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. FHWA-97-2328; 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: Final rule.

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SUMMARY: The FHWA is adopting a final rule to remove, amend, and

redesignate certain provisions of the Federal Motor Carrier Safety

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. The agency considers many of these regulations to

be obsolete, redundant, unnecessary, ineffective, or burdensome. Others

are 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.

EFFECTIVE DATE: July 20, 1998.

FOR FURTHER INFORMATION CONTACT: Ms. Deborah M. Freund, Office of Motor

Carrier Research and Standards, (202) 366-4009, 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 20590-0001. Office hours are from 7:45 a.m. to 4:15

p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

As part of its Zero Base Regulatory Review Program, the FHWA

published a notice of proposed rulemaking in the Federal Register on

January 27, 1997 (62 FR 3855) to request comment on an extensive list

of changes proposed concerning Parts 387, 390, 391, 392, 395, 396, and

397 of the Federal Motor Carrier Safety Regulations (FMCSRs). The

agency had implemented an earlier set of changes to the FMCSRs on

November 23, 1994 (59 FR 60319) after receiving comments to a notice of

proposed rulemaking published on January 10, 1994 (59 FR 1366). The

agency had also published a final rule on July 28, 1995 (60 FR 38739)

making technical corrections to keep the FMCSRs accurate and up to

date.

Discussion of Comments

The FHWA extended the comment period for the NPRM on March 27, 1997

(62 FR 14662). Comments to the docket were accepted through May 12,

1997.

Comments were received from 55 organizations, companies, and

individuals as follows:

Ten States (State of California Business, Transportation, and

Housing Agency; Colorado Department of Public

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Safety; State of Connecticut; Delaware Department of Public Safety;

State of Idaho Transportation Department; State of Missouri Department

of Revenue and Department of Economic Development; North Dakota

Department of Transportation; Commonwealth of Pennsylvania; Vermont

Department of Motor Vehicles; Wisconsin Department of Transportation);

and one city (City of Littleton, Colorado);

Five power utilities operating commercial motor vehicles (Alabama

Power, Duquesne Light Company, Houston Lighting and Power, Southern

Company Services, Inc., Virginia Power);

Six manufacturers and distributors of explosives (Austin Powder

Company, Viking Explosives and Supply, Inc., Dyno Nobel, Inc., the

Ensign-Bickford Company, Maynes Explosives Company, Sierra Chemical

Company);

Two professional associations of the explosives industry (Institute

of Makers of Explosives, International Society of Explosives

Engineers);

Four consumer and safety advocacy groups (Advocates for Highway and

Auto Safety, Transportation Consumer Protection Council, Inc., New York

Operation Lifesaver, Operation Lifesaver, Inc.);

Four freight railroads and commuter rail lines (CSX Transportation,

Louisiana Railroads, Metra (Northeast Illinois Regional Commuter

Railroad Corporation), Vermont Railroad/Clarendon and Pittsford);

Nine transportation industry associations (American Bus Association

(ABA), American Trucking Associations (ATA), Association of American

Railroads (AAR), Association of Waste Hazardous Materials Transporters

(AWHMT), Distribution and LTL Carriers Association, National Automobile

Dealers Association (NADA), National School Transportation Association

(NSTA), National Tank Truck Carriers, Inc. (NTTC), Petroleum Marketers

Association of America (PMAA));

Four drivers' organizations, labor unions, and other professional

organizations (Brotherhood of Locomotive Engineers, International

Association of Fire Fighters, Owner-Operator Independent Drivers

Association, United Transportation Union);

Three motor carriers (Air Products and Chemicals, Ameritech, Radian

International);

Two firms providing services to motor carriers (Consolidated Safety

Services, Inc., DAC Services);

Three government agencies and associations of government

organizations (American Association of Motor Vehicle Administrators,

National Road Transport Commission of Australia, National

Transportation Safety Board); and

Two individuals (Hoy Richards, Richards and Associates; O. Bruce

Bugg).

Section 387.5, Definitions [Transportation of Property]

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

Secretary of Transportation is required to set forth regulations to

require minimum levels of financial responsibility for the

transportation of property for compensation by motor vehicles in

interstate commerce. The FHWA proposed to amend the definitions in

Sec. 387.5 to make clear that for-hire transportation--transportation

for compensation--included transportation by contract, common, and

exempt motor carriers of property.

The Transportation Consumer Protection Council (TCPC) noted that,

although the ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat.

803) eliminated the distinction between ``common'' and ``contract''

motor carriers, the terms still appear in proposed text of revised

FMCSR sections. The TCPC also pointed out what it believed were errors

in some citations.

The Owner-Operator Independent Drivers Association (OOIDA)

supported the revision of the definition of ``motor carrier'' and

suggested the elimination of the distinction between ``motor common

carrier'' and ``motor contract carrier.''

The National Automobile Dealers Association (NADA) suggested that

the preamble of the final rule include several examples of

transportation involving a variety of facts and circumstances.

The Association of Waste Hazardous Materials Transporters (AWHMT)

favored the proposed revision to eliminate what it viewed as obsolete

definitions. Although the AWHMT agreed that transporters of hazardous

materials should be subject to the financial responsibility provisions

of part 387, it referenced a 1982 Interstate Commerce Commission (ICC)

ruling that hazardous waste destined for disposal was not considered

``property.'' The AWHMT recommended that the ``property'' definition in

part 387 include ``a motor vehicle with a gross vehicle weight rating

of 10,000 pounds or more in interstate or foreign commerce.''

The OOIDA recommended eliminating the distinction between

``exempt'' and ``non-exempt'' commodities. The OOIDA holds that the

economic regulations forming the basis for the definitions no longer

exist at the Federal level. The OOIDA asserts that some States will not

alter their regulations, and will continue to require duplicate

registrations and separate insurance coverages until the definitions

are changed through Federal regulation.

FHWA Response

The FHWA plans to address the definitional issue of for-hire motor

carriers of property in detail in the context of future rulemakings

addressing the commercial regulation of motor carriers. Responsibility

for these regulations was transferred from the ICC to the DOT under the

provisions of the ICC Termination Act of 1995.

The definition of ``motor carrier'' is revised to make it

consistent with the definition as it appears in Sec. 390.5. The terse

definition proposed in the NPRM did not include the agents, officers

and representatives of the motor carrier, nor its employees responsible

for driver or vehicle safety.

As for the AWHMT's concern, the FHWA used the term ``property'' to

differentiate between two types of transportation--non-passengers and

passengers. The merits of using other terms, such as ``goods'' or

``commodities'' as a substitute for the ``property'' could be debated.

However, the term ``property'' is of longstanding use and is clearly

understood to imply non-passenger transportation. In this context, the

term also includes transportation of refuse and hazardous materials

waste.

Section 387.27(b)(4), Exceptions to Applicability [School Bus

Transportation]

The American Bus Association (ABA) suggested using the term ``for-

hire carrier under contract'' rather than ``contract motor carrier'' to

be consistent with other definitions in part 387, Sec. 387.27(b)(4).

The ABA also recommended that the ``extracurricular'' trips envisioned

in the proposal have some preponderant educational purpose to qualify

for the exemption from the minimum financial responsibility

requirements. The ABA expressed concern that school districts could

contract to transport students to amusement parks or other non-

educational destinations, without any insurance coverage for the

passengers or the public.

[[Page 33256]]

FHWA Response

This revision adopted today is consistent with an interpretation

issued on April 4, 1997 (62 FR 16370, at 16403) as part of the

Regulatory Guidance for the Federal Motor Carrier Safety Regulations.

It is also consistent with Congressional intent. In certain instances,

motor carriers providing school bus transportation are not subject to

the Bus Regulatory Reform Act of 1982 and the minimum financial

responsibility requirements (part 387) issued under this Act (49 U.S.C.

31138(e)(1)). Transportation of school children and teachers that is

organized, sponsored, and paid for by the school district is not

subject to part 387 (49 CFR 387.27(b)(1)). Therefore, school bus

contractors are not subject to the Federal financial responsibility

requirements for interstate trips such as sporting events and class

trips, but they must comply with all other requirements of the FMCSRs.

They would, however, be subject to State financial responsibility

requirements.

In today's final rule, the term ``contract motor carrier'' replaces

``motor carrier under contract.'' In all other respects, the final rule

uses the language proposed in the NPRM.

Section 387.29, Definition, ``For-Hire Carriage'' [Passenger

Transportation]

The FHWA proposed to amend this definition to codify regulatory

guidance issued on November 17, 1993 (58 FR 60734) and slightly revised

on April 4, 1997 (62 FR 16370, at 16406-16407). This guidance made

clear the intent of the definition to cover transportation: (1)

generally available to the public and (2) performed for a commercial

purpose by a motor carrier who receives compensation for the

transportation service.

The ABA believed there may be some confusion about the concept

``generally available to the public.'' It pointed out that many bus

service contracts might not in fact be available to the general public.

An example of this would be a contract with a corporation to transport

employees between the corporation's facilities. The ABA noted that the

FHWA still issues permits for motor contract carriers of passengers.

The ABA recommended that the term be defined to include motor contract

carriage operations.

FHWA Response

The FHWA is adopting a more direct definition than that proposed in

the NPRM: ``For-hire motor carrier of passengers means a person engaged

in the business of transporting, for compensation, passengers and their

property, including any compensated transportation of the goods or

property of another.'' This definition more clearly expresses the

FHWA's intent to cover all types of for-hire passenger transportation,

irrespective of the business relationship between the transportation

provider and the customer. Because many motor carriers of passengers

also transport the passengers' property (for example, their luggage),

and, possibly, small packages not accompanying the passengers, the term

``goods or property of another'' is included in the definition.

Section 390.3(f)(2), Accident Register Requirement for Federal, State,

and Local Government Agencies

The FHWA proposed removing the requirement that government agencies

described in this section maintain an accident register for

transportation activities involving interstate charter transportation

of passengers.

The ABA opposed the proposal. It noted that, although governmental

entities are not subject to FHWA compliance reviews, they are

essentially unregulated from a safety standpoint (except for the

commercial drivers license (CDL) and related controlled substance and

alcohol testing regulations). The ABA argued that the FHWA will have no

other means to obtain accident information about this segment of the

charter service population. The ABA asserted that the minimal burden

imposed on the public transit agencies is outweighed by the need to

obtain this information to make informed decisions on regulatory

policies. It added, ``[A]s the Federal Transit Administration continues

to purchase intercity buses for suburban commuter operations, which

buses might also be used for charter operations, this lack of accident

information could be magnified.''

FHWA Response

The FHWA believes government agencies have a strong self-interest

in maintaining safe operations. The fact that they are not subject to

compliance reviews probably does not influence their recordkeeping

practices concerning accidents. Furthermore, any accidents their

vehicles are involved in are a matter of public record, and this

information could be gathered readily if the need arises. Accordingly,

paragraph 390.3(f)(2) is revised as proposed in the NPRM.

Section 390.5, Definitions

Accident

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

road'' in the definition of ``accident.'' The term ``public road'' was

defined to include privately owned roads accessible to the general

public. The intent of the proposed change was to emphasize that the

defining factor is the road's accessibility to the public, rather than

its owner's identity.

Commenters addressing this issue were: the Austin Powder Company

(letters from its Director of Safety and Compliance and another

employee who is Chairman of the American National Standards Institute

A10.7 Standard Committee), Institute of Makers of Explosives (IME),

International Society of Explosives Engineers, Viking Explosives &

Supply, Inc., Dyno Nobel, Inc., Maynes Explosives Company, Sierra

Chemical Company (letters from three officials and a staff engineer),

and the Ensign-Bickford Company.

The commenters were concerned that the proposed revision to the

definition of ``accident,'' and, in particular, the ``public road''

portion of the definition, could require many existing explosive

storage facilities (magazines) to be closed, relocated, or have their

storage capacities reduced. Several commenters noted that many of these

magazines are currently accessed by private roads, or are located near

private roads.

The associations, manufacturers, and users of explosives provided

consistent commentary and background for their positions. The IME first

developed a safety standard to provide protection from explosives

storage sites in 1910. This was done at the request of the Bureau of

Explosives (now part of the Department of the Treasury, Bureau of

Alcohol, Tobacco, and Firearms (ATF)). The standard has been revised

and updated over the years and is currently published as IME Safety

Library Publication No. 2, ``The American Table of Distances.'' This

table is incorporated into the regulations of the Occupational Safety

and Health Administration (OSHA) (29 CFR 1910.109), the ATF (27 CFR

55.11 and 55.218), State regulations, ANSI standards, National Fire

Protection Association standards, Uniform Fire Code, U.S. Army Corps of

Engineers, Building Officials and Code Administrators, Southern

Building Code, and other national safety standards and codes. Most of

the commenters on this issue stated they use ANSI Standard A10.7,

``Commercial Explosives and Blasting Agents--Safety Requirements for

Transportation Storage, Handling, and Use'' to provide

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minimum recommendations for locating explosive storage sites in

reference to inhabited buildings, public highways, and passenger

railways.

The definition of ``highway'' applicable to the American Table of

Distances (29 CFR 1910.109(c)(1)(v), Table H-21) is ``any public

street, public alley, or public road.'' Commenters stated that the

table has never been used to refer to ``private'' roads on construction

sites, distribution sites, and the like. If the definition were to be

changed to include ``private'' roads which may be accessible to the

public, the commenters believed many existing explosive storage

facilities (magazines), currently accessed by private roads, or located

near private roads, may be forced to close or to significantly reduce

their capacity due to quantity/distance restrictions. Several

commenters expressed particular concern with a sentence in the preamble

to the NPRM which stated: ``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 IME noted:

Explosive storage facilities on mining properties, quarrying

operations, and construction projects are accessed by mine and

construction roads or are located in proximity to such roads. These

roads have never been considered ``public roads'' for purposes of

determining quantity/distance separations even though the public may

have access to such roads (it would be a physical impossibility to

fence off the hundreds of square miles on such sites in order to

restrict public accessibility). Although such roads are generally

posted and/or barricaded, experience has shown that even fences and

roving patrols cannot keep the ``public'' in four wheel drive

vehicles, all terrain vehicles (ATVs), snowmobiles, etc. from

traveling the roads, especially during hunting and fishing seasons.

