Removal of Obsolete and Redundant Regulations and Appendices

Federal RegisterJan 10, 1994

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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 391, 392, and 396

[FHWA Docket No. MC-93-32]

RIN 2125-AD28

Removal of Obsolete and Redundant Regulations and Appendices

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM).

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SUMMARY: The FHWA is proposing to remove obsolete and redundant

regulations and appendices from the Federal Motor Carrier Safety

Regulations (FMCSRs). In addition, the FHWA is proposing minor

technical changes in an effort to keep the FMCSRs current. The removal

of obsolete and redundant regulations and appendices is one of the

first actions taken by the FHWA following the Agency's Zero Base

Regulatory Review public outreach sessions. The deletion of these

regulations should result in the reduction of the paperwork burden on

the industry without any reduction in safety benefits.

DATES: Comments must be received on or before March 11, 1994.

ADDRESSES: Submit written, signed comments to FHWA Docket No. MC-93-32,

room 4232, HCC-10, Office of the Chief Counsel, Federal Highway

Administration, 400 Seventh Street SW., Washington, DC 20590. All

comments received will be available for examination at the above

address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,

except legal Federal holidays. Those desiring notification of receipt

of comments must include a self-addressed, stamped postcard.

FOR FURTHER INFORMATION CONTACT:

Mr. William Blount, Office of Motor Carrier Standards, (202) 366-4009,

or Mr. Charles E. Medalen, Office of Chief Counsel, (202) 366-1354,

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 legal Federal

holidays.

SUPPLEMENTARY INFORMATION:

Background

The primary focus of the FHWA's Motor Carrier Safety Program is to

reduce commercial motor vehicle (CMV) accidents and the attendant

fatalities, injuries, and property losses. To remain effective,

regulations must reflect trends in State regulatory practices as well

as technical and operational changes in the motor carrier industry. The

motor carrier safety regulations were initially promulgated and

enforced by the Interstate Commerce Commission (ICC) in 1937. In 1967

the Department of Transportation (DOT) was created by the Department of

Transportation Act of 1966, (Pub. L. 89-670, 80 Stat. 931) and the

regulatory and enforcement authority for motor carrier safety was

transferred to the DOT. Today this authority is vested in the FHWA.

Over the years, the FMCSRs have been modified incrementally,

usually by addition of new provisions and often because of

congressional mandates. Some sections, however, no longer correspond to

current practices in the motor carrier industry, and others have been

superseded by State or local initiatives. In September 1992, the

Federal Highway Administration began a comprehensive multi-year effort

to re-create a body of safety rules and regulations that are (1)

understandable, (2) enforceable, (3) capable of being implemented by

industry, and above all, (4) consistent with highway safety. The effort

has been termed ``Zero Base Regulatory Review.'' The review will not

edit the current regulations, but will start with the basic questions

of who, what, and how do we regulate and what is essential to improve

motor carrier safety.

Concurrent with the Zero Base effort, the FHWA participated in a

governmentwide review of regulations designed to identify regulations

that were no longer required or unnecessarily hindered economic growth.

The FHWA's proposed deletions were incorporated into an NPRM published

by the Office of the Secretary of Transportation (OST) on May 20, 1992

(57 FR 21362). On December 22, 1992, the OST published a final rule but

declined to take final action on the FHWA proposals. 57 FR 60725.

Docket comments submitted in response to the May 20 NPRM, and other

comments received in conjunction with the FHWA's Zero Base review

effort, were evaluated by the FHWA in preparing the current NPRM. The

FHWA has identified several requirements that are obsolete or

redundant, i.e., which are repeated by State law or covered in another

part of the FMCSRs or which could be reissued as non-regulatory

guidance.

Discussion

Criteria Used for Regulation Review

The objectives of the FHWA's regulatory review were to (1)

eliminate requirements not needed to carry out the regulatory program;

(2) ensure that rules are clear and succinct; (3) reduce lengthy and

excessively detailed regulations whenever possible; (4) eliminate

redundancy; (5) eliminate excessive reporting requirements; and (6)

reduce or eliminate paperwork burdens wherever possible, without

compromising safety.

