Review of the Federal Motor Carrier Safety Regulations; Regulatory Removals and Substantive Amendments

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 387, 390, 391, 392, 395, 396, and 397

[FHWA Docket No. MC-97-3]

RIN 2125-AD72

Review of the Federal Motor Carrier Safety Regulations;

Regulatory Removals and Substantive Amendments

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice of proposed rulemaking (NPRM); request for comments.

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SUMMARY: This document requests comments on the intent of the FHWA to

remove, amend, and redesignate certain regulations concerning financial

responsibility; general applicability and definitions; accident

recordkeeping requirements; qualifications of drivers; driving of

commercial motor vehicles; hours of service of drivers; inspection,

repair, and maintenance; and the transportation of hazardous materials.

These regulations are obsolete, redundant, unnecessary, ineffective,

burdensome, more appropriately regulated by State and local

authorities, better addressed by company policy, in need of

clarification, or more appropriately contained in another section. This

action is consistent with the FHWA's Zero Base Regulatory Review and

the President's Regulatory Reinvention Initiative.

DATES: Comments must be received no later than March 28, 1997.

ADDRESSES: All signed, written comments should refer to the docket

number that appears at the top of this document and must be submitted

to HCC-10, room 4232, 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 Federal holidays. Those desiring notification of receipt of

comments must include a self-addressed, stamped postcard/envelope.

FOR FURTHER INFORMATION CONTACT: Mr. Peter C. Chandler, Office of Motor

Carrier Research and Standards, (202) 366-5763, or Mr. Charles E.

Medalen, Office of the 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 Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

The first Federal Motor Carrier Safety Regulations (FMCSRs) were

promulgated in 1937. The FMCSRs have been amended many times during the

past 59 years. In September 1992, the FHWA began a comprehensive multi-

year project to develop modern, uniform safety regulations that are up

to date, clear, concise, easier to understand, and more performance

oriented. This project has been named the Zero Base Regulatory Review.

Upon the announcement of the first four public outreach sessions in

the Federal Register on August 18, 1992 [57 FR 37392], the FHWA opened

a public docket, MC-92-33, to allow interested parties who were unable

to attend an outreach session the opportunity to submit comments and

recommendations for improvement of the FMCSRs. After the comment period

closed on April 1, 1993, and the comments were analyzed, the FHWA

published a notice of proposed rulemaking (NPRM) in the Federal

Register on January 10, 1994 [59 FR 1366], and a final rule on November

23, 1994 [59 FR 60319], to remove obsolete or redundant regulations and

appendices from the FMCSRs. On July 28, 1995 [60 FR 38739], the FHWA

published a final rule which made technical corrections to keep the

FMCSRs accurate and up to date. These actions were in response to the

Zero Base Regulatory Review.

This rulemaking would remove, amend, and redesignate other

regulations and would amend the single regulation which was proposed to

be removed in the January 10, 1994, NPRM and was not removed in the

November 23, 1994, final rule. The FHWA requests comments on these

proposed regulatory changes and recommendations from all interested

persons on additional regulatory changes to improve the FMCSRs. The

following is a discussion of the proposed amendments to and deletions

from the FMCSRs arranged by part and section of the FMCSRs except for

divided record authority which is discussed first because the provision

is mentioned in two parts of the FMCSRs.

Divided Record Authority

A motor carrier may maintain driver qualification files, records of

duty status, and receipts for instructions and documents for drivers of

motor vehicles transporting Division 1.1, 1.2, or 1.3 (explosive)

materials at a regional or terminal office if the motor carrier has

requested and been approved by the Regional Director of Motor Carriers

to do so in accordance with Secs. 391.51(g) and 395.1(g). Upon approval

by the Regional Director of Motor Carriers, the current policy of the

FHWA is, generally, to allow a motor carrier to maintain records and

documents at only one location per State. Otherwise, records required

by subchapter B of title 49, Code of Federal Regulations, must be

maintained at a motor carrier's principal place of business except for

inspection, repair, and maintenance records which must be maintained

where the motor vehicle is either housed or maintained, and the records

of a motor carrier's alcohol and controlled substances use and testing

program which must be made available for inspection at the principal

place of business within two business days after a request has been

made by an authorized representative of the FHWA. On November 17, 1993

[58 FR 60734], the FHWA issued regulatory guidance that allows

inspection, repair, and maintenance records to be maintained at a

location of the motor carrier's choice if a motor vehicle is not housed

or maintained at a single location, but these records must be made

available within two business days upon request of the FHWA in all

cases (Sec. 396.3, question 5). At the same time, the

[[Page 3856]]

FHWA issued regulatory guidance that allows supporting documents for

records of duty status and time records for 100 air-mile radius drivers

to be maintained at locations other than the principal place of

business provided these documents and records can be forwarded to the

principal place of business within two business days upon request by a

special agent or authorized representative of the FHWA (Sec. 395.8,

question 10 and Sec. 395.1, question 8, respectively). Thus, the FMCSRs

and the regulatory guidance establish dissimilar recordkeeping

requirements related to the location of required records. The FHWA

proposes to establish uniform recordkeeping requirements related to the

location of required records.

Specifically, the FHWA proposes to allow motor carriers with

multiple terminals or offices to maintain all records required by

subchapter B at regional offices or driver work-reporting locations

provided records can be produced at the principal place of business or

other specified locations within 48 hours upon request by a special

agent or authorized representative of the FHWA. Saturdays, Sundays, and

Federal holidays would be excluded from the computation of the 48-hour

period of time. The FHWA believes that 48 hours is a reasonable period

of time to produce records at the principal place of business in

consideration of the availability of overnight mail service and

facsimile and other electronic transmission equipment. Motor carriers

with a single place of business would not be allowed 48 hours to

produce records when requested. A motor carrier with multiple terminals

or offices would be required to make its records maintained at a given

location available for inspection immediately upon request by an FHWA

representative who is present at that location. For motor carriers with

multiple terminals or offices, a request to forward files, documents,

and records maintained at driver work-reporting locations to the

principal place of business or other specified location would generally

be limited to a specific sample or selection chosen by the FHWA

representative. However, all files, documents, and records maintained

at regional or terminal offices or driver work-reporting locations may

be requested to be forwarded to the principal place of business or

other specified location in some cases.

In an effort towards uniformity, the FHWA proposes to make the

allowances and limitations for all recordkeeping requirements in

subchapter B similar. The FHWA believes there is no sound reason to

allow some, but not all, required records to be maintained at locations

other than the principal place of business. One thrust of the Zero Base

Regulatory Review is to make the FMCSRs more performance oriented to

provide motor carriers with increased flexibility in achieving

compliance. The proposed removal of divided record authority is a good

example of this goal. The FHWA proposes to eliminate divided record

authority by removing Secs. 391.51(g) and 395.1(g), amending

Secs. 391.51(f), 395.8(k)(1), and 397.19(b), and by codifying a

flexible rule on record retention for motor carriers with multiple

terminals or offices in Sec. 390.29. The FHWA also proposes to amend

the definition of principal place of business in Sec. 390.5 to mean a

single location where records required by parts 382, 387, 390, 391,

395, 396, and 397 of this subchapter will be made available for

inspection within 48 hours after a request has been made by a special

agent or authorized representative of the FHWA.

Part 387--Minimum Levels of Financial Responsibility for Motor Carriers

Part 387 prescribes the minimum levels of financial responsibility

required to be maintained by motor carriers of property and passengers.

The purpose of these regulations is to ensure that motor carriers

maintain an appropriate level of financial responsibility for motor

vehicles operated on public highways.

Subpart A--Motor Carriers of Property

Definitions

For-Hire Carriage

There has been confusion within the motor carrier and insurance

industries about whether a for-hire motor carrier of a commodity which

is exempt from the economic regulations of the Interstate Commerce

Commission (ICC), whose remaining functions have now been divided

between the Surface Transportation Board of the Department of

Transportation and the FHWA, is subject to the requirements in part

387. Under the statutory authority provided by 49 U.S.C. 31139, the

Secretary of Transportation is required to prescribe regulations to

require minimum levels of financial responsibility for the

transportation of property for compensation by motor vehicles in

interstate commerce. An exempt commodity motor carrier of property is

subject to part 387 when operating a motor vehicle with a gross vehicle

weight rating of 10,000 pounds or more in interstate or foreign

commerce. The FHWA, therefore, proposes to amend the definitions in

Sec. 387.5 to specify that For-hire carriage means transportation of

property by a common, contract, or exempt commodity motor carrier of

property.

Motor Carrier

The FHWA proposes to amend the definition of motor carrier to a

for-hire or private motor carrier of property in order to make it clear

that the term includes an exempt commodity motor carrier of property.

Subpart B--Motor Carriers of Passengers

Applicability

On November 17, 1993 [58 FR 60734], the FHWA issued regulatory

guidance that addressed the applicability of the financial

responsibility requirements to school bus transportation (Sec. 387.27,

question 4). Specifically, for-hire contractors providing

transportation of preprimary, primary, and secondary students for

extracurricular trips organized, sponsored, and paid for by the school

district are not subject to the financial responsibility requirements.

The FHWA proposes to codify this regulatory guidance in

Sec. 387.27(b)(4).

Definitions

For-Hire Carriage

On November 17, 1993 [58 FR 60734], the FHWA issued regulatory

guidance which clarified the meaning of for-hire passenger

transportation (Sec. 390.5, question 8). To codify this interpretative

guidance, the FHWA proposes to amend the definition of For-hire

carriage in Sec. 387.29. The definition will make it clear that the

term means passenger transportation which is generally available to the

public at large and is performed for a commercial purpose by a motor

carrier which is directly or indirectly compensated, monetarily or

otherwise, for the transportation service provided.

Motor Carrier

The FHWA proposes to amend the definition of motor carrier to make

it clear that the term includes a for-hire motor carrier of passengers

which was not subject to economic regulation by the ICC. Motor carrier

would be amended to mean a person providing for-hire carriage.

Motor Common Carrier

Motor Contract Carrier

The FHWA proposes to remove the terms motor common carrier and

motor contract carrier because the terms would not be used in part 387

after the

[[Page 3857]]

amendment of the definition of motor carrier proposed here.