For over eighty years, the term ``public road'' has always been

regarded by the explosives, blasting, mining, quarrying, and

construction industries to mean a road that was constructed,

financed, maintained, and controlled by some political subdivision.

Two commenters asked for clarification concerning the applicability

of the proposed definition to accidents on private property. The

National Automobile Dealers Association (NADA) asked the FHWA to

clarify whether the definition would extend to accidents occurring on

truck dealership properties. The State of Idaho Transportation

Department wished clarification concerning parking lots, garages, and

private roads around stadiums, shopping malls, and similar facilities.

FHWA Response

The FHWA has never intended to expand the definition of ``public

road'' to encompass any roadway only remotely accessible to the public

at large. The agency's intent was to codify an interpretation published

in the April 4, 1997, Regulatory Guidance for the Federal Motor Carrier

Safety Regulations (62 FR 16370, at 16408). That interpretation reads

as follows:

Section 390.5 Definitions

* * * * *

Question 26: What is considered a ``public road''?

Guidance: A public road is any road under the jurisdiction of a

public agency and open to public travel or any road on private property

that is open to public travel.

Many roads performing the identical access functions of ``public

roads'' are, in fact, constructed, operated, and, sometimes, maintained

by non-governmental entities. These entities include shopping center

owners, commercial real estate developers, and homeowners associations.

These roads are nearly always designed, constructed, marked, signed,

and signaled in conformance with national, State, and local guidelines,

regulations, and ordinances. In these times of scarce governmental

resources, commercial and private enterprises are more often being

required to provide the immediate access to their proposed land

developments as a quid pro quo for obtaining a zoning approval and

construction permit for a facility generating personal and vehicular

travel on the surrounding roadway network. In addition, conformity with

design and construction practices is usually a requirement for a local

governmental entity to take over the maintenance of the completed

facility.

Another term, ``Open to public travel,'' found at 23 CFR 460,

clearly expresses the FHWA's intent. The definition reads as follows:

Open to public travel means that the road section is available,

except during scheduled periods, extreme weather or emergency

conditions, passable by four-wheel standard passenger cars, and open to

the general public for use without restrictive gates, prohibitive

signs, or regulation other than restrictions based on size, weight, or

class of registration. Toll plazas of public toll roads are not

considered restrictive gates.

The FHWA believes the definition specifically addresses the IME's

concern because it excludes road sections barricaded or posted.

Another issue is the nature of the storage of commercial

explosives. Footnote 5 to the American Table of Distances reads as

follows:

This table applies only to the manufacture and permanent storage of

commercial explosives. It is not applicable to the transportation of

explosives, or any handling or temporary storage necessary or incident

thereto. It is not intended to apply to bombs, projectiles, or other

heavily encased explosives.

The FHWA believes the IME's and other commenters' concerns about

the potential necessity of relocating explosives magazines may extend

beyond the application of the American Table of Distances. Many

magazines, such as those used in the earthmoving stages of road

construction projects, are temporary storage facilities.

The FHWA is substituting the term ``road open to public travel''

for the term ``public road'' in the definition of ``accident.'' It is

discussed in detail under the heading, ``Highway,'' later in this

document.

The NADA and the State of Idaho Transportation Department asked

about accidents taking place on a truck dealership's property, parking

lots, parking garages, and roads providing access to shopping malls,

stadiums, and similar facilities. If the property is ``open to public

travel,'' a motor carrier would be required to record those accidents

under Sec. 390.15. In general, the FHWA considers the following ungated

facilities to be open to public travel: Customer parking lots, garages

and access roads to malls, stadiums, etc. On the other hand, gated

parking lots, garages, etc., are not open to public travel. The

customer parking areas of a truck dealership are open to the public,

whereas areas of the dealership used to park or store new and used

vehicles prior to sale generally are not.

Commercial Motor Vehicle

The FHWA proposed to revise the definition of commercial motor

vehicle to provide consistent definitions of designed passenger

capacity and transportation of hazardous materials in Secs. 383.5 and

390.5. The FHWA received no comments on this element of the proposal.

The definition is, therefore, revised as proposed in the NPRM, with

two minor changes. The first change deletes the modifying term

``public'' (as in ``public highway'') because the term ``highway'' is

now defined and added to the definitions. The second change deletes the

Code of Federal Regulations citation for the Hazardous Materials

Regulations because the FHWA believes the motor

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carriers subject to these regulations are well aware of the reference,

and a cross-reference here is superfluous.

Several commenters addressed the issue of the weight threshold for

commercial motor vehicles subject to the FMCSRs. Those comments appear

under ``Comments to FMCSR sections not addressed in the NPRM,'' later

in this document.

Highway

Because of the concern generated by the FHWA's proposal to revise

the use of the term ``public road'' in the definition of ``accident,''

the FHWA is adding the term ``highway'' to the definitions of

Sec. 390.5. This definition builds upon the definition in Section 1-127

of the ``Uniform Vehicle Code and Model Traffic Ordinance'' (UVCMTO),

1992 Edition, published by the National Committee on Uniform Traffic

Laws and Ordinances in Evanston, Illinois, which reads as follows:

Sec. 1-127--Highway.--The entire width between the boundary

lines of every way publicly maintained when any part thereof is open

to the use of the public for purposes of vehicular travel (emphasis

added).

The FHWA has modified this definition and added it to those

proposed in the NPRM: Highway means any road, street, or way, whether

on public or private property, open to public travel. ``Open to public

travel,'' as defined at 23 CFR 460.2, will be incorporated in this

definition.

The key difference between the Uniform Vehicle Code definition and

the definition the FHWA is adopting is the public-use nature of the

facility, rather than its ownership or maintenance.

Intermittent, Casual, or Occasional Driver

Section 391.63 contains a limited exemption from certain driver

qualification requirements for an ``intermittent, casual, or occasional

driver.'' This term is defined in Sec. 390.5 as a driver, who in any

period of 7 consecutive days, is employed by more than a single motor

carrier. Section 390.5 also defines a ``regularly employed driver'' as

a driver employed or used solely by a single motor carrier in any

period of 7 consecutive days. The FHWA proposed to replace the term

``intermittent, casual, or occasional driver'' with the term

``multiple-employer driver'' to clarify both definitions.

Radian International LLC (Radian) is concerned that the proposed

term ``multi-employer driver'' would drastically alter the meaning of

the current definition and eliminate the relief from certain

recordkeeping requirements it provides. Radian, an environmental

engineering firm, occasionally requires its employees to drive a

company-owned commercial motor vehicle (CMV) with a gross vehicle

weight rating (GVWR) of more than 10,000 pounds (4,545 kilograms) to

test sites. It cited a letter of interpretation issued by the Office of

Motor Carrier Standards on October 2, 1992, advising that its drivers

were intermittent, casual, or occasional in this situation and that

Secs. 391.63 and 395.8(j)(2) of the FMCSRs would be applicable to

Radian's situation.

FHWA Response

The FHWA has reassessed the 1992 letter of interpretation and now

believes it was erroneous. 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 drive a CMV only intermittently

or occasionally. Radian provided no information at the time the

interpretation was requested to support classification of its employees

as anything other than ``regularly employed drivers,'' unless they

drive CMVs for other motor carriers during any period of 7 consecutive

days. The fact that these employees may only occasionally drive CMVs as

part of their assigned duties does not change this fact. No other

commenter challenged the revision to the definition, and it is being

adopted as proposed. The 1992 letter of interpretation is therefore

overruled. The administrative adjustments Radian must make are not

arduous. Potentially, they can provide Radian with additional assurance

of the safe driving records of its employees.

The FHWA will delete the second sentence of the definition proposed

in the NPRM, referencing the qualifications of these drivers. Under

Subpart G, Limited Exemptions, Secs. 391.63 and 391.65 provide clear

guidance to the exemptions for multiple-employer drivers and drivers

furnished by other motor carriers.

The term ``single-employer driver'' replaces the term ``regularly-

employed driver'' as proposed in the NPRM.

Interstate Commerce

The FHWA proposed to revise the definition of interstate commerce

to clarify that transportation within a single State is considered

interstate commerce if this transportation continues a through movement

originating outside the State, or has a destination outside the State.

The Advocates for Highway and Auto Safety (AHAS) stated its strong

support of the proposal to clarify the definition. The NTTC advised the

FHWA to coordinate with the Research and Special Programs

Administration on jurisdictional questions of interstate/intrastate

hazardous materials transportation, and particularly recommended that

the FHWA review the comprehensive HM-223 and HM-200 rulemakings

concerning operation of non-specification cargo tank motor vehicles.

The Distribution and LTL Carriers Association (LTL) recommended

that paragraph (3) of the definition be revised to read: ``Between two

places in a State as part of trade, traffic, or transportation which

has originated from outside the State or is destined by the shipper to

go outside the State.''

In a related comment, the AHAS requested the FHWA to address

``commercial vehicle axle and gross weight limits for trucks operating

wholly intrastate but engaging in transport that is interstate in

character, hours of service requirements that diverge from the federal

standards of 23 CFR Pt. 395 [sic], and States that establish overall

length limits for trucks as viewed within the limitations and

grandfathering provisions of 49 U.S.C. Sec. 31111(b). We do not regard

the interpretation of these and a number of other topics as obvious

when certain intrastate commercial movements are denominated

interstate.'' The AHAS did not explain how it defined ``transport that

is interstate in character.''

FHWA Response

Although the LTL's suggested revision does not cover international

movements, it is otherwise more concrete than the proposed definition.

The agency therefore adopts a revised version of the LTL's suggested

wording.

With respect to the NTTC's recommendation, the FHWA continues to

work very closely with the RSPA on technical, jurisdictional, and

programmatic issues related to all hazardous materials rulemaking

actions.

The concerns of the AHAS about weights and dimensions of CMVs

operating in interstate commerce are beyond the scope of this

rulemaking, but we will forward them to the offices responsible for

implementing the CMV size and weight regulations.

Principal Place of Business

The FHWA proposed to amend this definition to mean a single

location where records required by parts 382, 387, 390, 391, 395, 396,

and 397 of the FMCSRs will be made available for inspection within 48

hours after a request has been made by a special

[[Page 33259]]

agent or authorized representative of the FHWA. Because the definition

is revised to accompany a new Sec. 390.29, comments are summarized

under the heading for that section.

Regularly Employed Driver

Section 390.5 defines a ``regularly employed driver'' as a driver

employed or used solely by a single motor carrier in any period of 7

consecutive days. The FHWA proposed to replace this term with ``single

employer driver'' to make it more consistent with the intended meaning.

The FHWA received no comments on this item and it will be revised

as proposed in the NPRM.

Section 390.29, Location of Records or Documents

The FHWA proposed 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 location

within 48 hours after a request has been made by a special agent or

authorized representative of the FHWA.

In regulatory guidance issued on November 17, 1993 [58 FR 60734],

the FHWA allowed inspection, repair, and maintenance records required

under part 396 to be maintained at a location of the motor carrier's

choice, but required the motor carrier to make them available within

two business days upon the FHWA's request. The revised definition of

the principal place of business, and the new Sec. 390.29, extend these

recordkeeping allowances and provisions to all records required under

parts 382, 387, 390, 391, 395, 396, and 397. The change proposed will

provide motor carriers with increased flexibility in complying with

recordkeeping requirements of the FMCSRs.

Houston Lighting and Power Company (Houston L&P), Distribution and

LTL Carriers Association, ABA, and the National Automobile Dealers

Association (NADA) supported the proposed revision.

National Tank Truck Carriers, Inc., a trade association of motor

carriers specializing in cargo tank transportation, requested that the

FHWA codify regulations concerning the retention of ``electronic''

records.

FHWA Response

The definition of ``Principal place of business'' in Sec. 390.5 is

revised as proposed in the NPRM with one minor addition. The NPRM

language at 62 FR 3866 inadvertently omitted the reference to part 397

in the proposed rule, although it was mentioned in the preamble. It is

included in today's rule.

The new Sec. 390.29 is added as proposed in the NPRM, but with the

phrase ``principal place of business'' added to clarify that a motor

carrier may maintain records or documents at a headquarters location.

The FHWA will address the specific issue of electronic

recordkeeping and information transmission in separate future

rulemakings on the subject of supporting documents and other types of

records.

Section 391.11, Qualifications of Drivers

The heading for Sec. 391.11 is changed from ``Qualifications of

drivers'' to ``General qualifications of drivers.'' Although this was

not presented for comment in the NPRM, the FHWA believes there is good

cause for this minor revision to the title of this section. The title

more appropriately reflects the coverage of the section--basic

qualifications, of a general nature, for CMV drivers.

Sections 391.11(b)(4) and (b)(5), Determining Proper Securement of

Cargo

The FHWA proposed to delete these provisions from the driver

qualifications section of the FMCSRs. The FHWA reasoned they were

redundant because Secs. 383.111(d) and 392.9(a) address the topic of a

driver's knowledge and experience relating to proper securement of

cargo.

Although no commenters addressed the proposal to delete these

provisions, the FHWA has determined there is good cause to retain them

because they pertain to the general qualifications of CMV drivers. An

essential element of safe operations is a driver's ability to determine

whether cargo is properly secured and to secure cargo himself/herself,

and for motor carriers to assure themselves that their drivers have the

necessary knowledge and skills to carry out these tasks. The paragraphs

clearly complement the provisions of Secs. 392.9 and 383.111(d).

The ability of a driver to determine the proper location,

distribution, and securement is clearly a skill that is learned through

instruction and experience. A driver might arrive at a new job without

specific experience in handling a particular type of cargo, but be well

qualified in other respects. The FHWA believes that skills and practice

in safe cargo handling are more appropriately categorized as

responsibilities, rather than ``qualifications.'' For that reason,

these requirements will be placed under a new heading, Responsibilities

of drivers, Sec. 391.13.