Section-by-Section Analysis

Part 391--Qualifications of Drivers

The primary function of part 391 is to ensure that operators of

CMVs meet minimum physical standards and possess the knowledge, skills,

and abilities to operate CMVs safely. The FHWA has reviewed the

regulations in part 391 and has determined that all requirements

pertaining to the written examination and record of violations are

unnecessary, for the reasons set forth below.

Written examination. The written examination tests prospective

drivers on the rules and requirements established by the FMCSRs.

However, the examination is an instructional tool only and a person's

qualification is not affected by his or her performance on the

examination. Carriers are not obligated to take applicants' scores into

consideration when making hiring decisions, so the Federal requirement

is of only marginal usefulness. Carriers may continue to give the test,

but the FHWA will no longer require them to do so. Moreover, drivers

who are subject to the Commercial Driver's License (CDL) requirements

must pass a knowledge test to obtain a CDL, so for CDL holders the

written exam is both redundant and ineffectual. Therefore, the written

examination (contained in appendix C) and all related qualification and

recordkeeping requirements would be removed. The sections to be removed

or amended by this proposal include Secs. 391.11(b)(11); 391.35;

391.37; 391.51(c)(5); 391.51(d)(3); 391.61; 391.67(a); 391.67(c);

391.69(b); 391.71(a) and appendix C to subchapter B.

List of violations. The objective of the record of violations is to

notify the employing motor carrier of all of a driver's moving

violations of motor vehicle traffic laws. This information is to be

used by the carrier to ensure that its drivers have not been

disqualified to drive a CMV.

The CDL regulations require CMV drivers to notify their current

employers within 30 days of any conviction for a non-parking violation

in any kind of vehicle (not only a CMV). If the conviction occurred in

a jurisdiction other than the one that issued the CDL, the driver must

also report it to the issuing jurisdiction within 30 days (49 CFR

383.31). Therefore, the provisions in Sec. 391.27 for motor carriers to

require their drivers to prepare and furnish a list of all traffic

violations during the preceding 12 months at least once every year, and

to maintain the record of violations in driver qualification files for

three years, are unnecessary and redundant. Furthermore, it is a common

practice for motor carriers or their insurance providers to obtain from

the State licensing agency the motor vehicle records on each of their

drivers once or more per year, although this is not required. The FHWA

is therefore proposing to delete Sec. 391.27 and all related

qualification and recordkeeping requirements. The sections to be

removed or amended by this proposal include Secs. 391.11(b)(8); 391.27;

391.51(b)(4); 391.51(h)(3); 391.63(a)(4); 391.67(a).

Miscellaneous. The FHWA is also proposing minor technical

corrections to Sec. 391.51(b)(2) and Sec. 391.51(g). These corrections

will bring the regulation into conformance with organizational changes

of the regional offices of the Federal Highway Administration, and will

correctly identify the new title of the Regional Director of Motor

Carriers.

Drivers operating in Hawaii. The limited exemption in

Sec. 391.69(a) for drivers operating in the State of Hawaii is

obsolete. Section 391.69(a) states that ``drivers who will reach the

age of 21 no later than April 1, 1976, may continue to drive within the

State of Hawaii.'' Since this date has passed, the provision should be

removed.

Part 392--Driving of Motor Vehicles

The FHWA has identified regulations within part 392, Driving of

Motor Vehicles, that are redundant of State and local laws. The

regulations in part 392 are designed to reduce Commercial Motor Vehicle

accidents by requiring that every motor vehicle be operated in

accordance with State and local laws and ordinances, or FHWA

regulations, whichever imposes the higher standard of care. The driving

regulations and rules of the road in part 392 resemble traffic laws and

ordinances. Basic rules of the road for trucks and buses are more

appropriately monitored and enforced by State and local authorities

under their own laws than by Federal regulators. In order to reduce

duplication of enforcement requirements, many of the rules contained in

part 392 should be removed. The FHWA is proposing to remove the

sections discussed below:

Section 392.9a Corrective lenses to be worn.

