwelling, or place where

people work, congregate, or assemble, except for brief periods when the

necessities of operation require the vehicle to be parked and make it

impracticable to park the vehicle in any other place.

(b) A motor vehicle which contains hazardous materials other than

Division 1.1, 1.2, or 1.3 materials must not be parked on or within

five feet of the traveled portion of public street or highway except

for brief periods when the necessities of operation require the vehicle

to be parked and make it impracticable to park the vehicle in any other

place.

15. Section 397.13 is revised to read as follows:

Sec. 397.13 Smoking.

No person may smoke or carry a lighted cigarette, cigar, or pipe on

or within 25 feet of--

(a) A motor vehicle which contains Class 1 materials, Class 5

materials, or flammable materials classified as Division 2.1, Class 3,

Divisions 4.1 and 4.2; or

(b) An empty tank motor vehicle which has been used to transport

Class 3, flammable materials, or Division 2.1 flammable gases, which

when so used, was required to be marked or placarded in accordance with

the rules in Sec. 177.823 of this title.

16. Section 397.19 is revised to read as follows:

Sec. 397.19 Instructions and documents.

(a) A motor carrier that transports Division 1.1, 1.2, or 1.3

(explosive) materials must furnish the driver of each motor vehicle in

which the explosives are transported with the following documents:

(1) A copy of the rules in this part;

(2) [Reserved]

(3) A document containing instructions on procedures to be followed

in the event of accident or delay. The documents must include the names

and telephone numbers of persons (including representatives of carriers

or shippers) to be contracted, the nature of the explosives being

transported, and the precautions to be taken in emergencies such as

fires, accidents, or leakages.

(b) A driver who receives documents in accordance with paragraph

(a) of this section must sign a receipt for them. The carrier shall

retain the receipt in its files for 1 year at its principal place of

business.

(c) A driver of a motor vehicle which contains Division 1.1, 1.2,

or 1.3 materials must be in possession of, be familiar with, and be in

compliance with

(1) The documents specified in paragraph (a) of this section;

(2) The documents specified in Sec. 177.817 of this title; and

(3) The written route plan specified in Sec. 397.67.

[FR Doc. 94-30111 Filed 12-9-94; 8:45 am]

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