Section 391.11(b)(7), Jurisdiction Issuing a Commercial Motor Vehicle

Operator's License

The State of Idaho Transportation Department (Idaho) requested the

FHWA to consider specifying that the currently-valid operator's license

be issued by the driver's State or jurisdiction of domicile, rather

than ``from one State or jurisdiction.'' Idaho reasoned this would be

consistent with the definition of ``State of domicile'' used for the

CDL in Sec. 383.5 and the driver application procedures for transfer of

a CDL in Sec. 383.71(b).

FHWA Response

The FHWA acknowledges Idaho's comment concerning the desirability

of consistent requirements for CMV drivers required to hold a CDL and

CMV drivers required to hold an operator's license. The FHWA raised the

issue of a driver's domicile in its 1990 NPRM concerning learner's

permits for drivers seeking to obtain a CDL (55 FR 34478, August 22,

1990). The FHWA raised the issue of the domicile requirement in

existing CDL regulations and their impact on drivers wishing to acquire

commercial driver training in preparation for obtaining a CDL. The FHWA

received a number of comments, filed under FHWA Docket Number MC-90-10

(now Department of Transportation Docket FHWA-97-2181). The issue of

how best to deal with the definition of jurisdiction of licensure is

still ongoing. The FHWA will address this issue in future rulemaking

actions.

Because Secs. 391.11(b)(4) and (b)(5) are redesignated as

Secs. 391.13(a) and (b), this paragraph is redesignated as (b)(5) and

reads: ``Has a currently valid commercial motor vehicle operator's

license issued only by one State or jurisdiction.''

Section 391.11(b)(10), Road Test

The FHWA proposed to delete all requirements related to the road

test contained in subpart D, Secs. 391.31 and 391.33. Therefore, this

section, cross-referencing the road test provisions, was proposed to be

deleted as well. The FHWA reasoned the road test requirement was

redundant for driver applicants required to possess a CDL or who

successfully completed a road test as part of the process of obtaining

another type of license or as required by an employer. Additional

discussion may be found under the heading for Section 391.31 later in

this document.

The FHWA has determined that it is in the best interests of safety

to retain

[[Page 33260]]

Sec. 391.31 and to revise Sec. 391.33. The background of the proposed

change, the summary of docket comments, and the FHWA's response are

detailed under the headings for Secs. 391.31 and 391.33. This section

is retained and redesignated as Sec. 391.11(b)(8).

Section 391.11(b)(11), Application for Employment

The FHWA proposed to remove the section requiring a commercial

motor vehicle driver to furnish the employing motor carrier with an

application for employment in accordance with Sec. 391.21. The agency

reasoned that the completion and furnishing of an employment

application are not driver qualification standards as such. However,

they are necessary and important actions to evaluate the competence of

applicants for CMV driver positions, and they are addressed in

Sec. 391.21.

The ATA opposed the removal of this provision. It stated,

``Completion of an application for employment is fundamental to the

process of selecting safe CMV drivers since the beginning of structured

safety programming and was published as a trucking industry safety

standard in 1939, 12 years before it was incorporated into the

FMCSRs.'' The ATA believed the deletion of the paragraph would prevent

motor carriers from gathering information to determine applicants'

qualifications in accordance with Sec. 391.21.

FHWA response

A driver's application for employment is not a ``qualification''

per se. The revised heading of Sec. 391.11 as ``General

qualifications'' clarifies the intent to include performance-oriented

qualifications. An application for employment is simply a presentation

of a document. The FHWA is not revising or removing Sec. 391.21,

Application for employment. As stated in the preamble to the NPRM, the

action of removing Sec. 391.11(b)(11) is not intended to affect the

responsibility of CMV drivers to complete and furnish the motor carrier

considering hiring them with employment applications containing certain

information required by Sec. 391.21.

Accordingly, Sec. 391.11(b)(11) is removed as proposed in the NPRM.

Section 391.13, Responsibilities of Drivers

The FHWA proposed to delete Secs. 391.11(b)(4) and (b)(5)

concerning a CMV driver's knowledge and experience with methods and

procedures for location, distribution, and securement of cargo. The

FHWA has determined it is in the best interests of safety to retain

those sections, as discussed above. A new Sec. 391.13 will be added to

the FMCSRs, and the provisions will be redesignated to appear under

that heading.

Section 391.15(b), Disqualification for Loss of Driving Privileges

The FHWA proposed to redesignate Sec. 392.42 as Sec. 391.15(b)(2)

and to title the paragraph ``Loss of driving privileges.'' The

provision 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 the employing motor carrier before the end of the

business day following the day the driver received the notice. The FHWA

believed the notification requirement would be more appropriately

included in Sec. 391.15 because it specifically addresses the

disqualification of drivers, rather than general requirements for safe

driving.

The FHWA also requested State driver licensing agencies to comment

on whether they send 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. The FHWA sought

information to determine if Sec. 391.15(b) should be revised to exempt

a driver from the requirement to notify his/her employing motor carrier

if a State licensing agency sends written notification to the motor

carrier in the event the driver's license was revoked, suspended, or

withdrawn. The FHWA received many comments on this speculative

proposal. Because they were requested under the heading of Sec. 392.42

in the NPRM, they are summarized under that heading in this preamble.

The State of Idaho recommended an additional revision to this

section. Idaho recommended adding a CMV driver's refusal to undergo

controlled substance testing as a disqualifying offense, noting that

``Based on current regulations, a CDL driver cannot be disqualified for

refusing to undergo a controlled substance test.''

FHWA Response

The agency is revising Sec. 391.15(b) as proposed in the NPRM. The

section contains general provisions to require a driver notified that a

temporary or permanent limitation has been placed on his/her CMV

driving privilege to inform the employing motor carrier of this event.

Because of continuing discussions regarding how to treat loss-of-

privilege from a jurisdiction other than the one that issued a license

to a driver, the FHWA has determined it is appropriate to retain the

current title ``Disqualification for loss of driving privileges.'' Any

proposals concerning loss-of-privilege actions imposed by the non-

licensing jurisdiction will be addressed in a future rulemaking action.

The FHWA has determined it is not appropriate at this time to

change the FMCSRs to require State licensing agencies to notify motor

carrier employers of licensing actions taken against drivers. Placing

the primary burden on the State licensing agencies to notify employers

of drivers' disqualifications would create a significant unfunded

mandate. The requirement would also be a difficult, if not impossible,

undertaking for most States due to the high turnover rate of commercial

motor vehicle drivers.

As for Idaho's comments, the intent of the current Sec. 392.42 is

to require the driver to inform the motor carrier of notifications

received from State or local licensing or law enforcement agencies. In

the case of a controlled substance test administered by a police

officer, a driver's refusal to test would be covered by the appropriate

State or local laws, and the driver would be required to inform the

motor carrier of any adverse license actions related to the event.

On the other hand, Idaho's belief that ``a CDL driver cannot be

disqualified for refusing a controlled substance test'' is not entirely

accurate. The disqualifying offenses under Sec. 391.15(c)(2), which

have not been proposed for revision here, include driving a CMV under

the influence of a Schedule I drug or other substance identified in 21

CFR 1308 [Schedule of Controlled Substances]. If the driver refused to

take a controlled-substance test under the provisions of 49 CFR part

382, the refusal generates the same consequences as a positive test.

The statute (49 U.S.C. 31306) requires a motor carrier to test its

drivers under certain circumstances under regulations promulgated by

the FHWA. One of these circumstances is a driver's refusal to comply

with the statute. If the driver does not comply, he or she must not

operate a CMV, and the motor carrier must not permit or require the

driver to do so until the provisions of Secs. 382.503 and 382.309 have

been met through Substance Abuse Professional (SAP) evaluation and the

return-to-duty testing process. This means the driver must take an

actual test to be allowed to resume driving duties in interstate

commerce. In addition, the driver may be subject to his or her

employer's policy actions.

In sum, controlled-substance and alcohol tests administered by an

employer do not fall under State laws.

[[Page 33261]]

The employer is responsible for taking the appropriate actions in

accordance with the FMCSRs and with company policy. The FHWA's

regulations consider a driver's refusal to submit to testing a

prohibited practice. If a driver refuses to undergo a test, the motor

carrier must prohibit the driver from driving a CMV and must provide

the driver with names, addresses, and telephone numbers of substance

abuse professionals.

The FHWA also believes it is inappropriate to equate a driver's

refusal to test or a positive test result under part 382 as equivalent

to a criminal conviction for driving under the influence of a

controlled substance. Criminal convictions of this nature are generally

based upon a law enforcement officer's determination that probable

cause existed to require a test and an arrest under his/her

jurisdiction's policies. The criminal process also generally allows a

driver more due process rights to contest the arrest and positive test

result because the driver's license privilege is in jeopardy.

The FHWA is reviewing regulations and guidance concerning

controlled-substance and alcohol tests administered by law-enforcement

officials. The agency will address these issues in a separate

rulemaking.

Section 391.25, Annual Review of Driving Record

The FHWA proposed to revise this section to replace the annual

review of a driver's driving record with a specific requirement to make

an inquiry to the appropriate agency of every State in which the driver

held a CMV operator's license or permit during the time period.

DAC Services (DAC), a consumer reporting agency and a major

provider of automated driver screening services, favored the proposed

revision. However, DAC was concerned that the proposed language could

be interpreted to prohibit third-party firms from obtaining records on

behalf of motor carriers. DAC noted that the FHWA field staff

occasionally question whether the information obtained through DAC can

be used to satisfy a motor carrier's compliance with Sec. 391.23,

Investigation and inquiries. DAC recommended changing the proposed

revision explicitly to recognize the role of third-party information

services:

Sec. 391.25(a) Except as provided in subpart G of this part,

each motor carrier shall, at least once every 12 months, make, or

cause to be made by or through its agent, 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.

DAC also requested the FHWA add ``or its agent on the motor

carrier's behalf,'' before the words ``shall make the following

investigations and inquiries * * *'' in Sec. 391.23.

The Delaware Department of Public Safety favored the proposed

change while noting that expanded direct communications between motor

carriers and State agencies will likely increase its workload. Taking

another point of view, Duquesne Light Company's Nuclear Power Division

believed the current requirements are sufficient, and implementing the

proposed rule change would place an additional administrative burden on

companies.

FHWA Response

The FHWA is amending Sec. 391.25 as proposed in the NPRM with a

minor editorial change. The language will be edited to clarify the

requirement for the motor carrier to maintain a copy of the responses

from each State agency to the inquiry concerning drivers' records. The

motor carrier must maintain these responses regardless of their

content.

In response to DAC's comment, the definition of ``motor carrier''

in Sec. 390.5 specifically includes the motor carriers agents,

officers, and representatives. Since third-party firms providing

reporting and other services to a motor carrier act as the motor

carrier's agents, they are already included in the definition of those

entities who are authorized to obtain records on behalf of motor

carriers.

In response to the Duquesne Light Company's concern, the

requirement to make inquiries with each jurisdiction where the driver

held a CMV operator's license or permit during the past year is

intended to consider the documented recordkeeping practices of

licensing jurisdictions, some of which remove data on drivers'

convictions for various reasons.

However, as the Delaware Department of Public Safety pointed out,

there are well-founded concerns about the workload for both the motor

carriers and the DMVs. The time and cost burdens associated with the

annual review of driving records are discussed under the Paperwork

Reduction Act section of the preamble to today's final rule.

Section 391.27, Record of Violations

The FHWA proposed to delete the provision that a motor carrier

require its drivers, at least every 12 months, to prepare and furnish

the motor carrier with a list of all violations of motor vehicle

traffic laws and ordinances (except those violations involving only

parking), of which the driver has been convicted or has forfeited bond

or collateral during that period. The FHWA reasoned that making these

inquiries to State agencies would be a more effective way to gather

this information because it would not rely on the driver's memory or

veracity.

Air Products and Chemicals (Air Products) opposes the proposal to

eliminate the requirement for motor carriers to require its drivers to

furnish a list of traffic violations resulting in convictions. Air

Products' experience has indicated that the information its outside

service obtains from State sources is not always complete or timely--it

lags behind the information drivers provide. Air Products maintains

that States need to improve their collection and transmission of these

data to make them sufficiently reliable to meet the company's needs.

For the present, Air Products continues to check both State records and

drivers' lists.

The ABA supported the proposal as a method of streamlining the

process of inquiring into drivers' records.

The AHAS and the AAMVA both supported the proposal as a more

objective method to gather information, as well as a way to corroborate

information on violations reported by drivers. The AAMVA believed

waiving the requirement for drivers to notify motor carriers is

acceptable in the cases where the State has a mandatory notification

program, but not where the State's program is discretionary.

The ATA forwarded concerns expressed by a motor carrier employing

non-CDL CMV drivers. The motor carrier was concerned that, if

Sec. 391.27 were deleted, a motor carrier could not check information

from a State motor vehicle record (MVR) against any information

reported by its non-CDL drivers.

Vermont DMV Inspector R. Moore recommended making Commercial

Drivers License Information System (CDLIS) inquiries in each State

where a driver has driven during the preceding 12 months. This would

provide a violation record on a national basis for each driver.

The ATA recommended allowing the motor carrier to require a driver

to secure and submit an MVR annually. The ATA also recommend the FHWA

accept evidence that a motor carrier has requested records from a State

licensing agency as proof of compliance with the provision, even if the

motor carrier has not received the State agency's response. The ATA

maintains that privacy concerns have resulted in States developing

elaborate procedures for

[[Page 33262]]

obtaining MVRs, and that delays are often encountered.

FHWA Response

The FHWA has determined it is in the best interest of safety to

retain this section. The proposal to delete the provision was based on

two assumptions which commenters have questioned. The first assumption

was that State driver-licensing systems would be able to provide a

comprehensive record of accidents and traffic violations involving

interstate [non-CDL-holding] CMV drivers. The second assumption was

that the State records would be far superior and more objective than

the current practice of relying on a driver's memory. It appears that

several serious limitations would prevent successful adoption of such a

rule at this time.