Part 390--Federal Motor Carrier Safety Regulations; General

Part 390 establishes general applicability, definitions, general

requirements, and information pertaining to motor carriers and drivers

subject to the FMCSRs.

Definitions

Accident

The FHWA proposes to clarify the meaning of the term ``public

road'' in the definition of accident by the addition of a parenthetical

phrase. The term ``public road'' is inclusive of privately owned roads

or way which are accessible to the general public such as those within

and around stadiums, arenas, shopping malls, residential developments,

private schools, parking garages and lots, etc. Therefore,

accessibility to the public, not the identity of the owner, is the

major factor which determines whether a road or way is public. The FHWA

proposes to add the phrase ``(inclusive of privately owned way which

are accessible to the general public)'' after the term ``public road''

in the definition of accident in Sec. 390.5.

The current definition of the term accident would be amended by

deleting paragraph (2)(iii), an occurrence in the course of the

operation of a passenger car or a multipurpose passenger vehicle (as

defined in 49 CFR 571.3) by a motor carrier that is not transporting

passengers for hire or hazardous materials of a type and quantity that

require the motor vehicle to be marked or placarded in accordance with

49 CFR 177.823. A passenger car or a multipurpose passenger vehicle is

limited by the definitions in Sec. 571.3 to a motor vehicle designed

for carrying 10 persons or less. The term accident is limited by

definition to an occurrence involving a commercial motor vehicle.

``Commercial motor vehicle'' is limited by the definition in Sec. 390.5

to a motor vehicle with a gross vehicle weight rating or gross

combination weight rating of 10,001 or more pounds, a motor vehicle

designed to transport more than 15 passengers including the driver, or

a motor vehicle used to transport hazardous materials in a quantity

requiring placarding. Therefore, paragraph (2)(iii) would only apply to

two types of motor vehicles involved in an accident: (1) A motor

vehicle which has a gross vehicle weight rating or a gross combination

weight rating of 10,001 or more pounds, is designed to carry 10 persons

or less, and is involved in the private transportation of passengers;

and (2) a passenger car or a multipurpose passenger vehicle operated by

a motor carrier that is subject to the accident recordkeeping

requirements in Sec. 390.15. The exclusion of these types of motor

vehicles from the definition of the term accident is unnecessary. The

FHWA proposes to remove paragraph (2)(iii) from the definition of the

term accident.

Commercial Motor Vehicle

The definitions for CMV in Secs. 383.5 and 390.5 are written

differently in terms of designed passenger capacity and the

transportation of hazardous materials, but they have the same meaning.

There is no reason for two definitions that have no functional

difference. The FHWA, therefore, proposes to amend paragraphs (b) and

(c) of the definition of CMV in Sec. 390.5 to read the same as

paragraphs (c) and (d), respectively, of the definition of CMV in

Sec. 383.5.

Interstate Commerce

The FHWA proposes to add language to the definition of the term

interstate commerce to clarify that transportation within a single

State constitutes interstate commerce if such transportation is the

continuation of a through movement which has originated from outside

the State or is destined to go outside the State. Whether

transportation of property qualifies as interstate commerce depends on

the essential character of the movement which is determined by the

shipper's fixed and persisting intent at the time of shipment. This

intent is ascertained by examining all of the facts and circumstances

surrounding the transportation. Consequently, the motor carrier that

performs an intrastate portion of an interstate movement is engaged in

interstate commerce.

Regularly Employed Driver

The FHWA proposes to replace the term regularly employed driver in

Sec. 390.5 with the term single-employer driver because the FHWA

believes that the latter term is more consistent with the intended

meaning. In addition, the FHWA proposes to clarify that this proposed

term includes a driver who drives a CMV for only one motor carrier on

an intermittent, casual, or occasional basis.

Accident Recordkeeping Requirements

Section 390.3(f) provides general exemptions from the FMCSRs for

certain types of operations and transportation. Section 390.3(f)(2)

exempts from the FMCSRs, unless otherwise specifically provided,

transportation performed by the Federal government, a State, any

political subdivision of a State, or an agency established under a

compact between States that has been approved by the Congress of the

United States. However, Sec. 390.3(f)(2) does specifically make the

recordkeeping requirements of Sec. 390.15(b) applicable to these

governmental entities when engaged in the interstate charter

transportation of passengers. The information required to be maintained

by Sec. 390.15(b) comprises the accident register. The only other

regulations in subchapter B of title 49 which may be applicable to a

government entity engaged in the interstate charter transportation of

passengers are the Controlled Substances and Alcohol Use and Testing

standards in part 382 and the CDL standards in part 383. It makes

little sense to require government entities engaged in the interstate

charter transportation of passengers to maintain an accident register

because these entities are not subject to FHWA compliance reviews and

do not receive accident countermeasure assistance. Therefore, the FHWA

proposes to remove this recordkeeping requirement from

Sec. 390.3(f)(2).

Part 391--Qualifications of Drivers

The primary purpose of part 391 is to ensure that operators of CMVs

meet minimum physical qualifications and possess the necessary

knowledge, skills, and abilities to operate CMVs safely.

Qualification of Drivers

Driver qualification standards are contained in Sec. 391.11 of the

FMCSRs. These standards are minimum requirements that a person must

meet to be qualified to drive a CMV in interstate commerce. The driver

qualification standards are designed to protect the safety of the

motoring public by not permitting a person to drive a CMV who lacks the

essential abilities to perform his/her duties safely.

Paragraphs (4) and (5) in Sec. 391.11(b) require a driver to be

able to determine whether the cargo he/she transports has been properly

distributed and secured and to be familiar with methods and procedures

for securing cargo in or on the CMV that he/she drives. Section

383.111(d) requires CMV operators to have knowledge of the principles

and procedures for the proper handling of cargo in order to obtain a

CDL. Section 392.9(a) prohibits a person from driving a CMV and

prohibits a motor carrier from requiring or permitting a person to

drive a CMV unless the CMV's cargo is properly distributed and

adequately

[[Page 3858]]

secured. The FHWA, therefore, proposes to remove Secs. 391.11(b)(4) and

(5) because these paragraphs are redundant.

The FHWA proposes to remove the completion and furnishing of an

application for employment as a CMV driver as driver qualification

standards. The FHWA believes that the completion and furnishing of an

employment application are not driver qualification standards, but

rather necessary and important actions which enable motor carriers to

evaluate the competence of applicants for CMV driver positions. The

FHWA believes that the failure of a CMV driver to complete and furnish

an application to his/her employing motor carrier should not result in

the CMV driver being unqualified. The FHWA, therefore, proposes to

remove Sec. 391.11(b)(11). This is not intended to affect the

responsibility of CMV drivers to complete and furnish the motor

carriers that employ them with employment applications containing

certain information as required by Sec. 391.21.

Record of Violations

In 1994, the FHWA proposed to remove the requirements related to

the record of violations in 49 CFR 391.27 and 391.51(b)(4) [59 FR 1366,

January 10, 1994]. In comments to this proposal, a recommendation was

made to replace these requirements with similar ones involving an

annual inquiry addressed to the State licensing agency regarding

drivers' driving records. The FHWA took no action on the record of

violations provisions when the final rule was adopted (59 FR 60319,

November 23, 1994), but promised further evaluation of the comments.

In December 1994, the National Transportation Safety Board

recommended (H-94-12) that the FHWA ``immediately revise the Federal

Motor Carrier Safety Regulations to require that motor carriers check a

driver's record, both initially and at least annually, with State

licensing agencies where the driver works and is licensed.'' The

initial inquiry into a driver's driving record to the State licensing

agency is already required by Sec. 391.23.

The FHWA now proposes to replace the requirements related to the

record of violations with similar requirements involving an annual

inquiry to the State licensing agency regarding drivers' driving

records. Interested persons are invited to send comments concerning the

paperwork burden of this proposal to the Office of Management and

Budget (OMB). See the Paperwork Reduction Act section below under

Rulemaking Analyses and Notices for further information.

The sections to be removed or amended by this proposal include

Secs. 391.11(b)(8); 391.25; 391.27; 391.51(b)(3) and (b)(4);

391.51(h)(2) and (h)(3); 391.63(a)(3) and (a)(4); 391.67(a); and

391.68(a). This replacement would create a more effective means for the

motor carrier to obtain information about its drivers' moving

violations during the previous 12 months because it does not rely upon

the memory or honesty of the driver. This amendment would further

highway safety by requiring the motor carrier to better verify that its

drivers have not lost their driving privileges and have not been

otherwise disqualified to drive a CMV. It would also provide a way for

a motor carrier to check whether its drivers who are subject to the CDL

standards have reported their convictions, disqualifications, and

license suspensions, revocations, and cancellations as required by

Secs. 383.31(a) and 383.33. Many motor carriers or their insurance

providers already make such inquiries at least once per year, which is

good evidence that the technique is useful in a safety program.

Road Test

Section 391.31 prohibits a driver from driving a CMV unless he/she

has successfully completed a road test which is administered by the

prospective employing motor carrier. A motor carrier may accept a

driver's license as equivalent to a road test if such driver-applicant

completed a road test in the type of CMV that the motor carrier intends

to assign to him or her, as part of the licensing process. A motor

carrier may also accept a certification of road test issued to the

driver-applicant within the preceding three years. In any event, a

driver-applicant must demonstrate the ability to safely operate the

type of CMV to which he/she will be assigned.

In order to obtain a CDL, a driver must pass a driving skills test

in a CMV which is comparable to the CMV that the driver expects to

operate. At the discretion of a State, either a driving record and

previous passage of an acceptable driving skills test or a driving

record in combination with certain driving experience may be

substituted for the driving skills test (49 CFR 383.77). In all cases,

a driver must demonstrate the ability to operate a certain type of CMV

safely.

The road test requirements in part 391 are redundant for those

driver-applicants who are required to possess a commercial driver's

license or who successfully completed a road test, as part of the

process of obtaining some other type of license or as required by an

employer, in a CMV comparable to the vehicle they own or will drive.