The FHWA is proposing to remove this section because it is

duplicated by State driver licensing laws. State laws routinely require

drivers who need glasses or contact lenses to wear them while driving.

In addition, the requirement that wearers of contact lenses carry an

extra set of them while driving does nothing to improve safety since a

spare lens could not be inserted before bringing the vehicle to a stop.

Section 392.12 Drawbridges; stopping of buses.

Section 392.18 slow moving vehicles; hazard warning signal flashers.

Section 392.21 Stopped vehicles not to interfere with other traffic.

The FHWA is proposing to remove these sections because they are

unenforceable by FHWA field staff and are more appropriately addressed

by State and local ordinances. In most, if not all, cases, State and

local laws provide that drivers are required to observe traffic signs.

State and local enforcement officers are responsible for maintaining

proper traffic flow and handling slow moving and stepped vehicles.

Section 392.30 Lighted lamps; moving vehicles.

Section 392.31 Lighted lamps; stopped or parked vehicles.

Section 392.32 Upper and lower head-lamp beams.

The FHWA is proposing to remove these sections because they are

duplicated by State laws and can only be enforced by State or local

agencies. In addition, the requirements for lighting devices are

addressed in part 393 of the FMCSRs.

Section 392.40 All accidents.

Section 392.41 Striking unattended vehicle.

The FHWA is proposing to remove these two sections because they

duplicate State ordinances.

Section 392.61 Driving by unauthorized person.

Section 392.62 Bus driver; distraction.

Section 392.65 Sleeper berth; transfer to or from.

Section 392.69 Sleeper berth, occupation.

The FHWA is proposing to remove Secs. 392.61 and 392.69 because the

FHWA believes that these situations should be governed by company

policy or a labor management agreement. Section 392.62 duplicates State

and local regulations and should be removed. Section 392.65 is proposed

to be removed because it is obsolete. There are very few truck tractors

still in use that require entry into the sleeper berth from outside the

vehicle.

Part 396--Inspection, Repair, and Maintenance

Part 396 places the responsibility upon the motor carrier to insure

that its vehicles are properly maintained. The FHWA is proposing to

remove Sec. 396.3(b)(4) because it is redundant. Section 396.3(b)(3)

already requires motor carriers to maintain for vehicles controlled for

30 consecutive days or more a record of inspection, repairs and

maintenance indicating their date and nature. Since the lubrication

record required by Sec. 396.3(b)(4) is a maintenance record, the

requirement is duplicative and should be removed.

Appendix A to Subchapter B

Appendix A to subchapter B includes all interpretations that were

issued by the FHWA up to the publication of a collection of

interpretations on November 23, 1977 (42 FR 60078). A new compilation

of interpretations was recently published in the Federal Register on

November 17, 1993 (58 FR 60734). Therefore, appendix A is redundant and

obsolete, and the FHWA is proposing it be removed.

Rulemaking Analyses and Notices

All comments received before the close of business on the comment

closing date indicated above will be considered and will be available

for examination in the docket at the above address. Comments received

after the comment closing date will be filed in the docket and will be

considered to the extent practicable, but the FHWA may issue a final

rule at any time after the close of the comment period. In addition to

late comments, the FHWA will also continue to file relevant information

in the docket as it becomes available after the comment closing date,

and interested persons should continue to examine the docket for new

material.

Executive Order 12866 (Regulatory Planning and Review) and DOT

Regulatory Policies and Procedures

This proposed rule would remove obsolete and redundant regulations

from the FMCSRs. The FHWA has determined that this document is not a

significant regulatory action under Executive Order 12866 or a

significant regulation under the regulatory policies and procedures of

the DOT. It is anticipated that the economic impact of this rulemaking

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 proposal on small

entities. This action would lessen the regulatory burden on small and

large entities subject to the FMCSRs by removing recordkeeping

requirements associated with the written examination and record of

violations. Based on the evaluation of this proposal, the FHWA

certifies that this action will not have a significant economic impact

on a substantial number of small entities.