Several commenters expressed reservations about the completeness

and timeliness of States' operator license status information. They

believe significant improvements must be made in the States' collection

and transmission of this data before motor carriers should be asked to

rely completely on it.

Relying completely on State information sources would also

eliminate a cross-check between driver-provided information and

information obtained from State MVRs. This would be especially

problematic for non-CDL-licensed CMV drivers because there is no

centralized information source similar to CDLIS, except for the

National Driver Register Problem Driver Pointer System (NDR-PDPS)

sponsored by the National Highway Traffic Safety Administration. This

system focuses primarily upon adverse actions against a licensee, such

as suspensions and revocations. One commenter also highlighted the

administrative difficulty of gathering State MVR information on non-CDL

drivers when the home States of the driver and the motor carrier are

different. While this certainly can present a challenge for a motor

carrier attempting to obtain the information on its own, the

information is commonly available via third-party providers for a fee.

However, there is no such service available to obtain NDR-PDPS

information.

As the AAMVA noted, waiving the requirement for drivers to notify

motor carriers might be acceptable in the cases where the State has a

mandatory notification program, but not where the State's program is

discretionary. The AAMVA noted that, as of mid-1997, no States had a

mandatory program, and only two States had widespread voluntary

programs, one of which was limited to intrastate drivers and motor

carriers.

Requesting information from drivers serves another safety and

business purpose. It is common practice for motor carriers to require

drivers and driver-applicants to certify the correctness of information

they provide. Falsification of information is often grounds for

dismissal. Until the completeness and timeliness of State-based driver

record information is substantially improved, it is important for motor

carriers to obtain this information from both the driver and the State-

based source to enable cross-verification of information.

The proposal to make an inquiry to each State where a driver has

driven during the preceding 12 months would place an undue burden on

drivers' employers and the State recordkeeping systems supporting the

CDLIS. The FHWA plans to address improvements in the effectiveness of

the CDLIS recordkeeping functions in a future rulemaking action.

The primary concern for both motor carriers and drivers is that a

loss of driving privileges in a jurisdiction other than the one

licensing a driver, is not always brought to the attention of the

licensing jurisdiction. A common basis for a loss of driving privileges

is the driver's failure to appear in court to respond to a traffic

citation. Since ``failure to appear'' does not have a specific traffic

violation associated with it, the licensing jurisdiction may choose not

to post it on an MVR. This is a difficult and complex issue, and the

FHWA expects to address it in a future NPRM.

The FHWA believes the ATA's first suggested revision could place

the cost and time burden of obtaining information solely upon the

driver. This is not the FHWA's intent. Furthermore, the regulation in

its current form does not prohibit a motor carrier from requiring a

driver to provide this information as a condition of employment: some

motor carriers do, in fact, require their drivers to obtain their own

MVRs.

The FHWA believes it is premature to accept the ATA's second

recommendation, that evidence of an information request made to a State

driver-licencing agency should constitute compliance with the section.

This could encourage motor carriers to delay making these requests

until they were compelled to, rather than integrating them into their

normal safety-oversight practices. The agency is aware of recent

significant changes in the reporting process made necessary by the

Driver's Privacy Protection Act of 1994 (18 U.S.C. 2721-2725) and the

recent amendments to the Fair Credit Reporting Act (15 U.S.C. 1681-

1681u). Both of these laws are generating numerous adjustments within

licensing agencies and the business community. The FHWA will monitor

this issue as it affects driver records and we encourage users of this

information to inform the agency if there are continuing problems.

Section 391.31, Road Test, and Related Sections 391.11(b)(10),

391.51(c)(4), 391.51(d)(2), 391.61, 391.67(c), 391.68(c), 391.69, and

391.73

The FHWA proposed to remove all requirements related to the road

test and equivalent of the road test, with the exception of the

applicability to drivers who apply for a waiver of physical

disqualification. The FHWA reasoned the test requirements were

redundant for those driver-applicants required to hold a CDL or who had

successfully completed a road test as part of the process of obtaining

another type of license or as required by an employer. The FHWA also

highlighted beneficial outcomes of providing motor carriers more

flexibility and reducing their recordkeeping burden.

The Houston Lighting and Power Company favored removing the

requirement, contending that motor carriers are in the best position to

determine whether a road test is needed for a non-CDL driver. The ABA

also supported the proposal, noting ``it is no longer meaningful for

any driver that has a Commercial Driver's License.''

The OOIDA opposed the proposal, contending that the key assumption

is flawed: a CMV driver's possession of a CDL does not necessarily mean

the driver is qualified to operate a CMV. The OOIDA's chief concern is

that State-administered driving and skills tests are designed to assess

a limited scope of performance. The OOIDA asserted that it is not

uncommon for inexperienced drivers with little or no commercial driver

training to pass skills tests administered by State personnel or State-

authorized third-party testers, and that inadequate State budgets may

have an adverse impact on both the thoroughness of the skills testing

procedures and the qualifications of testing personnel. It quoted an

``On Guard'' bulletin issued by the FHWA in January 1997:

A CDL does not indicate that the holder is a trained or

experienced truck or bus driver . . . Title 49 CFR 391.11(b)(3),

(Qualification of Drivers) requires that a driver be able, by reason

of experience, training, or both, to safely operate the commercial

motor vehicle he or she drives. This requirement is not met

[[Page 33263]]

by simply ascertaining that a prospective driver holds a CDL.

Air Products also opposed the proposal. The firm has found that

many drivers holding CDLs do not possess the skills necessary to

operate the company's vehicles safely. Air Products and the OOIDA

shared the concern that some motor carriers, eager to reduce costs,

would interpret the elimination of the FMCSR requirement for a road

test as relieving them of all responsibility to test their drivers

prior to hiring them.

FHWA Response

The FHWA has determined that it is in the best interest of safety

to retain this section. It serves a useful purpose for both CDL and

non-CDL drivers. Commenters noted that some CDL holders might not, or

do not, possess the skills necessary to safely operate the vehicles the

company plans to assign them to drive. This is a particular concern

with drivers who hold endorsements for cargo tanks and operation of

double and triple trailer combination vehicles, both of which are

granted on the basis of written tests rather than road tests.

Section 391.33, Equivalent of Road Test

The FHWA proposed to delete this entire section as a requirement

related to the road test proposed for deletion and discussed above.

This section covers documents a driver may present, and a motor carrier

may present, in place of, and as equivalent to, a road test required by

Sec. 391.31.

As part of its comment to the proposed deletion of Secs. 391.31 and

391.33 (see above), the OOIDA requested removal of Sec. 391.33(a)(1).

That provision allows a driver to present and a motor carrier to accept

a valid operator's license as equivalent to the road test required

under Sec. 391.31.

FHWA Response

As discussed in the previous section, the FHWA has determined that

it is in the best interest of safety to retain the requirement for the

road test, Sec. 391.31. The agency has determined that a CDL, but not

the double/triple trailer or cargo tank vehicle endorsements, may be

considered as the equivalent of a road test. However, a non-CDL

operator's license will no longer automatically be considered the

equivalent of a road test. If a driver presents an operator's license

(i.e., a State classified operator's license that is not a CDL), the

motor carrier must make this determination in accordance with the

existing provisions of Sec. 391.33(c).

The provision in Sec. 391.33(a)(1) currently allows a motor carrier

to accept a valid operator's license (emphasis added) in place of and

as equivalent to the road test required by Sec. 391.31. The operator's

license is different in many ways from the CDL. States' requirements

for road tests required to obtain an operator's license vary

considerably in their coverage and depth. On the other hand, the

driving test required for CDL applicants contains a required series of

activities and maneuvers for the driver to demonstrate basic vehicle

control, safe driving, use of air brakes, and pre-trip vehicle

inspection.

However, the CDL endorsements required to operate double/triple

trailer combination CMVs and cargo tank CMVs are awarded based upon

successfully passing a knowledge test. No States offer skills tests as

a requirement for obtaining these endorsements. A motor carrier must

still assess a driver's skill in operating these vehicles, using, at

minimum, the maneuvers and operations required under Sec. 391.31(c).

The FHWA will replace the words ``valid operator's license'' in

Sec. 391.33(a)(1) with the phrase ``valid Commercial Driver's License,

as defined in Sec. 383.5 of this subchapter, but not including double/

triple trailer or tank vehicle endorsements''.

Section 391.49(d)(5), Copy of Certificate of Road Test for Drivers

Requesting Waiver of Certain Physical Defects

The FHWA received no comments on the proposal to revise this

section. The section concerns a copy of a certificate issued pursuant

to a driver's road test administered as part of the process of

requesting a physical qualifications waiver for drivers with specific

listed limb impairments, who are otherwise qualified to drive a CMV.

FHWA Response

The FHWA has decided to retain this section as it appears in the

current FMCSRs, including retaining the existing cross-reference to

Sec. 391.31. The proposed revision would have deleted, among other

things, the requirement for the driver to successfully demonstrate

performance of a pretrip inspection.

Section 391.51, Driver Qualification Files

The FHWA proposed to remove Sec. 391.51(b)(5) covering ``any other

matter which relates to the driver's qualification to drive a

commercial motor vehicle safely.'' The FHWA noted that the rules in

part 391 are minimum requirements, that motor carriers are allowed to

maintain any document in a driver qualification file related to the

driver's qualifications, and concluded that this section was unclear

and unnecessary. The FHWA also proposed to remove paragraph (d),

concerning files for intermittent, casual, or occasional drivers, and

paragraph (e), concerning drivers employed by another motor carrier.

Inspector Moore of the Vermont DMV recommended retention of

paragraph (b)(5) because he believed that it encompassed a variety of

documentation making up an integral part of a driver qualification

file, and that the motor carrier might not otherwise retain such

documentation. Inspector Moore named some examples: The motor carrier's

periodic inquiries to State DMVs concerning a driver's record [over and

above those required by regulation]; copies of accident reports not

otherwise required to be retained; correspondence concerning an

individual's driving; correspondence concerning regulatory compliance

received from industry, enforcement agencies, or the public; copies of

safe driving awards; and copies of records of disciplinary action

against the driver by the motor carrier.

The FHWA received no other comments concerning Sec. 391.51.

FHWA Response

The FHWA believes most motor carriers retain all of this

information and more as a normal business practice. Without a

requirement to retain specific documents, there is a possibility some

motor carriers might be more selective in their choice of records to be

maintained and retained. The FHWA proposed to remove paragraph (b)(5)

because it did not provide specific examples of what information the

motor carrier would be required to retain. This might be remedied at

some future time through regulatory interpretation. Accordingly, the

section is revised as proposed in the NPRM, except that the provisions

in the current regulations concerning the certificate of the driver's

road test and the list or certificate relating to violations of traffic

laws and ordinances are retained.

The FHWA is revising the other elements of Sec. 391.51 as proposed

in the NPRM.

Section 391.61, Drivers Who Were Regularly Employed Before January 1,

1971

The FHWA proposed to revise this section which covers limited

exemptions from the part 391 driver qualification requirements for CMV

drivers who were regularly employed before January 1, 1971. The agency

proposed to delete the reference to the

[[Page 33264]]

road test, to change the term ``regularly employed driver'' to

``single-employer driver,'' and to delete the redundant final sentence

of the section. No commenters addressed this section. Except for

retaining the reference to the road test, the FHWA is revising the

section as proposed in the NPRM.

Section 391.63, Intermittent, Casual, or Occasional Drivers

The FHWA proposed to revise this section to replace the term

``intermittent, casual, or occasional drivers'' with ``multi-employer

drivers'' (see comments and discussion under the heading, Sec. 390.5

Definitions, earlier in this document), and to revise the list of

actions a motor carrier is not required to perform with respect to

these drivers.

Because the FHWA has determined it is not in the interest of safety

to remove the requirement that a driver provide a record of violations

or a certificate in accordance with Sec. 391.27, the action will remain

in the list of exemptions under Sec. 391.63.

Section 391.65, Drivers Furnished by Other Motor Carriers

The FHWA proposed two revisions to this section which concerns the

driver qualification file requirements for drivers furnished by other

motor carriers. The first would require a motor carrier that obtains a

driver's qualification certificate from his/her previous motor carrier

employer to contact that motor carrier to verify the validity of the

certificate. The second would replace the current requirement for a

motor carrier to recall a qualification certificate if it learns the

driver is no longer qualified under the regulations of part 391. The

revised regulation would require the motor carrier to be responsible

for the accuracy of the certificate, and make the certificate invalid

if the driver left the employment of the issuing motor carrier or the

driver was no longer qualified under part 391.

No comments were received on these proposed revisions. The FHWA

incorporates them into the final rule.

Section 391.67, Farm Vehicle Drivers of Articulated Commercial Motor

Vehicles

The FHWA proposed to revise this section, which covers certain

exemptions from the part 391 driver qualification requirements provided

to farm vehicle drivers of articulated CMVs. The agency proposed

replacing the references to Sec. 391.11(b)(8), (b)(10), and (b)(11)

with a reference to Sec. 391.21 only. The FHWA also proposed to delete

Sec. 391.67(c) to conform to the proposed deletion of part 391, subpart

D.

Because the FHWA has decided to retain Sec. 391.11(b)(8) and

subpart D, the reference will refer to redesignated Secs. 391.11(b)(6)

and 391.11(b)(8), and retain the references to subparts C, D, and F.

Section 391.68, Private Motor Carriers of Passengers (Nonbusiness)

The FHWA proposed to revise paragraph (a) of this section,

concerning certain exemptions from the part 391 driver qualification

requirements provided to CMV drivers of nonbusiness private motor

carriers of passengers. The agency proposed replacing the references to

Sec. 391.11(b)(8), (b)(10), and (b)(11) with a reference to Sec. 391.21

only. Because the FHWA has determined that Sec. 391.11(b)(8) will be

retained and Sec. 391.11(b)(10) and (b)(11) will be redesignated, the

section cross-references the redesignated Secs. 391.11(b)(6) and

(b)(8). Private motor carriers of passengers (nonbusiness) continue to

be exempt from the requirement relating to a driver's application for

employment.