Motor carriers are in a better position than the FHWA to decide whether

a road test remains an effective method for determining whether driver-

applicants who are subject to the driver qualification standards in

part 391, but who are not required to possess a commercial driver's

license, can safely operate their CMVs. The choice should be made by

the prospective employer based on the available information, such as

the nature and extent of a driver-applicant's driving experience; the

type of driver's license that the driver-applicant possesses; the

requirements that the driver-applicant had to meet for such license to

be issued; the number and severity of convictions for violations of

motor vehicle laws; any denial, revocation, or suspension of any

driver's license; and information provided by previous employers. Such

information must be obtained by the new employer [49 CFR 391.21 and

391.23]. The removal of the road test would not affect the requirement

under 49 CFR 391.11(b)(3) that a driver be able to operate the type of

CMV safely that he or she drives by reason of experience, training, or

both.

The removal of the requirements related to the road test would

reduce the paperwork burden upon motor carriers and make the driver

qualification requirements more performance oriented. One thrust of the

Zero Base Regulatory Review is to allow motor carriers more flexibility

in making their operations safe and achieving compliance.

Motor carriers that want to continue giving road tests to their

driver-applicants might prefer the retention of a regulatory

requirement. This is not sufficient reason to retain the road test

provisions. Motor carriers have long been allowed to require or enforce

more stringent safety or health standards than those required by the

FMCSRs [49 CFR 390.3(d)].

The FHWA proposes to remove the requirements related to the road

test. The sections affected by this proposed removal include

Secs. 391.11(b)(10), 391.31, 391.33, 391.49(d)(5), 391.51(c)(4),

391.51(d)(2), 391.61, 391.67(c), 391.68(c), 391.69, and 391.73. The

FHWA, however, proposes to retain the requirement in Sec. 391.49(d)(5)

that a road test be administered to a driver who applies for a waiver

of physical disqualification. The FHWA believes that the agency should

consider only those driver applicants who have successfully completed a

road test

[[Page 3859]]

administered by the motor carrier co-applicant or other appropriate

person, for a waiver of physical disqualification.

Driver Qualification Files

A driver qualification file contains all required documentation

that a driver is qualified to drive a CMV in interstate commerce. These

recordkeeping requirements facilitate enforcement of the driver

qualification standards by enabling FHWA officials to check compliance

quickly. Section 391.51(b)(5) also requires a driver qualification file

to include any other matter which relates to the driver's

qualifications or ability to drive a CMV safely. The FMCSRs offer no

examples or further clarification of what these additional records or

documents might include. A recordkeeping requirement for a nonspecific

record is not necessary. Furthermore, the rules in part 391 establish

minimum qualifications for CMV drivers, and motor carriers are not

prohibited from establishing more stringent driver qualification

standards. In any case, a motor carrier is permitted to maintain any

document in a driver qualification file regardless of the document's

relation to driver qualifications. The FHWA proposes to remove

Sec. 391.51(b)(5) because it is unclear and unnecessary.

Section 391.51 includes exemptions for several types of drivers who

are covered more broadly in Subpart G--Limited Exemptions. The driver

qualification file requirements would be easier to understand if

Sec. 391.51 contained only the general requirements. A motor carrier

could easily determine the driver qualification requirements for a

specific driver by comparing Sec. 391.51 with subpart G. The FHWA

proposes to amend Sec. 391.51 to exclude all but the general

requirements for driver qualification files. This proposal integrates

Sec. 391.51(c) into Sec. 391.51(b) and removes paragraphs (d) and (e)

of Sec. 391.51.

Intermittent, Casual, or Occasional Drivers

Section 391.63 contains a limited exemption from certain driver

qualification requirements for a motor carrier which employs an

intermittent, casual, or occasional driver. That term is defined in

Sec. 390.5 as a driver who in any period of seven consecutive days is

employed or used by more than a single motor carrier. A driver who is

employed by a single motor carrier meets the definition of a regularly

employed driver in Sec. 390.5 even though he or she might work only

intermittently or occasionally. In an effort to promote clarity, the

FHWA proposes to replace the confusing term intermittent, casual, or

occasional driver in Sec. 390.5 and part 391 with the term multiple-

employer driver.

Drivers Furnished by Other Motor Carriers

Section 391.65 contains a limited exemption from the generally

applicable driver qualification requirements for a motor carrier that

employs a driver who was furnished by another motor carrier if the

furnishing motor carrier certifies in writing that the driver is fully

qualified to drive a CMV. This written statement, commonly called a

qualification certificate, must be substantially in accordance with the

form in Sec. 391.65(a)(2). A motor carrier which certifies a driver's

qualification is required under Sec. 391.65(c)(2) to recall the

unexpired certificate carried by the driver immediately upon learning

that the driver is no longer qualified under the regulations in part

391. It is unreasonable to require a motor carrier to recall a

qualification certificate because the carrier's only option is to

request the driver to return the certificate. If the driver is

uncooperative or no longer employed by the motor carrier, there is no

obvious means of securing the return of a certificate of qualification.

The FHWA, therefore, proposes to remove Sec. 391.65(c)(2). Instead,

a new version of Sec. 391.65(c) would declare that the qualification

certificate is no longer valid when the driver leaves the employment of

the motor carrier that issued it or is no longer qualified under part

391. The FHWA also proposes to require that a motor carrier which

employs a driver furnished by another motor carrier contact the motor

carrier which issued the qualification certificate to verify its

validity. This would prevent a driver from obtaining employment through

use of an invalid or false qualification certificate. The FHWA does not

propose to require a motor carrier to make a written record of this

contact. This is in not intended to lessen the motor carrier's

responsibility to ensure that the driver is fully qualified under the

regulations in part 391. Interested persons are invited to send

comments concerning the burden of this proposed requirement to obtain

information, to the OMB. See the Paperwork Reduction Act section below

under Rulemaking Analyses and Notices for further information.

Drivers Operating in Hawaii

Section 391.69 provides a limited exemption from certain driver

qualification requirements for drivers who have been regularly employed

by motor carriers operating in the State of Hawaii continuously since

before April 1, 1975. Section 391.61 provides a limited exemption from

the same requirements for drivers who have been regularly employed by

motor carriers continuously since before January 1, 1971. For a motor

carrier operating in the State of Hawaii, there is considerable overlap

between these exemptions. The only difference is that drivers in Hawaii

need 4\1/4\ fewer years of continuous employment to qualify for the

exemption. Since very few, if any, Hawaiian drivers fall into this

category, Sec. 391.69 is largely redundant and the FHWA proposes to

remove it. The FHWA requests comments from motor carriers operating in

the State of Hawaii as to whether they employ a substantial number of

drivers who have been regularly employed for a continuous period which

began before April 1, 1975, but on or after January 1, 1971.

Intrastate Drivers of Vehicles Transporting Class 3 Combustible Liquids

Section 391.71 contains a limited exemption from certain driver

qualification requirements for drivers who have been regularly employed

by motor carriers continuously since July 1, 1975, and who drive a CMV

transporting Class 3 combustible liquids in intrastate commerce. On

January 24, 1974 [39 FR 2768], Hazardous Materials Docket No. HM-102

established the term combustible liquids which resulted in drivers and

motor vehicles engaged in intrastate operations performed by interstate

motor carriers becoming subject to the FMCSRs for the first time.

Several commenters requested that a permanent exemption be granted from

the requirements of part 391, but provided no data in support thereof.

Nonetheless, a limited exemption was provided to address the

commenters' concerns and minimize the paperwork burden upon the

affected intrastate operations of interstate motor carriers, which

generally include the local delivery of fuel oil and heating oil.

Section 397.2, adopted in 1971, requires that a motor carrier or

other person to whom part 397 applies comply with the FMCSRs (49 CFR

parts 390 through 397) when the person is transporting hazardous

materials requiring the motor vehicle to be marked or placarded.

Section 397.2 was issued jointly under the Explosives and Other

Dangerous Articles Act (EODAA) [formerly 18 U.S.C. 831-835] and the

Interstate Commerce Act (ICA) [now 49 U.S.C. 31502]. The scope of the

EODAA was considered to be broader than that of the ICA and to reach

the intrastate

[[Page 3860]]

operations of an interstate motor carrier. The EODAA was repealed by

the Hazardous Liquid Pipeline Safety Act of 1979 (HLPSA) [49 U.S.C.

60101-60125]. The provisions of the EODAA which were in part the

authority for Sec. 397.2 were not continued in the HLPSA.

Section 177.804 of the Hazardous Materials Regulations (HMRs)

requires motor carriers and other persons subject to 49 CFR part 177 to

comply with the FMCSRs (49 CFR parts 390 through 397) to the extent

those regulations apply. Section 177.804 was issued under the authority

of the Hazardous Materials Transportation Act (HMTA) [49 U.S.C. 5101 et

seq.] as a final rule without notice or opportunity for comment. The

purpose of the issuance of Sec. 177.804 was to make civil penalties and

other enforcement tools of the HMTA applicable to hazardous materials

carriers already subject to the FMCSRs. The issuance of Sec. 177.804

merely reissued, under new authority, regulations already in effect.

Section 177.804 incorporated the FMCSRs by reference; therefore, the

applicability and preemptive effects of the FMCSRs, as reissued under

the HMTA, were not changed.

Consequently, no authority exists to support application of parts

390 through 399 of the FMCSRs to a motor carrier or driver who operates

a CMV transporting hazardous materials in intrastate commerce whether

or not the motor carrier has an interstate operation. Therefore, the

FHWA proposes to remove Sec. 391.71. However, the Controlled Substances

and Alcohol Use and Testing standards in part 382 and the CDL standards

in part 383 apply to drivers and their employers who operate CMVs

transporting hazardous materials in a quantity requiring placarding, in

intrastate commerce. The financial responsibility standards in part 387

continue to apply to motor carriers operating motor vehicles

transporting certain types of hazardous materials, hazardous

substances, and hazardous waste in certain types of containment

systems, in intrastate commerce.

Private Motor Carrier of Passengers (Business)

Section 391.73 contains a limited exemption from certain driver

qualification requirements for a driver who has been a regularly

employed driver of a private motor carrier of passengers (business)

since July 1, 1994, and continues to be so employed by that motor

carrier. With the proposed removal of Secs. 391.69 and 391.71, the

limited exemptions in subpart G of part 391 would appear in a logical

sequence if the limited exemption for drivers of private motor carriers

of passengers (business) immediately followed the limited exemption for

drivers of private motor carriers of passengers (nonbusiness) in

Sec. 391.68. The FHWA proposes to move Sec. 391.73 to Sec. 391.69.