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 proposed rule does not have sufficient federalism

implications to warrant the preparation of a full Federalism

Assessment.

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.

Paperwork Reduction Act

This rulemaking 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 the purpose of the National

Environmental Policy Act of 1969 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 Regulatory 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 391, 392, and 396

Highway safety, Highways and roads, Motor carriers, and Motor

vehicle safety.

Issued on: January 3, 1994.

Rodney E. Slater,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA proposes to amend title

49, Code of Federal Regulations, chapter III, subchapter B, parts 391,

392, 396, and appendices A and C to subchapter B as set forth below:

PART 391--QUALIFICATIONS OF DRIVERS [AMENDED]

1. The authority citation 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.

Sec. 391.11 [Amended]

2. Section 391.11 is amended by removing paragraphs (b)(8) and

(b)(11), and redesignating paragraphs (b)(9), (10) and (12) as

paragraphs (b)(8), (9) and (10).

Secs. 391.27, 391.35, and 391.37 [Removed and Reserved]

3. Sections 391.27, 391.35, and 391.37 are removed and reserved.

Sec. 391.51 [Amended]

4. Section 391.51 is amended as follows:

a. In paragraph (b)(2), by removing ``The Regional Federal Highway

Administrator's letter'' and inserting in lieu thereof the words ``The

letter from the Regional Director of Motor Carriers'';

b. By removing paragraph (b)(4) and redesignating paragraph (b)(5)

as paragraph (b)(4), and by adding the word ``and'' at the end of

paragraph (b)(3);

c. In paragraph (c)(4), by removing ``; and'' and inserting in lieu

thereof a period, and by removing paragraph (c)(5);

d. By removing paragraph (d)(3) and redesignating paragraph (d)(4)

as paragraph (d)(3), and by adding the word ``and'' at the end of

paragraph (d)(2);

e. In paragraph (g), by removing the words ``Director, Regional

Motor Carrier Safety Office'' and ``Directors of Regional Motor Carrier

Safety Offices'' and inserting in lieu thereof ``Regional Director of

Motor Carriers'' and ``Regional Directors of Motor Carriers'',

respectively; and

f. By removing paragraph (h)(3) and redesignating paragraph (h)(4)

as paragraph (h)(3).

5. Section 391.61 is revised to read as follows:

Sec. 391.61 Drivers who were regularly employed before January 1,

1971.

The provisions of Sec. 391.21 (relating to applications for

employment), Sec. 391.23 (relating to investigations and inquiries),

and Sec. 391.31 (relating to road tests) do not apply to a driver who

has been a regularly employed driver (as defined in Sec. 390.5 of this

subchapter) of a motor carrier for a continuous period which began

before January 1, 1971, as long as he/she continues to be a regularly

employed driver of that motor carrier. Such a driver is qualified to

drive a motor vehicle if he/she fulfills the requirements of paragraphs

(b)(1) through (b)(8) of Sec. 391.11 (relating to qualifications of

drivers).

Sec. 391.63 [Amended]

6. Section 391.63 is amended by removing paragraph (a)(4), and

paragraph (a)(3) is amended by removing ``; or'' and inserting in lieu

thereof a period.

7. Section 391.67 is revised to read as follows:

Sec. 391.67 Drivers of articulated (combination) farm vehicles.

The following rules in this part do not apply to a farm vehicle

driver (as defined in Sec. 390.5) who is 18 years of age or older and

who drives an articulated motor vehicle:

(a) Paragraphs (b)(1), (b)(9), and (b)(10) of Sec. 391.11 (relating

to driver qualifications in general).

(b) Subpart C (relating to disclosure of, investigation into, and

inquiries about the background, character, and driving record of,

drivers).

(d) So much of Secs. 391.41 and 391.45 as require a driver to be

medically examined and to have a medical examiner's certificate on his

person before January 1, 1973.

(e) Subpart F (relating to maintenance of files and records).

8. Section 391.69 is revised to read as follows:

Sec. 391.69 Drivers operating in Hawaii.