Since the NPRM was published, a technical amendment published July

11, 1997 (62 FR 37150) removed all requirements and references to part

391, subpart H, from parts 355 through 391 of the FMCSRs. This was

necessary because the implementation of part 382 made part 391, subpart

H, obsolete. The final rule will also reflect this change.

Section 391.69, Drivers Operating in Hawaii

This section 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 for a continuous

period beginning prior to April 1, 1975. The FHWA believed the

exemption provided was redundant and proposed to remove it.

The FHWA received no comments on this item. Accordingly, it will be

removed.

Section 391.71, Intrastate Drivers of Commercial Motor Vehicles

Transporting Class 3 Combustible Liquids

The FHWA proposed to delete this section that deals with certain

exceptions to the part 391 driver qualification requirements for

intrastate drivers of commercial motor vehicles transporting Class 3

combustible liquids. The agency reasoned it had no authority to support

application of parts 390 through 399 of the FMCSRs to a motor carrier

or driver operating a CMV in intrastate commerce, whether or not the

motor carrier has an interstate operation. However, the FHWA noted the

requirements of parts 382, 383, and 387 would continue to apply.

The FHWA received two comments concerning the proposal to delete

this section. Houston L&P favored the proposal and supported the FHWA's

assertion that the Hazardous Material Regulations cover these vehicles

and drivers. The AWHMT also favored the proposal, although it

questioned the rationale described in the preamble to the NPRM.

FHWA Response

The FHWA removes and reserves this section as proposed in the NPRM.

The preamble to the NPRM explained in detail the FHWA's reason for

proposing to delete the section (see 62 FR 3855, at 3859). The agency

concluded that 49 CFR 177.804 was never intended to make the FMCSRs

applicable to intrastate commerce. Section 177.804 requires motor

carriers subject to part 177 to comply with 49 CFR parts 390-397 ``to

the extent those regulations apply.'' Its purpose was to make the civil

penalty provisions of the Hazardous Materials Transportation Act

applicable to hazardous materials carriers already subject to the

FMCSRs. The assertion of jurisdiction over intrastate commerce in

Sec. 391.71, limited though it may be, is beyond the FHWA's authority.

Section 391.71 is therefore being removed.

However, the Controlled Substances and Alcohol Use and Testing

standards in 49 CFR part 382, and the CDL standards in 49 CFR 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 requirements in part 387 still

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.

Section 391.73, Private Motor Carriers of Passengers (Business)

Because Sec. 391.69 was proposed to be removed and Sec. 391.71 was

proposed to be removed and reserved, the FHWA proposed to redesignate

this Sec. 391.73 as Sec. 391.69. This would place the section

concerning provisions for private motor carriers of passengers

(nonbusiness) directly after those for private motor carriers of

passengers (business) in a more logical sequence in the FMCSRs.

[[Page 33265]]

The agency did not propose revisions to the scope or content of the

section.

The FHWA received no comments on this proposal. The section will be

redesignated as proposed in the NPRM.

Section 392.7, Equipment, Inspection, and Use; Section 392.8, Emergency

Equipment, Inspection, and Use

The FHWA proposed to remove these sections. They cover the driver's

responsibility to satisfy himself/herself that specified CMV parts,

accessories, and emergency equipment are in good working order, and

require the driver to use them when and as needed. The agency reasoned

that they duplicated both Sec. 396.13(a), which requires a driver to be

satisfied the CMV is in safe operating condition before driving it, and

the equipment requirements of part 393.

The FHWA received four comments concerning the proposal to remove

these sections. Air Products recommended the specific language of

Sec. 392.7 be relocated to Sec. 396.13(a), rather than being deleted.

Air Products believes it is necessary for drivers to have instructions

specifically identifying critical safety components. Inspector Moore of

Vermont DMV expressed much the same concerns.

The ATA favored the proposal to remove the sections and to rely on

the provisions in Sec. 396.13 as an interim measure. However, the ATA

was concerned that distributing ``initial compliance'' requirements

among other sections of the FMCSRs may tend to diminish the importance

of this issue in the minds of drivers: ``We believe drivers tend to

focus their attention on parts 392 and 395 which have an inherently

greater impact on their actions.'' The ATA also believed that

incorporating driver vehicle inspection report requirements in part 396

and moving the ``pre-trip inspection'' checklist from part 392 to part

396 could send drivers the unintended message that these activities,

and the completion and submittal of records associated with them, were

of lesser importance.

The AAMVA expressed much the same concern regarding instructions

for drivers on precautions for unattended vehicles and driving under

hazardous conditions.

FHWA Response

The FHWA is retaining these two sections. The agency agrees with

the commenters that there is a need for drivers to have instructions

specifically identifying critical safety components. Also, the FMCSRs

provide a specific, prescriptive basis for motor carriers to develop

their own policies and procedures.

Section 392.9, Safe Loading, Drivers of Trucks and Truck Tractors

The FHWA proposed to remove this section, covering requirements for

a driver to assure the proper loading and securement of cargo prior to

driving, inspecting the cargo and its securement within the first 25

miles, and reexamining the cargo and its securement at a change of duty

status or after 3 hours or 150 miles of driving.

The FHWA received two comments on this section. Houston L&P favored

the proposed removal. It asserted that each motor carrier has a

responsibility to ensure all loads are properly distributed and

secured. Removing this section would give motor carriers this

flexibility.

Air Products agreed with the FHWA's explanation of the reason for

eliminating the paragraph, but was concerned how motor carriers would

develop policies and procedures without guidance currently provided in

the FMCSRs. Air Products maintained that many motor carriers rely on

the specific prescriptive nature of the FMCSRs. It recommended that the

FHWA place a requirement in Sec. 393.100 to emphasize the need for

motor carriers to develop adequate cargo securement inspection

procedures for their drivers to follow.

FHWA Response

The FHWA retains this section in the FMCSRs. Although the section

appears highly prescriptive, it is supported by operational practices

and by contemporary research, including the nearly-completed Load

Securement Study sponsored by the Ontario Ministry of Transportation

and Communications, Transport Canada, and the FHWA. The U.S. Department

of Transportation published an advance notice of proposed rulemaking on

October 17, 1996 (61 FR 54142) and established a public docket, FHWA-

97-2289 (formerly FHWA Docket MC-96-41) on this subject. The Canadian

Council of Motor Transport Administrators (CCMTA), one of the members

of a drafting group developing a model set of cargo securement

guidelines based upon the results of the research, has posted

information on the Internet. Its website is http://www.ab.org/ccmta/

ccmta.html.

Section 392.9(c), Safe Loading, Buses

The FHWA proposed redesignating Sec. 392.9(c)(1) as Sec. 392.62,

deleting Sec. 392.9(c)(2), and redesignating Sec. 392.9(c)(3) as

Sec. 392.9(b). This redesignation was proposed to consolidate several

requirements related to transportation of passengers in a single

location in the regulations and to remove a redundant requirement. No

commenters addressed this proposal.

The FHWA removes and redesignates the sections as proposed in the

NPRM with one minor editorial change. The term ``freight'' in the

current Sec. 392.9(c)(3) embraces the term ``express packages,'' so the

phrase ``or express'' is deleted in the final rule.

Section 392.9b, Hearing Aid to Be Worn

The FHWA proposed to remove this section because it duplicates the

information contained in the Medical Examiner's Certificate at

Sec. 391.45(g), ``[Driver] qualified only when wearing a hearing aid.''

The agency received no comments on this proposal. Accordingly, the

section is removed as proposed.

Section 392.10(b)(1) and (3), Railroad Grade Crossings, Stopping

Required

The provisions of Sec. 392.10 require CMVs transporting passengers

or hazardous materials requiring placarding to stop prior to crossing

railroad tracks at grade, except in certain specified cases described

in paragraphs (b)(1) through (b)(5). The FHWA proposed to add another

exception, to permit these CMVs to cross without stopping at locations

equipped with an active warning device (signal, gate, lights) when the

device is not activated to warn drivers of the approach of an oncoming

train.

The FHWA received 22 comments responding to this provision of the

proposal. Four commenters favored the proposed revision.

The National Transportation Safety Board (NTSB) restated its 1981

Safety Recommendation H-81-77, the basis for the proposal. The NTSB

recommendation stated:

[T]he FHWA amend Sec. 392.10, consistent with the Uniform

Vehicle Code, to require trucks carrying bulk hazardous materials to

stop at crossings with active warning devices only when the devices

are activated to warn drivers of an approaching train. The Safety

Board is not aware of any accident data nor has the Safety Board

investigated any accident which suggests that the proposed revision

would have an adverse impact on commercial vehicle or hazardous

materials safety.

The ATA also favored revising the regulation. It pointed to

considerations of disruption of the flow of traffic, as well as the

potential of rear-end collisions and unsafe passing by other vehicles

at the crossings. The ATA stated it had discussed the issue with

[[Page 33266]]

safety professionals from 4 major tank truck carriers [not named] at a

meeting of the ATA's Safety Management Council, and that they supported

the proposed regulatory revision. The ATA also recommended the FHWA

urge States to amend their laws, noting that only 11 States provide

relief from stops at active railroad crossings.

Mr. Hoy A. Richards, Principal, Richards & Associates and Senior

Scientist, Texas Transportation Institute, also supported the proposal.

He asserts stopped CMVs are a safety hazard unless pull-out lanes are

provided; that State highway safety statistics (especially those from

Texas, Illinois, and Oregon) ``will show that there are twice as many

no-train motor vehicle accidents as there are motor vehicle/train

accidents.'' He also believes most drivers have no understanding of why

CMVs stop at non-activated [dark] signals, although he stated he could

not quote statistics. Mr. Richards did not cite reports nor provide

references to the accident statistics he cited in his comments.

Mr. Richards also recommended several countermeasures based upon

changes to traffic signs and signals, including use of a black-on-white

crossbuck at all active highway-rail intersections and installation of

a green traffic signal in all active devices. He also recommended

engineering studies to determine whether standard highway traffic

signal control devices could be installed at branch line and industrial

grade crossings.

The State of Connecticut's DOT (Connecticut) noted that its State

statutes require passenger and hazardous-materials-laden CMVs to stop

before crossing any railroad tracks at grade. Connecticut said it has

recently established a committee to study highway-rail crossing

matters, including, among other things, the requirement for school

buses to stop at all active crossings. Although it stated that no

consensus had been reached on this issue, Connecticut said it would

generally support the proposed revision, provided the FHWA addressed

two issues. It requested the FHWA to address the definition of an

``active warning device'' and limit it to those grade crossings with

standard railroad flashing lights and gates. It also recommended

specific regulatory signage at exempt crossings used exclusively for

industrial switching purposes.

The remainder of the commenters were strongly opposed to the

proposal. These commenters were: the Association of Waste Hazardous

Materials Transporters; Air Products and Chemicals, Inc.; the North

Dakota DOT; the City of Littleton, Colorado, Fire Department; New York

Operation Lifesaver; the Association of American Railroads; CSX

Transportation; the American Association of Motor Vehicle

Administrators; the United Transportation Union; the International

Association of Fire Fighters; Louisiana Railroads; Northeast Illinois

Regional Commuter Railroad Corporation (Metra); Missouri Department of

Economic Development; Operation Lifesaver, Inc.; Brotherhood of

Locomotive Engineers; National School Transportation Association; and

Vermont Railway/Clarendon and Pittsford.

Commenters raised numerous concerns relating to the availability of

current data to support the proposed regulatory revision,

differentiation between active and passive grade crossings

(availability and meaning of warning signals, habituation of CMV

drivers to stop at one type of crossing but not another), reliability

of the active warning devices, other drivers' expectations of tank

vehicles and buses stopping at railroad grade crossings, and the use of

a Federal standard as a foundation for States' motor carrier safety

regulations and motor carriers' company policies. Some commenters also

reflected upon their own and colleagues' experiences with near-misses

and in dealing with the aftermath of rail-motor vehicle collisions. The

following summaries are representative of these comments.

CSX Transportation noted ``In nearly every case involving a

collision between any motor vehicle and a train, the primary

contributing factor is failure to stop on behalf of the motor

vehicle.''

Operation Lifesaver emphasized a need for contemporary research

[T]o determine whether actions recommended [by the NTSB] 12 to 16

years ago are relevant or even advisable today from a safety

perspective. Many highway-rail crossing safety issues have been

addressed successfully during the past 16 years by federal, state,

and local governments, and by private organizations, including

Operation Lifesaver. In fact, highway-rail collisions nationwide

have dropped from 8,500 in 1981 to 4,000 in 1995, a decrease of 53

percent. Given this marked safety improvement, the 1981 and 1985

recommendations may not reflect priority concerns in 1997.

Operation Lifesaver also criticized a 1985 FHWA study that

recommended rescinding the CMV stopping requirement, although it also

projected an increase in the number of hazardous materials-carrying

CMVs, school buses, and passenger buses striking trains.

Louisiana Railroads stated that available data indicate

approximately 50 percent of accidents occur at crossings where an

active warning device is present, whether or not the device is

activated.

The United Transportation Union commented:

In 1995, there were 579 deaths at public highway crossings, and

1,888 injuries were sustained. During the first 11 months of 1996

(the latest figures available) there have been 3,214 accidents at

public crossings involving motor vehicles, and resulting in 328

deaths and 1,234 injured. It is important to keep in mind that these

tragedies occurred even when CMVs are required to stop at all

crossings. To permit such vehicles to continue through crossings

when there is no signal activation will create an even more

hazardous situation than currently exists.

The Brotherhood of Locomotive Engineers commented:

Locomotive Engineers are a unique party in this proceeding

because we are usually the only witness to the real world at a

highway rail crossing * * * Reckless behavior at the crossing is a

sorry sight at best, a stupid and painful tragedy at worst. When the

vehicle is one carrying hazardous material or passengers, the

careless behavior at the crossing may literally destroy hundreds,

perhaps thousands, of lives and wield tremendous economic damage.