Part 392--Driving of Motor Vehicles

The primary purpose of part 392 is to ensure that CMVs are driven

in a safe manner.

Equipment, Inspection and Use

Section 392.7 prohibits a CMV from being driven unless the driver

is satisfied that nine specified parts and accessories are in good

working order. Section 396.13(a) requires a driver to be satisfied that

the CMV is in safe operating condition before driving the CMV. One of

these duplicative sections should be removed. The FHWA believes that

this requirement is more appropriately contained in Sec. 396.13(a)

because it addresses equipment condition more than safe driving.

Section 392.7 also requires a driver to use or make use of the same

nine specified parts and accessories when and as needed. All of these

parts and accessories including the service brakes, tires, horn,

windshield wipers, etc. are essential vehicular components which

drivers necessarily use. It is redundant for the FMCSRs to require

their use by a driver when and as needed. Therefore, the FHWA proposes

to remove Sec. 392.7.

Emergency Equipment; Inspection and Use

Part 393 prohibits the operation of a CMV that is not equipped in

accordance with the requirements and specifications therein. Section

393.95 requires all power units to be equipped with specific emergency

equipment. Section 392.8 prohibits a CMV from being driven unless the

driver is satisfied that the emergency equipment required by

Sec. 393.95 is in place and ready for use. Section 396.11 requires a

driver to prepare a driver vehicle inspection report (DVIR), which

covers emergency equipment, at the completion of each day's work on

each motor vehicle operated. If the emergency equipment is found to be

defective or missing, this must be shown on the DVIR. Section 396.13

requires the next driver to review the last DVIR and sign it, if

defects or deficiencies were noted by the previous driver, to

acknowledge that the DVIR was reviewed and that there is a

certification that the required repairs have been completed.

Section 392.8 also requires a driver to use or make use of the

emergency equipment required by Sec. 393.95 when and as needed. Section

393.95 requires all power units to be equipped with a fire extinguisher

(except a driven unit in a driveaway-towaway operation), a spare fuse

or other overload protection device if the devices used cannot be

reset, for each kind and size used, and one of several combinations of

warning devices depending on the date the power unit was equipped with

the warning devices. Section 392.22(b) stipulates how warning devices

must be placed when a CMV is stopped upon the traveled portion or

shoulder of a highway and, therefore, covers how warning devices must

be used when needed. It is readily evident to a driver when the use of

a fire extinguisher or spare fuse would be necessary in an emergency.

It is unnecessary for the FMCSRs to impose a general requirement upon

drivers to use or make use of a fire extinguisher or spare fuse when

and as needed. The FHWA proposes to remove Sec. 392.8 because the

requirement that emergency equipment be in place, ready for use, and

used when and as needed is adequately addressed by other sections of

the FMCSRs.

Drivers of Trucks and Truck Tractors

Section 392.9(b) requires a driver of a truck or truck tractor to

assure himself/herself that the motor vehicle's cargo is properly

loaded and secured before driving, inspect the motor vehicle's cargo

and its securement within the first 25 miles of driving, reexamine the

cargo and its securement at a change of duty status or after 3 hours or

150 miles of driving, and make any necessary adjustments to the cargo

or load securing devices. These requirements are highly prescriptive

and enforcement of them is laborious and burdensome. The regulations

for protection against shifting or falling cargo are contained in

subpart I of part 393. Section 392.9(a) prohibits a CMV from being

driven unless the CMV's cargo is properly distributed and adequately

secured in accordance with subpart I of part 393. Section 392.9(b) is

therefore unnecessary. The FHWA proposes to remove Sec. 392.9(b) to

provide motor carriers the flexibility to develop their own policies

and methods to ascertain that a CMV's cargo is properly distributed and

adequately secured in accordance with subpart I of part 393. The

proposed removal of Sec. 392.9(b) would not lessen the responsibility

of a motor carrier or driver to ensure a CMV's cargo is distributed and

secured in a suitable manner to prevent shifting and falling.

Section 392.9(c)(1) prohibits a person from driving a bus unless

all standees

[[Page 3861]]

are rearward of the standee line. This prohibition would be more

appropriately located in subpart G, Prohibited Practices, of part 392

because it addresses unsafe driving more than safe loading. The FHWA

proposes to move Sec. 392.9(c)(1) to Sec. 392.62 and entitle the

section ``Driving of buses, standee line or bar.''

Section 392.9(c)(2) prohibits a person from driving a bus unless

all aisle seats in a bus conform to the requirements of Sec. 393.91.

Section 393.91 requires aisle seats in a bus to be securely fastened to

the motor vehicle and to automatically fold and leave a clear aisle

when unoccupied. Section 393.1 prohibits a CMV from being operated

unless it is equipped in accordance with the requirements and

specifications contained therein. The FHWA proposes to remove

Sec. 392.9(c)(2) because it is redundant.

Section 392.9(c)(3) prohibits a person from driving a bus unless

the baggage, freight, and express on the bus is stowed and secured in a

safe manner. The FHWA proposes to move Sec. 392.9(c)(3) to

Sec. 392.9(b).

Hearing Aid To Be Worn

Section 392.9b requires a driver whose hearing meets the minimum

standards in Sec. 391.41(b)(11) only when wearing a hearing aid to wear

an operating hearing aid while driving and possess a spare power

source. However, if a driver meets the hearing standards only when

wearing a hearing aid, Sec. 391.43(g)(1) requires the medical examiner

to mark the appropriate place, or to write in the statement ``Qualified

only when wearing a hearing aid,'' on the medical examiner's

certificate. Therefore, a driver who meets the hearing standards only

when wearing a hearing aid is not medically qualified to drive a CMV in

interstate commerce when not wearing a hearing aid. A driver who is

subject to and does not meet the medical qualification standards is

prohibited from driving a CMV in interstate commerce.

Section 392.9b is duplicative of the driver qualification

requirements in part 391. The FHWA wants to avoid repetition in the

FMCSRs. In addition, the carriage of extra equipment, including spare

power sources for hearing aids, to ensure against possible

contingencies is best addressed by company policy. The removal of

Sec. 392.9b would not affect the requirement that a driver comply with

the hearing standards when operating a CMV in interstate commerce. The

FHWA proposes to remove Sec. 392.9b.

Railroad Grade Crossing; Stopping Required

Section 392.10 requires the driver of a cargo tank motor vehicle or

a CMV transporting passengers, chlorine, or hazardous materials

requiring placarding or marking to stop the CMV and ascertain that no

train is approaching before crossing a railroad grade. Section 392.10

also prohibits a driver of these types of CMVs from shifting gears when

crossing the tracks. The National Transportation Safety Board (NTSB)

recommended that the FHWA amend Sec. 392.10 to require CMVs

transporting hazardous materials requiring placarding to stop prior to

crossing a railroad grade with a warning device only when the device is

activated to warn drivers of an approaching train. A warning device

includes a functioning highway traffic signal, gate, or a device that

uses sound or light(s) to warn drivers of an approaching train. This

recommendation would make Sec. 392.10 consistent with the Uniform

Vehicle Code. It is not necessary for CMVs to stop immediately prior to

crossing a railroad grade when a warning device is present and not

activated. The FHWA, therefore, proposes to amend Sec. 392.10 to

implement the NTSB's recommendation.

Drawbridges; Slowing Down of Commercial Motor Vehicles

Section 392.13 requires a CMV that is approaching a drawbridge to

be driven at a rate of speed which will permit the CMV to be stopped

before reaching the lip of the draw and to proceed only when the draw

is completely closed. State and local law enforcement officers are

responsible for enforcing regulations regarding stopping and slowing of

CMVs approaching drawbridges. Section 392.13 is not easily enforced by

special agents of the FHWA and is more appropriately addressed by State

and local traffic laws. The FHWA proposes to remove Sec. 392.13.

Hazardous Conditions; Extreme Caution

Section 392.14 requires a CMV driver to exercise extreme caution

and reduce speed when hazardous conditions adversely affect visibility

and traction. If driving conditions become sufficiently dangerous, a

CMV driver must discontinue operation of the CMV until driving

conditions improve to the point in which the CMV can be safely

operated. Whenever compliance with these requirements increases hazard

to passengers, however, the CMV may be operated to the nearest point

where the safety of the passengers is assured.

These requirements are fundamental safe driving practices and are

likely incorporated into the policy manuals of most motor carriers. In

addition, most, if not all, State and local authorities prohibit the

driving of a motor vehicle at a speed during adverse driving conditions

which endangers the safety of the motoring public, even though such

speed is at or below the posted speed limit. These requirements are

already and more appropriately monitored and enforced by State and

local authorities. The FHWA proposes to remove Sec. 392.14.

Required and Prohibited Use of Turn Signals

Section 392.15 contains requirements and prohibitions regarding the

use of turn signals which are already and more appropriately monitored

and enforced by State and local authorities. The FHWA proposes to

remove Sec. 392.15.

Unattended Vehicles; Precautions

Section 392.20 prohibits a CMV from being left unattended until the

parking brake has been securely set and all reasonable precautions have

been taken to prevent movement. The parking and attendance of a CMV

containing no hazardous materials are more appropriately monitored and

enforced by State and local authorities. The FHWA proposes to remove

Sec. 392.20.

Emergency Signals; Stopped Vehicles

Section 392.22(b) stipulates how warning devices must be placed

when a CMV is stopped on the traveled portion or shoulder of a highway.

The general rule requires that three warning devices be placed in

various directions and at various approximate distances from the

stopped CMV. One warning device must be placed at the traffic side of

the stopped CMV within 10 feet of the front or rear of the CMV. Another

warning device must be placed approximately 100 feet from the stopped

CMV in the center of the occupied traffic lane or shoulder in the

direction of approaching traffic. A third warning device must be placed

approximately 100 feet from the stopped CMV in the center of the

occupied lane or shoulder in the opposite direction from the other two

warning devices.

The warning devices are often not placed at the correct locations.