The consequences of a train collision with a large truck carrying

hazardous materials or a bus carrying passengers could be so severe

there seems little rational argument to support removing the extra

measure of safety that is provided by stopping before crossing.

Several commenters pointed out the proposed change would negate

many State statutes, and advised that the language of the proposed rule

would not require a stop at an activated warning device.

FHWA Response

The FHWA has determined that it is in the best interest of highway

safety to retain Sec. 392.10 of the FMCSRs in its current format at

this time.

The NTSB's Safety Recommendations, H-81-77 and H-89-36, if looked

at together, propose that Sec. 392.10 of the FMCSRs be amended by

rescinding paragraph (b)(1) (exclusively for industrial switching) and

revising the balance of the section. The FHWA's proposal would have

revised the FMCSRs to require placarded hazardous materials laden CMVs,

as well as passenger CMVs, to stop at only those railroad grade

crossings equipped with active warning devices, and only when the

devices are activated to warn drivers of an approaching train.

Data furnished by the Federal Railroad Administration that the FHWA

forwarded to the NTSB show a constant and dramatic decrease in railroad

grade crossing accidents involving

[[Page 33267]]

commercial motor vehicles during the past 10 years. While there is no

data directly linking the FHWA's grade crossing regulations with this

documented decline in grade crossing accidents, neither is there data

to substantiate the hypothesis that changing Sec. 392.10 of the FMCSRs

to reflect the Board's recommendations is likely to result in a decline

in grade crossing accidents. However, the trend information available

substantiates the FHWA's experience that the current grade crossing

requirements are warranted and, we believe, at least partially

responsible for reducing the number of such accidents. We continue to

be concerned that the recommendations, if implemented, would reduce the

effectiveness of the current requirements and undo some of the progress

that has been made in railroad grade crossing safety.

The text of Sec. 11-702 of the UVCMTO, ``Certain vehicles must stop

at all railroad grade crossings,'' has not changed substantively since

the NTSB issued its Safety Recommendations. Although paragraph (b) of

Sec. 11-702 indicates certain types of railroad grade crossings where

vehicles would not be required to stop, paragraph (c) states that the

State officials ``shall adopt such regulations as may be necessary

describing the vehicles which must comply with the stopping

requirements of this section * * * [and] shall give consideration to

the number of passengers carried by the vehicle and the hazardous

nature of any substance carried by the vehicle. Such regulations shall

correlate with and so far as possible conform to the most recent

regulation of the United States Department of Transportation.'' The

footnotes to the 1979, 1987, and 1992 editions of the UVCMTO refer to

Sec. 392.10 of the FMCSRs.

No commenters favoring the proposed revision addressed motor

carriers' proactive actions to prevent rear-end collisions. Many CMVs

carrying hazardous-materials have a sign, ``This vehicle stops at all

RR crossings'' placed on the rear of the vehicle so it is clearly

visible to other motorists. The statement that drivers of other

vehicles do not understand why CMVs stop at railroad crossings was

contradicted by several commenters in favor of retaining the current

regulation.

Finally, none of the commenters favoring the proposed change

provided current data in support of their positions. Mr. Richards'

comments did not specify whether the ``no-train'' accidents he cited

were all accidents in those States, or only those at or near grade

crossings.

Sections 392.13, Drawbridges, Slowing Down of Commercial Motor

Vehicles; Section 392.14, Hazardous Conditions, Extreme Caution;

Section 392.15, Required and Prohibited Use of Turn Signals

The FHWA proposed to delete these sections because they are

currently, and more appropriately, enforced through State and local

traffic laws. In addition, the FHWA concluded that the provisions of

Sec. 392.14 are fundamental safe driving practices and are probably

incorporated into most motor carriers' policy manuals.

Air Products generally supported the proposal to remove and reserve

the three sections. However, it was concerned about potential non-

uniformity of various State requirements and recommended that the FHWA

issue guidelines to the States to minimize conflicts.

The ATA supported removing Sec. 392.15 (a) through (c), but not

paragraphs (d) and (e). The ATA asserted the prohibitions are unique to

the FMCSRs and provided some history. The ``parking'' use prohibition

in Sec. 392.15(d) was a response to the use of turn signals on one side

of the CMV prior to the advent of four-way flashers. The ``do pass''

prohibition in Sec. 392.15(e) was incorporated into the FMCSRs with the

support of the trucking industry because of lawsuits against motor

carriers whose drivers had given this signal to a following driver who

was then struck by a third vehicle. The ATA recommended that the FHWA

review State laws on these topics before making a decision on revoking

the provisions.

The Pennsylvania DOT was concerned that removing Sec. 392.15 would

limit enforcement because State personnel who are not sworn police

officers cannot enforce traffic laws. Inspector Moore of the Vermont

DMV commented that the Vermont State statutes contain no provisions

similar to Sec. 392.14, and that Vermont traffic laws require use of

turn signals only for vehicles traveling on limited-access highways.

FHWA Response

The FHWA believes State and local traffic laws and motor carriers'

safe and prudent operating practices cover these situations. Therefore,

the FHWA is removing and reserving Secs. 392.13 and 392.15 as proposed

in the NPRM. However, the FHWA has determined it is in the interest of

highway safety to retain Sec. 392.14. This section provides a specific

basis for motor carriers to develop their own safety policies and

procedures for operating a CMV when adverse environmental conditions

limit visibility or reduce traction.

The FHWA included Sec. 392.15(d) and (e) in the recodification of

the FMCSRs on December 26, 1968 (33 FR 19700), a year after the motor

carrier safety regulations of the former Interstate Commerce Commission

had been transferred to the new Department of Transportation. A review

of the National Highway Traffic Safety Administration's Federal Motor

Vehicle Safety Standard (FMVSS) suggests that the uses of turn signals

described in Sec. 392.15(d) and (e) have been made obsolete by the

availability of vehicle hazard warning signal flashers, commonly known

as ``four-ways.'' Table 1, Required Motor Vehicle Lighting Equipment

Other than Headlamps (Multipurpose Passenger Vehicles, Trucks,

Trailers, and Buses, of 80 or more inches Overall Width) of FMVSS 108

(49 CFR 571.108) references Society of Automotive Engineers (SAE)

Recommended Practice J945, issued in February 1966.

The use of vehicle hazard warning signals also is described in the

UVCMTO Sec. 12-215. The UVCMTO was revised in 1968 to permit vehicles

to be equipped with lamps for the purpose of warning the operators of

other vehicles of the presence of a vehicular traffic hazard requiring

the exercise of unusual care in approaching, overtaking, or passing.

The same year, the UVCMTO also added a requirement that every bus,

truck, truck-tractor, trailer semitrailer, or pole trailer 80 inches or

more in overall width, or 30 feet for more in overall length be

equipped with lamps meeting these requirements. Finally, paragraphs (f)

and (g) of UVCMTO Sec. 12-215 state:

(f) The driver of any vehicle equipped with vehicular hazard

warning lights may activate such lights whenever necessary to warn

the operators of following vehicles that the signaling vehicle may

itself constitute a traffic hazard.

(g) The driver of a truck, bus, or truck tractor pulling a

trailer or trailers, equipped with vehicular hazard warning lights

may activate such lights when that vehicle is proceeding up a grade,

or under other conditions requiring it to be operated at a speed

less than the prevailing speed of traffic.

The FHWA believes these UVCMTO citations adequately address the

concerns of the ATA and other commenters concerning the proper use of

vehicular hazard warning lights.

In its current form, the section only considers potential hazards

to passengers in the event a CMV is operated during adverse

environmental conditions. The FHWA plans to address this issue as it

relates in more general

[[Page 33268]]

terms to other highway users in a future rulemaking action.

Section 392.20, Unattended Commercial Motor Vehicles; Precautions

The FHWA proposed to remove the section prohibiting a commercial

motor vehicle from being left unattended until the parking brake has

been set and all reasonable precautions have been taken to prevent the

vehicle from moving. The agency reasoned that State and local

government authorities are in a better position to monitor and enforce

regulations of this nature for commercial motor vehicles transporting

non-hazardous materials (special regulations for HM-laden commercial

motor vehicles are covered in part 397 of the FMCSRs). The FHWA

received no comments, and the section is removed and reserved as

proposed in the NPRM.

Section 392.22, Emergency Signals; Stopped Commercial Motor Vehicles

The FHWA proposed to revise paragraph (b) of this section,

concerning the placement of warning devices in the event a CMV is

stopped on the traveled portion or the shoulder of a highway for any

cause other than necessary traffic stops. The agency believes drivers

often do not place warning devices at the locations or distances

specified in the regulation because the instructions are not clear and

because it is difficult for them to estimate distances by eye. The

agency proposed to revise the section to make the language clearer and

to include the number of paces as well as the required linear distances

at which warning devices are to be placed.

The ATA provided the only comment on this section. It recommended

listing the distances in paces first, as they were when this regulation

was first promulgated by the ICC.

FHWA Response

The FHWA agrees with the ATA's recommendation to list the locations

for placing warning devices in paces, followed by the approximate

linear distances in meters and feet. The final rule describes the

locations as ``x paces (approximately y meters or z feet)'' where x, y,

and z are the appropriate dimensions in Sec. 392.22(b)(1) (i), (ii),

and (iii).

Section 392.25, Emergency Signals; Dangerous Cargoes

The FHWA proposed to delete this section prohibiting the use of

flame-producing devices on CMVs carrying certain hazardous materials

cargoes or fueled by compressed gas. The agency reasoned it was

unnecessary to prohibit the use of flame-producing devices because

Sec. 393.95(g) of the FMCSRs prohibits those devices from being carried

on a CMV transporting the same classes of placarded hazardous materials

described in Sec. 392.25.

Several commenters opposed removing this section. Mr. O. Bruce

Bugg, a law enforcement officer with experience in CMV and HM safety,

stated that it is not uncommon for CMV drivers to borrow warning

devices from other drivers to replace or to supplement their own

equipment. He said other drivers, highway department personnel, and

police officers could supply flame-producing devices to CMV drivers

transporting placarded ``flammable'' cargoes. The Pennsylvania DOT had

a similar comment.

The AHAS and Inspector Moore of the Vermont DMV also opposed

removing the requirement. They noted this section contains the only

specific prohibition on the use of these flame-producing devices. The

AHAS recommended merging the proscription against use of the devices

with the proscription against carrying the devices at Sec. 393.95(g).

Mr. Bugg recommended the provision be combined with sections in parts

393 or 396.

FHWA Response

The FHWA is retaining this section, and is also changing the

heading to ``Flame producing devices'' to make the intent more clear.

As several commenters pointed out, someone else (perhaps even a law-

enforcement official) could give a flame-producing device to a CMV

driver, with potentially serious consequences.

The FHWA believes the ``use'' provisions of part 392, the

``equipment'' provisions of part 393, and the ``inspection'' provisions

of part 396 of the FMCSRs need to be considered in their own contexts.

Section 392.25 specifically prohibits use of these devices. On the

other hand, Sec. 393.95(g), codified in an FMCSR part that describes

requirements for ``equipment'' rather than its use, specifically

prohibits carrying these devices.

Section 392.42, Notification of License Revocation

The FHWA proposed to move the requirement for a driver to notify

the employing motor carrier of a license revocation, which is currently

addressed in Sec. 392.42, to Sec. 391.15(b)(2). The agency also

proposed to change the title of paragraph (b) to ``Loss of driving

privileges.'' The change was proposed because the section addresses

conditions relating to driver disqualification, rather than general

safe driving provisions.

The FHWA also requested State driver licensing agencies to comment

on whether they send 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. These comments were

to be considered to determine if the FHWA should further revise

Sec. 391.15(b) to exempt a driver from the requirement to notify his/

her employing motor carrier if a State licensing agency sends written

notification to the motor carrier in the event the driver's license was

revoked, suspended, or withdrawn.

The sole commenter favoring this speculative revision was Houston

L&P. Houston L&P believed the MVR issued by a State licensing agency

provides adequate means for obtaining information on convictions,

disqualifications, license suspensions, revocations and cancellations

as required under Secs. 383.31(a) and 383.33. However, Houston L&P did

not comment on whether these sections, applicable to CDL holders,

provided comparable information for non-CDL CMV drivers.

All other commenters opposed the intent and direction of such a

revision. The AAMVA, the States of Wisconsin, Delaware, Idaho,

Missouri, Vermont, and Wisconsin, and one private motor carrier

addressed this issue.

The AAMVA stated it would strongly oppose a requirement for DMVs to

notify motor carriers of convictions or adverse licensing actions

against motor carriers' employees' driving records. It noted that only

a few Departments of Motor Vehicles (DMVs) have programs to notify

motor carriers of any violations added to a driver's record. The AAMVA

pointed out that California's statutory requirement and New York's

voluntary program require motor carriers to pay participation fees.

Finally, the AAMVA advised that these programs are costly to

administer. Because employment turnover rates in the trucking industry

are high, the single task of processing employer change notices

requires significant resources.

Delaware, Idaho, Missouri (Department of Revenue), and Vermont

stated they do not have a program in place to notify motor carriers

when drivers lose their driving privilege. The Delaware DPS added it

could not notify employers of CMV driver violations because it does

not, nor does it propose to, maintain records of drivers' employers.

This function would require a legislative change the Delaware DPS

believes would be difficult or impossible to pass. The Delaware DPS

stated it could not support a method

[[Page 33269]]

where the State would be held responsible or liable for this reporting.

Delaware also identified many of the issues noted by the AAMVA

concerning the significant difficulty in maintaining current basic

information, such as a driver's address. Delaware was profoundly

concerned that the transfer of these responsibilities to State agencies

could take place without the Federal government adequately assessing

the costs to the States. It cited ``the anticipated transfer of medical

qualification determinations'' [the subject of an ongoing FHWA

negotiated rulemaking] as an example of such a transfer.