All three warning devices are often incorrectly placed behind the

stopped CMV in the direction toward approaching traffic. The FHWA

proposes to amend the regulatory language to promote better

understanding of the requirements.

The warning devices are often not placed at the correct distances

from the

[[Page 3862]]

stopped CMV, in part because of the inability of drivers to determine

approximate distances correctly by eye. To address this problem, the

FHWA proposes to include the number of paces within parentheses next to

the required distances; the proposed rule treats one pace as 2.5 feet.

This will aid compliance by providing more guidance on the placement of

emergency warning devices.

Emergency Signals; Dangerous Cargoes

Section 392.25 prohibits the use of any flame-producing emergency

signal for protecting any CMV transporting Division 1.1, 1.2, and 1.3

explosives; any cargo tank motor vehicle used for the transportation of

any flammable liquid or flammable compressed gas, whether loaded or

empty; or any CMV using compressed gas as a motor fuel. Section

393.95(g) prohibits any signal produced by a flame, including liquid

burning emergency flares, fusees, and oil lanterns, to be carried on

the same types of CMVs. It is unnecessary to prohibit the use of such

signals when it is already illegal to have them in the CMV. The FHWA

proposes to remove Sec. 392.25.

Notification of License Revocation

Section 392.42 requires a driver who receives a notice that his/her

license, permit, or privilege to operate a CMV has been revoked,

suspended, or withdrawn to notify his/her employing motor carrier of

such action before the end of the business day following the day of

notification. This notification requirement would be more appropriately

included in Sec. 391.15, entitled ``Disqualification of drivers,''

because it addresses the disqualification of drivers more than safe

driving. The FHWA proposes to move the notification requirement in

Sec. 392.42 to Sec. 391.15(b)(2), and entitle paragraph (b) ``Loss of

driving privileges.''

The FHWA requests comments from State driver licensing agencies

regarding whether such agencies send a written notification to the

employing motor carrier of a driver who has had his/her license,

permit, or privilege to operate a CMV revoked, suspended, or withdrawn.

For those agencies that do, the FHWA requests information about whether

the driver receives a written notification from the agency stating that

the agency has sent written notification of the revocation, suspension,

or withdrawal to his/her employing motor carrier. Upon consideration of

comments in response to this request, the FHWA may add additional

language to Sec. 391.15(b) which would exempt a driver of his/her

notification requirement if the State licensing agency sends written

notification to the driver's employing motor carrier of the revocation,

suspension, or withdrawal and also sends written notification to the

driver that his/her employing motor carrier was sent such written

notification.

Reserve Fuel

Section 392.51 prohibits the supply of fuel for the propulsion of a

CMV or the operation of its accessories from being carried on the CMV

except in a properly mounted fuel tank or tanks. Section 392.51 is

intended to address the carriage of small packages containing fuel when

the fuel is intended for consumption by the CMV or its accessories.

This practice, however, is not prohibited when the fuel is intended for

other purposes such as consumption by machinery being transported. The

FHWA believes there is no sound reason to prohibit the carriage of

small packages containing fuel in some but not all circumstances. The

FHWA proposes to remove Sec. 392.51.

Buses; Fueling

Section 392.52 prohibits the fueling of a bus in a closed building

with passengers aboard and limits the number of times a bus may be

fueled with passengers aboard to the minimum number of times necessary.

The fueling of a bus in a closed building with passengers aboard is an

extremely rare occurrence which does not warrant a Federal prohibition.

The number of times a bus is fueled with passengers aboard has little

effect upon highway safety and is not an issue which is properly

addressed by the FMCSRs. The FHWA proposes to remove Sec. 392.52.

Motive Power Not To Be Disengaged

Section 392.68 prohibits a CMV from being driven with the source of

motive power disengaged from the driving wheels except when such

disengagement is necessary to stop or to shift gears. Such a

prohibition is more appropriately monitored and enforced by State and

local authorities. The FHWA proposes to remove Sec. 392.68.

Part 395--Hours of Service of Drivers

The primary purpose of part 395 is to prevent a CMV driver from

driving while fatigued by establishing hours of service limitations and

recordkeeping requirements.

Definitions

On Duty Time

The driver requirements of Secs. 392.7 and 392.8 relating to

inspection and use of parts, accessories, and emergency equipment is

mentioned in paragraph (2) of the definition of on duty time in

Sec. 395.2. As previously explained, the FHWA proposes to remove

Secs. 392.7 and 392.8, thereby necessitating a revision of paragraph

(2).

Part 396--Inspection, Repair, and Maintenance

The primary purpose of part 396 is to ensure that CMVs are in safe

operating condition by requiring motor carriers to systematically

inspect, repair, and maintain, or cause to be systematically inspected,

repaired, and maintained, all motor vehicles subject to their control.

Driver Vehicle Inspection Reports

Section 396.11(c)(3) requires a legible copy of the last DVIR to be

carried on the power unit. The reason for this retention requirement is

to enable roadside inspectors to determine whether a DVIR was prepared

at the completion of the previous day's work. However, the decision to

conduct a roadside inspection of the CMV is not influenced by the

presence or absence of a DVIR. Furthermore, failure to have a copy of

the last DVIR in the power unit is not an out-of-service violation

under the North American Out-of-Service Criteria. The FHWA proposes to

remove Sec. 396.11(c)(3) because its benefit is outweighed by the

burden imposed. This proposed removal is in no way intended to affect

the accessibility of the last DVIR which a driver must review before

driving a CMV. The FHWA proposes to amend Sec. 396.13(b) by removing

the language that the last DVIR is required to be carried on the power

unit.

For ease of reference, a distribution table is provided for the

current sections and the proposed sections as follows:

----------------------------------------------------------------------------------------------------------------

Current section Proposed section

----------------------------------------------------------------------------------------------------------------

387.5......................................... 387.5 definitions revised.

For-hire carriage......................... Revised.

Motor carrier............................. Revised.

387.27........................................ 387.27(b)(4) added.

[[Page 3863]]

387.29........................................ 387.29 definitions revised.

For-hire carriage......................... Revised.

Motor carrier............................. Revised.

Motor common carrier...................... Removed.

Motor contract carrier.................... Removed.

390.3(f)(2)................................... Revised.

390.5......................................... 390.5 definitions revised.

Accident.................................. Revised.

Commercial motor vehicle.................. Revised.

Interstate commerce....................... Revised.

Intermittent, casual, or occasional driver Renamed: Multiple-employer driver.

Principal place of business............... Revised.

Regularly employed driver................. Renamed: Single-employer driver.

390.29 added.

391.11(b)(4).................................. Removed.

391.11(b)(5).................................. Removed.

391.11(b)(6).................................. 391.11(b)(4).

391.11(b)(7).................................. 391.11(b)(5).

391.11(b)(8).................................. Removed.

391.11(b)(9).................................. 391.11(b)(6).

391.11(b)(10)................................. Removed.

391.11(b)(11)................................. Removed.

391.15(b)..................................... 391.15(b) (1) and (2).

391.25........................................ Revised.

391.27........................................ Removed and reserved.

391.31........................................ Removed and reserved.

391.33........................................ Removed and reserved.

391.49(d)(5).................................. Revised.

391.51(a)..................................... Revised.

391.51(b)..................................... Revised.

391.51(c)..................................... Removed.

391.51(d)..................................... Removed.

391.51(e)..................................... Removed.

391.51(f)..................................... 391.51(c) and revised.

391.51(g)..................................... Removed.

391.51(h)..................................... 391.51(d) and revised.

391.61........................................ Revised.

391.63........................................ Revised.

391.65(b)..................................... Revised.

391.65(c)..................................... Revised.

391.67........................................ Revised.

391.68........................................ Revised.

391.69........................................ Removed.

391.71........................................ Removed and reserved.

391.73........................................ 391.69 and revised.

392.7......................................... Removed and reserved.

392.8......................................... Removed and reserved.

392.9(b)...................................... Removed.

392.9(c)(1)................................... 392.62.

392.9(c)(2)................................... Removed.

392.9(c)(3)................................... 392.9(b).

392.9b........................................ Removed and reserved.

392.10(b)(1).................................. 392.10(b)(3).

392.10(b)(3).................................. 391.10(b)(1) and revised.

392.13........................................ Removed and reserved.

392.14........................................ Removed and reserved.

392.15........................................ Removed and reserved.

392.20........................................ Removed and reserved.

392.22(b)(1).................................. Revised.

392.25........................................ Removed and reserved.

392.42........................................ Removed and reserved.

392.51........................................ Removed and reserved.

392.52........................................ Removed and reserved.

392.62........................................ Added.

392.68........................................ Removed and reserved.

395.1(g)...................................... Removed.

395.1(h)...................................... 395.1(g).

395.1(i)...................................... 395.1(h).

395.1(j)...................................... 395.1(i).

395.1(k)...................................... 395.1(j).

395.2......................................... 395.2 definitions revised.

On-duty time.................................. Revised.

395.8(k)(1)................................... Revised.

396.11(b)..................................... Revised.

[[Page 3864]]

396.11(c)..................................... Revised.

396.11(c)(1).................................. Revised.

396.11(c)(2).................................. Revised.

396.11(c)(3).................................. Removed.

396.11(d)..................................... Revised.

396.13(b)..................................... Revised.

397.19(b)..................................... Revised.

----------------------------------------------------------------------------------------------------------------

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

The FHWA has determined that this regulatory action is not

significant under Executive Order 12866 or regulatory policies and

procedures of the DOT. It is anticipated that the economic impact of

this rulemaking will be minimal. In addition, this regulatory action is

not expected to cause an adverse effect on any sector of the economy.

The regulations which are the subject of this proposed rule are

obsolete, redundant, unnecessary, ineffective, burdensome, more

appropriately regulated by State and local authorities, better

addressed by company policy, in need of clarification, or more

appropriately contained in another section. Thus, this rulemaking will

actually lessen the burden imposed by these regulations which will be

removed, amended, or redesignated as a result. No serious inconsistency

or interference with another agency's actions or plans will result

because this rulemaking deals exclusively with the FMCSRs. In addition,

the rights and obligations of recipients of Federal grants will not be

materially affected by this regulatory action. In light of this

analysis, the FHWA finds that 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 proposed rule on small

entities. The FHWA believes that this proposed rule would not have a

significant economic impact on a substantial number of small entities.

The FHWA intends to further evaluate the economic consequences of this

proposal on small entities in light of the comments received in

response to this notice.

For the most part, this rulemaking would merely lessen the burden

of complying with the FMCSRs by making these regulations clearer and

less redundant. As a result, all entities which are subject to these

regulations would benefit, regardless of the size of the entity. This

regulatory action will also facilitate compliance with the FMCSRs by

removing regulations on certain areas that are more appropriately

addressed by company policy. This action would thus provide motor

carriers with more flexibility to pursue their own attempts at

furthering the safety of their operations.

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 impacts to

warrant the preparation of a Federalism Assessment.

These proposed changes to the FMCSRs will not preempt any State law

or State regulation and no additional costs or burdens will be imposed

on the States thereby. In fact, regulatory burdens will be lessened as

a result of this rulemaking. In addition, this rule will not have a

significant effect on the States' ability to execute traditional State

governmental functions.

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 do not apply to this program.

Paperwork Reduction Act

The information collection requirements that would be imposed as a

result of this rulemaking are being submitted to the OMB for approval

in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-

3520. This rulemaking proposes two new required collections of

information. The first is a recordkeeping requirement, an annual

inquiry into drivers' driving records, which would be included in the

following information collection:

Title: Driver Qualification Files.

Affected Public: Approximately 373,000 motor carriers.

Abstract: Motor carriers are required to maintain a driver

qualification file for each CMV driver to document that the driver

meets the qualification standards to drive in interstate commerce.

Need: To ensure that motor carriers employ only qualified

interstate CMV drivers.

Requested Time Period of Approval: Three years.

Estimated Annual Burden: Based on an estimate of 5,500,000

interstate CMV drivers, annual inquiries into drivers' driving records

would impose an estimated annual burden of 398,750 hours. The

recordkeeping requirements related to the record of violations impose

an estimated annual burden of 159,500 hours. The replacement of these

requirements with the proposed recordkeeping requirements related to

annual inquiries into drivers' driving records, would increase the

total estimated annual burden of driver qualification files (approved

by the OMB under control number 2125-0065) by 239,250 hours, from total

836,916 hours to total 1,076,166 hours.

The second proposed information collection is a requirement for

motor carriers that use a driver who is furnished by another motor

carrier, to obtain information regarding the validity of the driver's

qualification certificate. This requirement would be included in the

following information collection:

Title: Qualification Certificate.

Affected Public: Approximately 373,000 motor carriers.

[[Page 3865]]

Abstract: A motor carrier that employs a driver who is furnished by

another motor carrier, is exempt from maintaining a driver

qualification file for such driver, provided a qualification

certificate is obtained from the furnishing motor carrier.

Need: To ensure that motor carriers employ only qualified

interstate CMV drivers.

Requested Time Period of Approval: Three years.

Estimated Annual Burden: The proposed information collection

involving contacts to verify the validity of qualification certificates

would increase the total estimated annual burden of qualification

certificates (approved by the OMB under control number 2125-0081) by

13,750 hours, from 13,750 total hours to 27,500 total hours.

Comments on these proposed collections of information may be

submitted to the OMB. Interested parties should send comments to the

Office of Information and Regulatory Affairs, Office of Management and

Budget, 725--17th Street, NW., Washington, DC 20503, Attention: Desk

Officer for Federal Highway Administration. The OMB is required to make

a decision concerning the proposed recordkeeping requirement between 30

and 60 days after publication of this action. A comment to the OMB will

be most effective if the OMB receives it within 30 days of publication.

Comments are invited on any aspect of the proposed collections of

information including, but not limited to: (1) The necessity and

utility of the information collection for the proper performance of the

functions of the FHWA; (2) the accuracy of the estimated burden; (3)

ways to enhance the quality, utility, and clarity of the collected

information; and (4) ways to minimize the collection burden without

reducing the quality of the collected information.

National Environmental Policy Act

The agency has analyzed this action for the purpose of the National

Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) 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

49 CFR Part 387

Hazardous materials transportation, Highways and roads, insurance,

Motor carriers, Penalties, Reporting and recordkeeping requirements,

Surety bonds.

49 CFR Part 390

Highways and roads, Intermodal transportation, Motor carriers,

Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 391

Highways and roads, Motor carriers--driver qualifications, Motor

vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 392

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

practices, Motor vehicle safety.

49 CFR Part 395

Global positioning systems, Highways and roads, Intelligent

transportation systems, Motor carriers--driver hours of service, Motor

vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 396

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

maintenance, Motor vehicle safety, Reporting and recordkeeping

requirements.

49 CFR Part 397

Hazardous materials transportation, Highways and roads, Motor

carriers, Motor vehicle safety.

Issued on: January 7, 1997.

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 387,

390, 391, 392, 395, 396, and 397 as set forth below:

PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR

CARRIERS

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

follows:

Authority: 49 U.S.C. 31138 and 31139; and 49 CFR 1.48.

2. In Sec. 387.5, the definitions for-hire carriage and motor

carrier are revised to read as follows:

Sec. 387.5 Definitions.

* * * * *

For-hire carriage means transportation of property by a common,

contract, or exempt commodity motor carrier of property.

* * * * *

Motor carrier means a for-hire or private motor carrier of

property.

* * * * *

3. Section 387.27 is amended by adding paragraph (b)(4) to read as

follows:

Sec. 387.27 Applicability.

* * * * *

(b) * * *

(4) A motor vehicle operated by a contract motor carrier providing

transportation of preprimary, primary, and secondary students for

extracurricular trips organized, sponsored, and paid by a school

district.

4. In Sec. 387.29, the definitions of the terms motor common

carrier and motor contract carrier are removed; and the definitions of

for-hire carriage and motor carrier are revised to read as follows:

Sec. 387.29 Definitions.

* * * * *

For-hire carriage means transportation of passengers which is

generally available to the public at large and is performed for a

commercial purpose by a motor carrier which is directly or indirectly

compensated, monetarily or otherwise, for the transportation service

provided.

* * * * *

Motor carrier means a person providing for-hire carriage.

* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

5. The authority citation for part 390 continues to read as

follows:

Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and

31504; and 49 CFR 1.48.

6. Section 390.3 is amended by revising paragraph (f)(2) to read as

follows:

Sec. 390.3 General applicability.

* * * * *

(f) * * *

(2) Transportation performed by the Federal government, a State, or

any political subdivision of a State, or an agency established under a

compact between States that has been approved by the Congress of the

United States.

* * * * *

7. In Sec. 390.5, the definition of the term accident is revised;

the terms

[[Page 3866]]

intermittent, casual, or occasional driver and regularly employed

driver are removed; the terms multiple-employer driver and single-

employer driver are added; and the terms commercial motor vehicle,

interstate commerce, and principal place of business are revised. All

are placed in alphabetical order and read as follows:

Sec. 390.5 Definitions.

* * * * *

Accident means:

(1) Except as provided in paragraph (2) of this definition, an

occurrence involving a commercial motor vehicle operating on a public

road (inclusive of privately owned roads which are accessible to the

public) in interstate or intrastate commerce which results in:

(i) A fatality;

(ii) Bodily injury to a person who, as a result of the injury,

immediately receives medical treatment away from the scene of the

accident; or

(iii) One or more motor vehicles incurring disabling damage as a

result of the accident, requiring the motor vehicle(s) to be

transported away from the scene by a tow truck or other motor vehicle.

(2) The term accident does not include:

(i) An occurrence involving only boarding and alighting from a

stationary motor vehicle; or

(ii) An occurrence involving only the loading or unloading of

cargo.

* * * * *

Commercial motor vehicle means any self-propelled or towed vehicle

used on public highways in interstate commerce to transport passengers

or property if the vehicle:

(1) Has a gross vehicle weight rating or gross combination weight

rating of 10,001 or more pounds; or

(2) Is designed to transport 16 or more passengers, including the

driver; or

(3) Is of any size and is used in the transportation of materials

found to be hazardous for the purposes of the Hazardous Materials

Transportation Act (49 U.S.C. 5101 et seq.) and which require the motor

vehicle to be placarded under the Hazardous Materials Regulations (49

CFR Part 172, Subpart F).

* * * * *

Interstate commerce means trade, traffic, or transportation in the

United States--

(1) Between a place in a State and a place outside of such State

(including a place outside of the United States);

(2) Between two places in a State through another State or a place

outside of the United States; or

(3) Between two places in a State as part of trade, traffic, or

transportation described in paragraphs (1) or (2) of this definition.

* * * * *

Multiple-employer driver means a driver, who in any period of 7

consecutive days, is employed or used as a driver by more than one

motor carrier. The qualification of such a driver shall be determined

and recorded in accordance with the provisions of Secs. 391.63 or

391.65 of this subchapter, as applicable.

* * * * *

Principal place of business means:

(1) For a motor carrier with a single place of business, the single

location where records required by parts 387, 390, 391, and 395 of this

subchapter must be maintained and where records required by parts 382

and 396 of this subchapter must be made available for inspection within

48 hours (Saturdays, Sundays, and Federal holidays excluded) after a

request has been made by a special agent or authorized representative

of the Federal Highway Administration.

(2) For a motor carrier with multiple offices or terminals, the

single location designated by the motor carrier, normally its

headquarters, where records required by parts 382, 387, 390, 391, 395,

and 396 must be made available for inspection within 48 hours

(Saturdays, Sundays, and Federal holidays excluded) after a request has

been made by a special agent or authorized representative of the

Federal Highway Administration.

* * * * *

Single-employer driver means a driver who, in any period of 7

consecutive days, is employed or used as a driver solely by a single

motor carrier. Such term includes a driver who operates a commercial

motor vehicle on an intermittent, casual, or occasional basis.

* * * * *

8. Section 390.29 is added to read as follows:

Sec. 390.29 Location of records or documents.

(a) A motor carrier with multiple offices or terminals may maintain

the records and documents required by this subchapter at a regional

office or driver work-reporting location unless otherwise specified in

this subchapter.

(b) All records and documents required by this subchapter which are

maintained at a regional office or driver work-reporting location shall

be made available for inspection upon request by a special agent or

authorized representative of the Federal Highway Administration at the

motor carrier's principal place of business or other location specified

by the agent or representative within 48 hours after a request is made.