The North Dakota Department of Transportation stated it would not

be able to comply with a requirement that a State notify a driver's

employer. North Dakota DOT noted many States do not keep records of

drivers' employers, and many drivers do not work for the same motor

carrier for any substantial length of time.

The Wisconsin Department of Transportation stated that it does not

send a written notification to a motor carrier when a driver's

privilege is withdrawn, and would oppose such a requirement. The State

has a voluntary ``Employer Notification Program'' enabling them to

receive notification of ``hits'' on an employee's record. The program

requires the employer to keep the DMV informed when drivers leave the

company or retire. Employers are charged a $20 annual base fee, a one-

time fee of $2 per employed driver, and a fee of $3 per driver record

abstract change generated by an accident, conviction, withdrawal from

the program, or other event. During 1996, 1,012 employers received over

52,000 driver abstracts.

Air Products also strongly opposed the revision on the ground that

each employee has a responsibility to report any issue negatively

affecting his or her ability to perform job functions. Further, if a

driver fails to report a license revocation, and that driver is

involved in an accident while driving for the employing motor carrier,

the motor carrier is still liable and responsible for the driver's

actions. Air Products contends that ``by exempting drivers from this

requirement, a message is being sent to the drivers that it is

acceptable to remain quiet.''

The Delaware DPS' point of view was similar to that of Air

Products--motor carriers are in the key position to review and assess

the safety of the drivers they employ. Delaware DPS also commented that

the FMCSRs might be amended to require at least an annual record check

of the safest (i.e., violation-free) drivers and more frequent checks

of the records of ``problem'' drivers.

FHWA Response

Section 392.42 is redesignated as Sec. 391.15(b)(2) as proposed in

the NPRM.

The issue of loss of driving privileges on the basis of citations

from a driver's licensing State or a State or other jurisdiction other

than the licensing State is a complex one. The FHWA will consider it in

a future rulemaking action. The title of Sec. 391.15(b) remains

``Disqualification for loss of driving privileges.''

No changes are made to require State licensing agencies to notify

motor carrier employers of licensing actions taken against drivers.

Placing the primary burden on the State licensing agencies to notify

employers of drivers' disqualifications would create a significant

unfunded mandate. The requirement would also be a difficult, if not

impossible, undertaking for most States due to the high turnover rate

of commercial motor vehicle drivers.

Section 392.51, Reserve Fuel

The FHWA proposed to remove this section. The section prohibits

carrying fuel for propulsion or operation of accessories except in a

properly mounted fuel tank. The agency believed there was no sound

reason to prohibit carrying small amounts of fuel under those

circumstances while (by implication) allowing the practice if the fuel

were to be used to power machinery transported on the CMV.

The FHWA received two comments. The AWHMT asked the FHWA to clarify

the rationale for removing this regulation. It raised two concerns: (1)

The definition of ``small package;'' and (2) how the carriage of small

packages containing fuel would be made consistent with the Hazardous

Materials Regulations (HMRs). Houston L&P supported the proposal,

citing the ``Materials of Trade'' exceptions to the HMRs issued in

January 1997.

FHWA Response

Just prior to the publication of the FHWA's NPRM, the Research and

Special Programs Administration issued a final rule, on January 8, 1997

(62 FR 1208). The RSPA final rule, effective October 1, 1997, with a

compliance date of October 1, 1998 (see 62 FR 49560, September 22,

1997), applies a uniform system of safety regulations to all hazardous

materials transported in commerce throughout the United States and

requires intrastate motor carriers and shippers to comply with the

HMRs, with certain exceptions. One set of exceptions applies to

``materials of trade.''

The RSPA defines a ``material of trade'' as a hazardous material,

other than a hazardous waste, that is carried on a motor vehicle: (1)

For the purpose of protecting the health and safety of the motor

vehicle operator or passengers; (2) for the purpose of supporting the

operation or maintenance of a motor vehicle (including its auxiliary

equipment); or (3) by a private motor carrier (including vehicles

operated by a rail carrier) in direct support of a principal business

that is other than transportation by motor vehicle. See 49 CFR 171.8.

The exceptions codified at 49 CFR 173.6 cover materials and amounts,

packaging, hazard communication, and aggregate gross weight provisions

for the ``materials of trade.''

Several of these exceptions apply to fuels. Packaging for gasoline

must be made of metal or plastic and conform to requirements of 49 CFR

parts 171, 172, 173, and 178, or requirements of the Occupational

Safety and Health Administration contained in 29 CFR 1910.106. For a

Packing Group II (including gasoline), Packing Group III (including

aviation fuel and fuel oil), or ORM-D, the material is limited to 30 kg

(66 pounds) or 30 L (8 gallons). A Division 2.1 material (flammable

gas) in a cylinder is limited to a gross weight of 100 kg (220 pounds).

The RSPA final rule states that the aggregate gross weight of all

materials of trade on a motor vehicle may not exceed 200 kg (440

pounds).

The FHWA provides references to the RSPA regulation in the FMCSRs.

For ready reference, the gross weight limits of commonly-used fuels

(gasoline, diesel, and flammable gases) and the packaging requirements

for gasoline are restated in today's final rule.

Accordingly, the FHWA will revise Sec. 392.51 to allow small

amounts of fuel for the operation or maintenance of a commercial motor

vehicle (including its auxiliary equipment) to be carried as defined

under ``materials of trade,'' 49 CFR 171.8.

Section 392.52, Buses; Fueling

The FHWA proposed to remove the section prohibiting buses from

being fueled in a closed building with passengers aboard. The agency

reasoned that this is a rare occurrence, does not influence highway

safety, and does not warrant a Federal prohibition. No comments were

received on this proposal. Accordingly, the section is removed and

reserved as proposed in the NPRM.

[[Page 33270]]

Section 392.68, Motive Power Not To Be Disengaged

The FHWA proposed to remove and reserve this section, which

prohibits CMVs from being driven with the source of motive power

disengaged from the driving wheels. The agency reasoned that this

prohibition is more appropriately monitored and enforced by State and

local officials. This prohibition is, in fact, contained in the Uniform

Vehicle Code and Model Traffic Ordinance, Sec. 11-1108, Coasting

Prohibited:

(a) The driver of any motor vehicle when traveling upon a down

grade shall not coast with the gears or transmission of such vehicle

in neutral.

(b) The driver of a truck or bus when traveling upon a down

grade shall not coast with the clutch disengaged.

The FHWA received no comments on the proposal to remove this

section. It is removed and reserved as proposed in the NPRM.

Sections 395.1(g), Hours of Service of Drivers; Retention of Driver's

Record of Duty Status

The FHWA proposed to remove Sec. 395.1(g), Retention of driver's

record of duty status. This section covered the divided record

authority provisions for records of duty status. As described earlier

in this document, the FHWA proposed 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 location within 48 hours after a request has been made

by a special agent or authorized representative of the FHWA.

No commenters addressed this section, and the final rule

incorporates the proposed change.

Sections 395.1(h), (i), and (j), and (k); Sleeper Berths, State of

Alaska, State of Hawaii, Travel time, Agricultural operations, Ground

Water Well Drilling Operations, Construction Materials and Equipment,

Utility Service Vehicles

Because the FHWA proposed to delete Sec. 395.1(g), it proposed to

redesignate the four paragraphs following it. The agency proposed no

substantive changes and received no comments concerning the

redesignations for these sections. However, the FHWA inadvertently

neglected to propose to redesignate the last four paragraphs in the

section, 395.1(l) through 395.1(o). The final rule implements the

proposed redesignations as well as redesignating by technical amendment

Secs. 395.1(l) through 395.1(o) as Secs. 395.1(k) through 395.1(n).

Section 395.2, Definitions, ``On-duty Time''

The FHWA proposed to revise the definition by removing paragraph

(2), inspection of equipment as required by Secs. 392.7 and 392.8,

because the agency had proposed to delete those sections. Although the

FHWA has determined it is in the interest of safety to retain those

sections (see discussion earlier in this document under those

headings), the agency believes the proposed text, ``all time

inspecting, servicing, or conditioning any commercial motor vehicle at

any time,'' includes the equipment, parts, and accessories described in

Secs. 392.7 and 392.8. The proposed language is therefore being

adopted.

Paragraph (7) under the definition of on-duty time covers time

spent providing a breath sample or urine specimen, including travel

time to and from the collection site, in order to comply with the FHWA

and USDOT controlled substance and alcohol testing regulations. The

paragraph refers to subpart H of part 391. After the NPRM was

published, the regulations in subpart H of part 391 were removed

because they have been superseded by part 382. The FHWA published a

technical amendment describing this action on July 11, 1997 (62 FR

37150).

No commenters addressed the proposed revision of Sec. 395.2. The

FHWA has made several minor editorial changes (such as deleting the

phrase ``of this section'') from the text proposed in the NPRM. The

reference to subpart H is also removed as a technical amendment.

Section 395.8, Driver's Record of Duty Status

The FHWA proposed revising paragraph (k)(1) to reflect the proposal

described earlier in this document 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 location within 48 hours after a request has been made

by a special agent or authorized representative of the FHWA.

No commenters addressed the provision as reflected in this section

and it is revised as proposed.

Section 396.11(b), Driver Vehicle Inspection Report(s); Report Content

The proposed revision to this paragraph was editorial in nature

(``vehicle'' for ``motor vehicle'' and ``report'' for ``vehicle

inspection report''). The FHWA received no comments on the proposed

revision, and the final rule incorporates the proposed changes.

Section 396.11(c), Corrective Action

The proposed revision to this paragraph made the language

consistent with other parts of the FMCSRs (``prior to operating''

replaced with ``prior to requiring or permitting a driver to

operate''). The FHWA received no comments, and this section is revised

as proposed in the NPRM.

Sections 396.11(c)(1) Through (c)(3), 396.11(d), and 396.13(b),

Concerning Driver Vehicle Inspection Report(s)

The FHWA proposed to remove Sec. 396.11(c)(3), requiring a legible

copy of the last driver vehicle inspection report (DVIR) to be carried

on the power unit. Other paragraphs within the section would be revised

to reflect this change. The agency believed the administrative burden

of requiring the DVIR to be carried on the power unit outweighed its

benefits. The NPRM stated that the presence or absence of a DVIR was

not a factor in the decision to conduct a roadside inspection of a CMV

and noted that failure to have the DVIR is not an out-of-service

violation under the CVSA North American Out-of-Service Criteria.

However, the FHWA emphasized that the proposed removal of the

requirement was not intended to affect the driver's access to the DVIR

and the requirement for the driver to review it before driving a CMV.

The FHWA received six comments concerning the proposal to delete

these provisions. Two commenters favored the proposal, one suggested

revisions to the proposed language, and three opposed it.

The ATA favored the proposal, but believed it was insufficient to

``alleviate the burdens and costs of the remaining `paper chase'.'' The

ATA also recommended the FHWA remove the requirement that the motor

carrier or its agent certify correction of the defects on the DVIR and

require the next driver to sign it. It contended that a review of a

motor carrier's work orders, generated in response to specific defects

reported by drivers, would be a more useful way to ascertain whether

maintenance practices are effective at keeping CMVs safe.

Houston L&P supported the proposal as promoting performance-

oriented flexibility.

Consolidated Safety Services, Inc. (CSS), a nationwide occupational

safety and health organization, offered comments concerning the text of

the proposed revisions to Sec. 396.11. CSS

[[Page 33271]]

interpreted the proposed language to imply there is only one copy of

the DVIR. CSS maintains the industry practice has been to use a two-

copy form (original and legible copy). CSS recommended minor changes to

the proposed revision to clarify the requirement for a single copy of

the DVIR as follows:

396.11(c)(1) Every motor carrier or its agent shall certify on

the original 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.

396.11(c)(2) Every motor carrier shall maintain the original

driver vehicle inspection report and the certification of repairs,

and the certification of the driver's review, for three months from

the date the written report was prepared.

The Colorado Department of Public Safety (CDPS), the Pennsylvania

DOT (PennDOT), and Inspector Moore of the Vermont DMV opposed the

proposal. The CDPS and Inspector Moore asserted that a roadside

inspector's review of a DVIR provides opportunities to determine a

driver's knowledge of how to perform a vehicle inspection, to assess an

example of a motor carrier's maintenance procedures, and to determine

whether education, review, or enforcement actions are warranted.

The CDPS proposed that Secs. 396.11 and 396.13 be combined into a

single requirement. The requirements for pre-and post-trip inspections

would be retained, but motor carriers would determine which one would

be documented and the documentation filed.

The PennDOT also found inappropriate the FHWA's rationale for

proposing to delete this section. The PennDOT noted that, if the out-

of-service criteria were the only basis for a regulatory requirement,

then many of the other existing regulations would need to be eliminated

as well.

Inspector Moore of the Vermont DMV believed many motor carriers

will probably continue to carry the DVIR in the vehicle because they

find it convenient to do so.

FHWA Response

The FHWA is removing Sec. 396.11(c)(3) and revising Sec. 396.13(b)

as proposed in the NPRM, and incorporating the modifications that CSS

suggested. The FHWA continues to believe that the presence or absence

of a DVIR in the power unit is not a primary factor in a decision to

conduct a roadside inspection. The FHWA believes the concerns of the

CDPS regarding documentation of the inspection are addressed because

there is no change in the requirement to document the results of an

inspection and certification of corrective action.

The FHWA is not removing the requirement for certification of

corrective action, as the ATA had recommended be done. The ATA's

recommendation of reviewing a work order would significantly increase

the complexity and time required to determine how a reported CMV defect

had been resolved. It would require a driver to contact maintenance

personnel who might not be available when the driver was being

dispatched. It would also require FHWA motor carrier safety specialists

to examine and cross-check separate maintenance and operational

records. The final rule otherwise adopts the changes proposed in the

NPRM.