Saturdays, Sundays, and Federal holidays are excluded from the

computation of the 48-hour period of time.

PART 391--QUALIFICATIONS OF DRIVERS

9. The authority citation for part 391 continues to read as

follows:

Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR

1.48.

Sec. 391.11 [Amended]

10. Section 391.11 is amended by revising paragraph (b) to read as

follows:

Sec. 391.11 Qualifications of drivers.

* * * * *

(b) Except as provided in subpart G of this part, a person is

qualified to drive a motor vehicle if he/she--

(1) Is at least 21 years old;

(2) Can read and speak the English language sufficiently to

converse with the general public, to understand highway traffic signs

and signals in the English language, to respond to official inquiries,

and to make entries on reports and records;

(3) Can, by reason of experience, training, or both, safely operate

the type of commercial motor vehicle he/she drives;

(4) Is physically qualified to drive a commercial motor vehicle in

accordance with subpart E--Physical Qualifications and Examinations of

part 391;

(5) Has a currently valid commercial motor vehicle operator's

license issued only from one State or jurisdiction; and

(6) Is not disqualified to drive a commercial motor vehicle under

the rules in Sec. 391.15.

11. Section 391.15 is amended by revising paragraph (b) to read as

follows:

Sec. 391.15 Disqualification of drivers.

* * * * *

(b) Loss of driving privileges.

(1) A driver is disqualified for the duration of the driver's loss

of his/her privilege to operate a commercial motor vehicle on public

highways, either temporarily or permanently, by reason of the

revocation, suspension, withdrawal, or denial of an operator's license,

permit, or privilege, until that operator's license, permit, or

privilege is restored by the authority that revoked, suspended,

withdrew, or denied it.

(2) A driver who receives a notice that his/her license, permit, or

privilege to operate a commercial motor vehicle has been revoked,

suspended, or withdrawn shall notify the motor carrier that

[[Page 3867]]

employs him/her of the contents of the notice before the end of the

business day following the day the driver received it.

* * * * *

12. Section 391.25 is revised to read as follows:

Sec. 391.25 Annual inquiry and review of driving record.

(a) Except as provided in subpart G of this part, each motor

carrier shall, at least once every 12 months, make an inquiry into the

driving record of each driver it employs, covering at least the

preceding 12 months, to the appropriate agency of every State in which

the driver held a commercial motor vehicle operator's license or permit

during the time period.

(b) Except as provided in subpart G of this part, each motor

carrier shall, at least once every 12 months, review the driving record

of each driver it employs to determine whether that driver meets

minimum requirements for safe driving or is disqualified to drive a

commercial motor vehicle pursuant to Sec. 391.15.

(1) The motor carrier must consider any evidence that the driver

has violated any applicable Federal Motor Carrier Safety Regulations or

Hazardous Materials Regulations.

(2) The motor carrier must consider the driver's accident record

and any evidence that the driver has violated laws governing the

operation of motor vehicles, and must give great weight to violations,

such as speeding, reckless driving, and operating while under the

influence of alcohol or drugs, that indicate that the driver has

exhibited a disregard for the safety of the public.

(c) Recordkeeping.

(1) A copy of the response by each State agency to the inquiry

required by paragraph (a) of this section, showing the driver's driving

record or certifying that no driving record exists for the driver,

shall be maintained in the driver's qualification file.

(2) A note, including the name of the person who performed the

review of the driving record required by paragraph (b) of this section

and the date of such review, shall be maintained in the driver's

qualification file.

Sec. 391.27 [Removed and Reserved]

13. Section 391.27 is removed and reserved.

Subpart D of Part 391--[Removed and Reserved]

14. Subpart D of part 391 (Secs. 391.31 and 391.33) is removed and

reserved.

15. Section 391.49 is amended by revising paragraph (d)(5) to read

as follows:

Sec. 391.49 Waiver of certain physical defects.

* * * * *

(d) * * *

(5) Road test:

(i) A motor carrier coapplicant shall ensure that a driver

applicant has successfully completed a road test. The road test shall

be given by the motor carrier or a person designated by it. The test

shall be given by a person who is competent to evaluate the driver

applicant's performance and determine whether he/she can operate the

type of commercial motor vehicle, and associated equipment, the motor

carrier intends to assign him/her.

(ii) A unilateral driver applicant shall be responsible for having

a road test administered by a person who is competent to evaluate the

driver applicant's performance and determine whether he/she can operate

the type of commercial motor vehicle, and associated equipment, he/she

proposes to operate.

(iii) At a minimum, the person who takes the road test must be

evaluated on his/her skill at performing each of the following:

(A) Coupling and uncoupling of combination units, if applicable;

(B) Placing the commercial motor vehicle in operation;

(C) Use of the commercial motor vehicle's controls and emergency

equipment;

(D) Operating the commercial motor vehicle in traffic including

passing other motor vehicles;

(E) Turning the commercial motor vehicle;

(F) Braking and slowing the commercial motor vehicle by means other

than braking; and

(G) Backing and parking the commercial motor vehicle.

(iv) If the road test is successfully completed, the person who

gave it shall certify in writing that the person tested possesses

sufficient driving skill to operate safely the type of commercial motor

vehicle in which the test was given. The written certification shall

include the date of the road test, the name of person tested; the type

of power unit and trailer(s), or type of bus used for the test; and

name, signature, occupation, and address of the person who gave the

test.

* * * * *

16. Section 391.51 is revised to read as follows:

Sec. 391.51 General requirements for driver qualification files.

(a) Each motor carrier shall maintain a driver qualification file

for each driver it employs. A driver's qualification file may be

combined with his/her personnel file.

(b) The qualification file for a driver must include:

(1) The driver's application for employment completed in accordance

with Sec. 391.21;

(2) The written record with respect to each past employer who was

contacted and a copy of the response by each State agency, pursuant to

Sec. 391.23 involving investigation and inquiries;

(3) The response of each State agency to the annual driver record

inquiry required by Sec. 391.25(a);

(4) The note relating to the annual review of the driver's driving

record as required by Sec. 391.25(c)(2);

(5) The medical examiner's certificate of his/her physical

qualification to drive a commercial motor vehicle as required by

Sec. 391.43(f) or a legible photographic copy of the certificate; and

(6) The letter from the Regional Director of Motor Carriers

granting a waiver of a physical disqualification, if a waiver was

issued under Sec. 391.49.

(c) Except as provided in paragraph (d) of this section, each

driver's qualification file shall be retained for as long as a driver

is employed by that motor carrier and for 3 years thereafter.

(d) The following records may be removed from a driver's

qualification file 3 years after the date of execution:

(1) The response of each State agency to the annual driver record

inquiry required by Sec. 391.25(a);

(2) The note relating to the annual review of the driver's driving

record as required by Sec. 391.25(c)(2);

(3) The medical examiner's certificate of the driver's physical

qualification to drive a commercial motor vehicle or the photographic

copy of the certificate as required by Sec. 391.43(f); and

(4) The letter issued under Sec. 391.49 granting a waiver of a

physical disqualification.

(Approved by the Office of Management and Budget under control

number 2125-0065)

17. 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) and Sec. 391.23 (relating to investigations and inquiries)

do not apply to a driver who has been a single-employer 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 single-employer driver of that motor carrier.

18. Section 391.63 is revised to read as follows:

[[Page 3868]]

Sec. 391.63 Multiple-employer drivers.

(a) If a motor carrier employs a person as a multiple-employer

driver (as defined in Sec. 390.5 of this subchapter), the motor carrier

shall comply with all requirements of this part, except that the motor

carrier need not--

(1) Require the person to furnish an application for employment in

accordance with Sec. 391.21;

(2) Make the investigations and inquiries specified in Sec. 391.23

with respect to that person;

(3) Perform the annual driving record inquiry required by

Sec. 391.25(a); or

(4) Perform the annual review of the person's driving record

required by Sec. 391.25(b).

(b) Before a motor carrier permits a multiple-employer driver to

drive a commercial motor vehicle, the motor carrier must obtain his/her

name, his/her social security number, and the identification number,

type and issuing State of his/her commercial motor vehicle operator's

license. The motor carrier must maintain this information for three

years after employment of the multiple-employer driver ceases.

19. Section 391.65 is amended by revising paragraphs (b) and (c) to

read as follows:

Sec. 391.65 Drivers furnished by other motor carriers.

* * * * *

(b) A motor carrier that obtains a certificate in accordance with

paragraph (a)(2) of this section shall:

(1) Contact the motor carrier which certified the driver's

qualifications under this section to verify the validity of the

certificate. This contact may be made in person, by telephone, or by

letter.

(2) Retain a copy of that certificate in its files for 3 years.

(c) A motor carrier which certifies a driver's qualifications under

this section shall be responsible for the accuracy of the certificate.

The certificate is no longer valid if the driver leaves the employment

of the motor carrier which issued the certificate or is no longer

qualified under the rules in this part.

20. Section 391.67 is revised to read as follows:

Sec. 391.67 Farm vehicle drivers of articulated commercial motor

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 commercial motor vehicle:

(a) Section 391.11(b)(1) (relating to age);

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

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

drivers); and

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

21. Section 391.68 is revised to read as follows:

Sec. 391.68 Private motor carrier of passengers (nonbusiness).

The following rules in this part do not apply to a private motor

carrier of passengers (nonbusiness) and its drivers:

(a) Section 391.21 (relating to application for employment);

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

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

drivers);

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

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

her person;

(d) Subpart F (relating to maintenance of files and records); and

(e) Subpart H (relating to controlled substances testing).

22. Section 391.69 is revised to read as follows:

Sec. 391.69 Private motor carrier of passengers (business).

The provisions of Sec. 391.21 (relating to applications for

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

do not apply to a driver who was a single-employer driver (as defined

in Sec. 390.5 of this subchapter) of a private motor carrier of

passengers (business) as of July 1, 1994, so long as the driver

continues to be a single-employer driver of that motor carrier.

Sec. 391.71 [Removed and Reserved]

23. Section 391.71 is removed and reserved.

Sec. 391.73 [Removed and Reserved]

24. Section 391.73 is removed and reserved.

PART 392--DRIVING OF MOTOR VEHICLES

25. The authority citation for part 392 continues to read as

follows:

Authority: 49 U.S.C. 31136 and 31502; and 49 CFR 1.48.

Sec. 392.7 [Removed and Reserved]

26. Section 392.7, Equipment, inspection and use, is removed and

reserved.

Sec. 392.8 [Removed and Reserved]

27. Section 392.8, Emergency equipment, inspection, and use, is

removed and reserved.

28. Section 392.9 is revised to read as follows:

Sec. 392.9 Safe loading.

(a) General. No person shall drive a commercial motor vehicle and a

motor carrier shall not require or permit a person to drive a

commercial motor vehicle unless--

(1) The commercial motor vehicle's cargo is properly distributed

and adequately secured as specified in Secs. 393.100--393.106 of this

subchapter;

(2) The commercial motor vehicle's tailgate, tailboard, doors,

tarpaulins, its spare tire and other equipment used in its operation,

and the means of fastening the commercial motor vehicle's cargo are

secured; and

(3) The commercial motor vehicle's cargo or any other object does

not obscure the driver's view ahead or to the right or left sides,

interfere with the free movement of his arms or legs, prevent his free

and ready access to accessories required for emergencies, or prevent

the free and ready exit of any person from the commercial motor

vehicle's cab or driver's compartment.

(b) Buses. No person shall drive a bus and a motor carrier shall

not require or permit a person to drive a bus unless the baggage,

freight, or express on the bus is stowed and secured in a manner which

assures--

(1) Unrestricted freedom of movement to the driver and his proper

operation of the bus;

(2) Unobstructed access to all exits by any occupant of the bus;

and

(3) Protection of occupants of the bus against injury resulting

from the falling or displacement of articles transported in the bus.

Sec. 392.9b [Removed and Reserved]

29. Section 392.9b, Hearing aid to be worn, is removed and

reserved.

30. Section 392.10, Railroad grade crossings; stopping required, is

amended by revising paragraph (b) to read as follows:

Sec. 392.10 Railroad grade crossings; stopping required.

* * * * *

(b) A stop need not be made at:

(1) A railroad grade crossing with an active warning device. For

the purposes of this section, an active warning device includes a

functioning highway traffic signal, gate, or a device that uses sound

or light(s) to warn drivers of an approaching train;

(2) A railroad grade crossing when a police officer or crossing

flagman directs traffic to proceed;

(3) 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;

[[Page 3869]]

(4) An abandoned railroad grade crossing which is marked with a

sign indicating that the rail line is abandoned;

(5) An industrial or spur line railroad grade crossing marked with

a sign reading ``Exempt.'' Such ``Exempt'' signs shall be erected only

by or with the consent of the appropriate State or local authority.

Sec. 392.13 [Removed and Reserved]

31. Section 392.13, Drawbridges; slowing down of commercial motor

vehicles, is removed and reserved.

Sec. 392.14 [Removed and Reserved]

32. Section 392.14, Hazardous conditions; extreme caution, is

removed and reserved.

Sec. 392.15 [Removed and Reserved]

33. Section 392.15, Required and prohibited use of turn signals, is

removed and reserved.

Sec. 392.20 [Removed and Reserved]

34. Section 392.20, Unattended commercial motor vehicles;

precautions, is removed and reserved.

35. Section 392.22 is amended by revising paragraph (b)(1) to read

as follows:

Sec. 392.22 Emergency signals; stopped commercial motor vehicles.

* * * * *

(b) Placement of warning devices--

(1) General rule. Except as provided in paragraph (b)(2) of this

section, whenever a commercial motor vehicle is stopped upon the

traveled portion or the shoulder of a highway for any cause other than

necessary traffic stops, the driver shall as soon as possible, but in

any event within 10 minutes, place the warning devices required by

Sec. 393.95 of this subchapter, in the following manner:

(i) One on the traffic side of and approximately 3 meters (10 feet

or 4 paces) from the stopped commercial motor vehicle in the direction

of approaching traffic;

(ii) One at approximately 30 meters (100 feet or 40 paces) from the

stopped commercial motor vehicle in the center of the traffic lane or

shoulder occupied by the commercial motor vehicle and in the direction

of approaching traffic; and

(iii) One at approximately 30 meters (100 feet or 40 paces) from

the stopped commercial motor vehicle in the center of the traffic lane

or shoulder occupied by the commercial motor vehicle and in the

direction away from approaching traffic.

* * * * *

Sec. 392.25 [Removed and Reserved]

36. Section 392.25, Emergency signals; dangerous cargoes, is

removed and reserved.

Sec. 392.42 [Removed and Reserved]

37. Section 392.42, Notification of license revocation, is removed

and reserved.

Sec. 392.51 [Removed and Reserved]

38. Section 392.51, Reserve fuel, is removed and reserved.

Sec. 392.52 [Removed and Reserved]

39. Section 392.52, Buses; fueling, is removed and reserved.

40. Section 392.62 is added to read as follows:

Sec. 392.62 Driving of buses, standee line or bar.

No person shall drive a bus and a motor carrier shall not require

or permit a person to drive a bus unless all standees on the bus are

rearward of the standee line or other means prescribed in Sec. 393.90

of this subchapter.

Sec. 392.68 [Removed and Reserved]

41. Section 392.68, Motive power not to be disengaged, is removed

and reserved.

PART 395--HOURS OF SERVICE OF DRIVERS

42. The authority citation for part 395 continues to read as

follows:

Authority: 49 U.S.C. 31133, 31136, and 31502; sec. 345, Pub.L.

104-59, 109 Stat. 568, 613; and 49 CFR 1.48.

Sec. 395.1 [Amended]

43. Section 395.1 is amended by removing paragraph (g) and

redesignating paragraphs (h) through (k) to read as (g) through (j),

respectively.

Sec. 395.2 [Amended]

44. In Sec. 395.2, the definition of on duty time is revised to

read as follows:

Sec. 395.2 Definitions.

* * * * *

On duty time means all time from the time a driver begins to work

or is required to be in readiness to work until the time he/she is

relieved from work and all responsibility for performing work. On duty

time shall include:

(1) All time at a plant, terminal, facility, or other property of a

motor carrier or shipper, or on any public property, waiting to be

dispatched, unless the driver has been relieved from duty by the motor

carrier;

(2) All time inspecting, servicing, or conditioning any commercial

motor vehicle at any time;

(3) All driving time as defined in the term driving time;

(4) All time, other than driving time, in or upon any commercial

motor vehicle except time spent resting in a sleeper berth;

(5) All time loading or unloading a commercial motor vehicle,

supervising, or assisting in the loading or unloading, attending a

commercial motor vehicle being loaded or unloaded, remaining in

readiness to operate the commercial motor vehicle, or in giving or

receiving receipts for shipments loaded or unloaded;

(6) All time repairing, obtaining assistance, or remaining in

attendance upon a disabled commercial motor vehicle;

(7) All time spent providing a breath sample or urine specimen,

including travel time to and from the collection site, in order to

comply with the random, reasonable suspicion, post-crash, or follow-up

testing required by part 382 or part 391, subpart H, of this

subchapter, whichever is applicable, when directed by a motor carrier;

(8) Performing any other work in the capacity of, or in the employ

or service of, a motor carrier; and

(9) Performing any compensated work for person who is not a motor

carrier.

* * * * *

45. Section 395.8 is amended by revising paragraph (k)(1) to read

as follows:

Sec. 395.8 Driver's record of duty status.

* * * * *

(k) Retention of driver's record of duty status. (1) Each motor

carrier shall maintain records of duty status and all supporting

documents for each driver it employs for a period of six months from

the date of receipt.

* * * * *

PART 396--INSPECTION, REPAIR, AND MAINTENANCE

46. The authority citation for part 396 continues to read as

follows:

Authority: 49 U.S.C. 31133, 31136, and 31502; and 49 CFR 1.48.

47. Section 396.11 is amended by revising paragraphs (b), (c), and

(d) to read as follows:

Sec. 396.11 Driver vehicle inspection report(s).

* * * * *

(b) Report content. The report shall identify the vehicle and list

any defect or deficiency discovered by or reported to the driver which

would affect the safety of operation of the vehicle or result in its

mechanical breakdown. If no defect or deficiency is discovered by or

reported to the driver, the report shall so indicate. In all instances,

the driver

[[Page 3870]]

shall sign the report. On two-driver operations, only one driver needs

to sign the driver vehicle inspection report, provided both drivers

agree as to the defects or deficiencies identified. If a driver

operates more than one vehicle during the day, a report shall be

prepared for each vehicle operated.

(c) Corrective action. Prior to requiring or permitting a driver to

operate a vehicle, every motor carrier or its agent shall repair any

defect or deficiency listed on the driver vehicle inspection report

which would be likely to affect the safety of operation of the vehicle.

(1) Every motor carrier or its agent shall certify on a driver

vehicle inspection report which lists any defect or deficiency that the

defect or deficiency has been repaired or that repair is unnecessary

before the vehicle is operated again.

(2) Every motor carrier shall maintain the driver vehicle

inspection report and the certification of repairs for three months

from the date the written report was prepared.

(d) Exceptions. The rules in this section shall not apply to a

private motor carrier of passengers (nonbusiness), a driveaway-towaway

operation, or any motor carrier operating only one commercial motor

vehicle.

48. Section 396.13 is amended by revising paragraph (b) to read as

follows:

Sec. 396.13 Driver inspection.

* * * * *

(b) Review the last driver vehicle inspection report; and

* * * * *

PART 397--TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND

PARKING RULES

49. The authority citation for part 397 continues to read as

follows:

Authority: 49 U.S.C. 322; 49 CFR 1.48. Subpart A also issued

under 49 U.S.C. 31136, 31502. Subparts C, D, and E also issued under

49 U.S.C. 5112, 5125.

50. Section 397.19 is amended by revising paragraph (b) to read as

follows:

Sec. 397.19 Instructions and documents.

* * * * *

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

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

shall maintain the receipt for a period of one year from the date of

signature.

* * * * *

[FR Doc. 97-1501 Filed 1-24-97; 8:45 am]

BILLING CODE 4910-22-P