Section 397.19, Transportation of Hazardous Materials; Driving and

Parking Rules; Instructions and Documents

The FHWA proposed to revise the text of this section to remove the

reference to the motor carrier's principal place of business in

paragraph (b) to reflect the proposal described earlier in this

document. The effect of this change would be 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

another specified location within 48 hours after a request has been

made by a special agent or authorized representative of the FHWA.

No commenters addressed this provision and it is revised as

proposed.

Comments on FMCSR Sections Not Addressed in the NPRM Definition of CMV

Houston L&P, Alabama Power, and Southern Company Services, Inc.,

believe a CMV should be defined to include vehicles of 26,001 or more

pounds. The AAMVA and Ameritech Corporation (Ameritech) recommended the

FHWA reconcile the weight definitions in parts 383 and 390 ``so only

one definition exists.'' Ameritech believed the FHWA should evaluate

the current GVWR criteria for the CMV definitions, weigh the regulatory

burden and return on safety performance, and assess the different

points where States apply the intrastate CMV safety regulations.

Ameritech also stated the FMCSRs should apply to ``all applicable

drivers * * * whether they operate a 12,000 pound utility truck or an

80,000 pound long-haul vehicle.''

FHWA Response

The FHWA is currently addressing the issue of the application of

the FMCSRs to different weight classes of CMVs, the motor carriers

operating them, and their drivers, in several ongoing regulatory

activities. Section 344 of the National Highway System Designation Act

of 1995 (Pub. L. 104-59, 109 Stat. 568) calls for a ``Motor Carrier

Regulatory Relief and Demonstration Project'' to exempt CMVs and their

drivers from elements of the FMCSRs for a 3-year pilot period (49

U.S.C. 31136(e)(2)). Applicant motor carriers must have an exemplary

safety history to participate. The Secretary of Transportation will

oversee safety through monitoring and reporting of safety-related data.

A Notice of Final Determination for this project was published in the

Federal Register on June 10, 1997 (62 FR 31655). The FHWA is accepting

applications through June 30, 1998.

State Conformity With Interstate Regulations

The Pennsylvania DOT noted that its State Vehicle Code is

automatically revised to conform to changes in the FMCSRs. It added

that not all States have this provision, and incompatibilities between

State and Federal regulations could arise.

FHWA Response

Several other States have brought similar concerns to the FHWA's

attention from time to time. Because of differences in State laws and

administrative procedures, the process to adopt FMCSR revisions into

State regulations takes one of three paths. Twenty-four States adopt

the FMCSRs by reference. Nineteen others adopt the FMCSRs into their

State regulations following an administrative review process performed

by executive-branch agencies (such as the State Department of

Transportation). Nine States adopt changes after legislative review and

process. One State adopts most changes through administrative process,

but requires a legislative process for others. The FHWA's MCSAP

provides a phase-in period of no longer than three years for States to

revise their regulations to respond to revisions to the FMCSRs. Despite

the variation in State adoption procedures and schedules, however, the

MCSAP has produced a degree of national uniformity in commercial motor

vehicle safety regulations never before achieved.

[[Page 33272]]

Enforcement Powers of Civilian State Motor Carrier Safety Personnel

The Pennsylvania DOT staffs its motor carrier safety programs with

uniformed personnel from State and local police forces, as well as with

civilian Public Utilities Commission and DOT inspectors. The

Pennsylvania DOT advises the FHWA that its civilian officials, who are

not sworn police officers, have limited enforcement powers. For

example, they cannot enforce local traffic regulations concerning the

use of turn signals, but they can cite a CMV driver under a State's

version of 49 CFR 392.15, Required and prohibited use of turn signals.

FHWA Response

There are many more sworn officers in any given jurisdiction than

there are civilian motor carrier safety officials. Although the

Pennsylvania DOT may have to limit civilian inspectors to certain

tasks, the FHWA believes there will be little, if any, negative impact

from deleting Sec. 392.15, as well as several other regulations

adequately covered under State and local traffic laws.

Performance Oriented Compliance Criteria

Houston L&P suggested motor carriers with a satisfactory safety

rating be relieved of certain regulatory requirements and be allowed to

maintain ``core records.'' These could include the Driver Qualification

File (Sec. 391.51), Alcohol and Drug Testing (part 382, pre-employment

drug testing, post-accident testing, random testing at a 25 percent

rate for drugs and 10 percent rate for alcohol), and documents

pertaining to financial responsibility requirements (part 387),

Inspection, repair, and maintenance (part 396), and hazardous

materials. Houston L&P believes that, if a motor carrier were assigned

an ``Unsatisfactory'' safety rating, the motor carrier should be

required to add hours of service (part 395) and increase the random

testing rates to 50 percent for drugs and 25 percent for alcohol.

FHWA Response

The FHWA may consider these comments in future rulemaking actions

as part of the Zero-Base Regulatory Reform Initiative.

Other Simplifications, Clarifications Requested

Alabama Power and Southern Company Services, Inc. believe the zero-

base process must continue to address regulations they consider

burdensome and of questionable value for safety: ``Each section of the

FMCSRs should be considered individually and impacted industries

allowed to debate the requirements.'' They believe further

simplification and clarification of some regulations is needed,

including raising the threshold for FMCSR applicability to 26,000

pounds, requiring States to be more consistent regarding waivers and

exemptions, and revising the hours-of-service regulations.

FHWA Response

The FHWA is currently addressing all of these issues. The agency is

implementing a demonstration program required under Section 344 of the

National Highway System Designation Act to exempt motor carriers

operating vehicles with a GVWR of 10,001 to 26,000 pounds from certain

regulations (61 FR 44385). The FHWA's MCSAP program activities and its

consultative role in the CVSA continually address compatibility between

State and federal determinations of applicability to motor carrier

safety regulations. The FHWA has also initiated a rulemaking to revise

the hours-of-service regulations (61 FR 57252, November 5, 1996).

Section 392.10(a), Railroad Grade Crossings; Stopping Required

The ATA recommended the FHWA delete this section's prohibition

against shifting gears while crossing railroad tracks. The ATA contends

that without this provision, CMVs would be able to negotiate grade

crossings in shorter periods of time. The ATA based this conclusion

upon results of a computer simulation performed by a major engine

manufacturer (the ATA did not name the company). The simulation modeled

crossing times for an 80,000 pound CMV consisting of a tractor powered

by a 330-hp engine with 10-speed transmission towing a 53-foot

semitrailer. For an upshift from third to fifth gear, times for

crossing a single track were computed to be reduced from 13.6 to 9.9

seconds. For crossing a double track, the times were computed to be

reduced from 14.8 to 10.6 seconds.

FHWA response

The FHWA appreciates this information. However, before a regulatory

change can be considered, more analyses will be needed, similar to the

work performed by the University of Michigan Transportation Research

Institute for the FHWA in 1985 and reported in Consequences of

Mandatory Stops at Rail-Highway Crossings (Report FHWA/RD-86/014).

Those analyses should explore the influence of engine power ratings,

longer trailer combinations including multiple trailers, multiple-track

grade crossings, and different grades at the crossings.

Section 392.33, Obscured Lamps or Reflectors

The Colorado DPS suggested this section be removed because State

law already requires that lamps be visible and Secs. 396.3(a)(1) and

396.7 appear to cover this violation.

FHWA Response

The FHWA will consider this in a separate rulemaking as part of its

Zero-Base Regulatory Reform initiative.

Section 393.70, Coupling Devices and Towing Methods, Except for

Driveaway-Towaway Operations

Inspector Moore of the Vermont DMV requested the FHWA to revise the

section to include a discussion of coupling device requirements for the

towing of semitrailers not equipped with fifth wheel assemblies, such

as those using pintle hook devices.

FHWA Response

The FHWA is addressing coupling devices and towing methods in a

separate NPRM published April 14, 1997 (62 FR 18170). Among other

things, the NPRM proposes revising Secs. 393.70 and 393.71.

Section 395.1(e), 100 Air-Mile Radius Driver

This provision concerns the exemption from the requirements of

Sec. 395.8 for drivers who operate within a 100 air-mile radius of the

drivers' normal work reporting location and return to the normal work

reporting location and are released from work within 12 consecutive

hours.

The Distribution and LTL Carriers Association (LTL) recommended the

FHWA increase the 100 air-mile radius to 150 air-miles, or,

alternatively, provide the exemption to drivers who report to and are

released from a normal reporting location and who are on duty for 12

hours or less. The LTL also suggested linking the Sec. 395.8 exemption

to three of the five requirements in the current regulation: (1) the

driver's on-duty status was 12 consecutive hours from start to finish

of the shift; (2) the driver commences and concludes work at points

where the motor carrier can verify the driver's on-duty status; and (3)

the employer maintains accurate time records on shift starting time,

completion time, and total hours on-duty. The LTL also raised the

possibility of increasing the consecutive hours of the work shift in

Sec. 395.1(e)(2), but it did not specify a figure or range.

[[Page 33273]]

The LTL provided historical and operational perspectives to support

its proposal. In 1980, the 100 air-mile exemption was increased from 50

air-miles. The same year, economic deregulation provided motor carriers

the opportunity to expand their operations to meet customer needs. The

LTL asserted that flexibility to meet those needs ``may necessitate

more routine operations beyond 100 miles from terminals.'' According to

the LTL, other factors, such as the use of larger-capacity 28-foot

doubles trailers for linehaul operations, improvements to road

networks, and increased operational scope of terminals and warehouses

in large metropolitan areas, make it possible for runs within a 150-

mile radius to be performed safely and efficiently under the current

10-hour driving limit, and within 12 hours of the time a driver reports

to work.

According to the LTL, approximately 24 percent of the employees of

distribution and LTL motor carriers are local or shorthaul drivers.

Based on that figure, extending the exemption could relieve some

100,000 drivers of the paperwork burden of records of duty status. The

LTL noted that the States of Illinois, Maryland, and Texas already

permit a 150-air-mile radius exemption for intrastate transportation

under the MCSAP Tolerance Guidelines, but that the FHWA had determined

Florida's 200 air-mile radius exemption did not conform to the

Guidelines.

FHWA Response

The FHWA recognizes that some drivers operating outside the 100

air-mile radius might drive less than a driver operating within the 100

air-mile radius. This brings into question the value of a distance-

based compliance ``floor'' for records of the type required under

Sec. 395.8. The FHWA will address the issue of distance- and time-based

exemptions to Sec. 395.8 in a future rulemaking.

Section 395.8(k), Retention of Driver's Record of Duty Status

The Department of California Highway Patrol (CHP) suggests that the

FHWA define ``supporting documents'' using the text of the November

1993 Regulatory Guidance (58 FR 60734).

FHWA Response

As part of the Hazardous Materials Transportation Authorization Act

of 1994 (Sec. 113, Pub.L. 103-311, 108 Stat. 1673, 1676), the Congress

directed the Secretary of Transportation to prescribe regulations to

improve compliance with the hours of service requirements, and to

improve the effectiveness and efficiency of Federal and State officials

reviewing such compliance. As part of that mandate, Congress directed

the FHWA to specify the supporting documents that motor carriers must

maintain. The FHWA is addressing this issue in a Notice of Proposed

Rulemaking published April 20, 1998 (63 FR 19457). The docket number is

FHWA-98-3706. Comments are requested by June 19, 1998.

Section 396.9(d), Inspection of Motor Vehicles in Operation; Motor

Carrier Disposition

Section 396.9(d) requires correction of violations or defects noted

in the report, and requires the motor carrier to certify those

corrections within 15 days following receipt of the report. In his

comments, Inspector Moore of the Vermont DMV contended that motor

carriers interpret this to mean they have 15 days to correct the

violation. Inspector Moore requested this statement be amended to

advise motor carriers that ``violations or defects identified on an

inspection report, but which have not been designated as out-of-service

violations, be repaired or corrected prior to use of the vehicle for

any purpose other than the specific assignment it was engaged in at the

time of the inspection.''

FHWA Response

The FHWA believes the current language of the regulation adequately

addresses this issue.

Other Comments

Virginia Power and the Petroleum Marketers Association of America

stated that they supported all the proposed changes.

For ease of reference the following distribution table is provided:

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

Old section New section

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

387:5..................................... 387.5.

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

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

None...................................... 387.27(b)(4) [added].

387.29.................................... 387.29.

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

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

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

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

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

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

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

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

Highway................................... Added.

Intermittent, casual, or occasional Renamed: Multiple-employer

driver.. driver.

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

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

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

driver.

None...................................... 390.29 added.

391.11.................................... 391.11 section heading

revised.

391.11(b)(4), (b)(5)...................... Redesignated as

391.13(a),(b).

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

391.11(b)(7).............................. 391.11(b)(5) and revised.

391.11(b)(8).............................. 391.11(b)(6).

391.11(b)(9).............................. 391.11(b)(7).

391.11(b)(10)............................. 391.11(b)(8) and revised.

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

None...................................... 391.13 added.

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

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

391.33(a)(1).............................. Revised.

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

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

391.51(b)(1).............................. 391.51(b)(7).

391.51(b)(2).............................. 391.51(b)(8).

391.51(b)(3).............................. 391.51(b)(5).

391.51(b)(4).............................. 391.51(b)(6).

391.51(b)(5).............................. Removed.

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

391.51(c)(1).............................. Removed.

391.51(c)(2).............................. 391.51(b)(1).

391.51(c)(3).............................. 391.51(b)(2).

391.51(c)(4).............................. 391.51(b)(3).

None...................................... 391.51(b)(4).

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

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

391.51(f)................................. 391.51(c).

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

391.51(h) intro........................... 391.51(d) intro.

391.51(h)(1).............................. 391.51(d)(4).

391.51(h)(2).............................. 391.51(d)(2).

391.51(h)(3).............................. 391.51(d)(3).

391.51(h)(4).............................. 391.51(d)(5).

None...................................... 391.51(d)(1).

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

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

391.65(b) and (c)......................... Revised.

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

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

391.69 Drivers operating in Hawaii........ Removed.

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

391.73.................................... Redesignated as Sec. 391.69

and revised.

392.9(c).................................. Redesignated as Sec. 392.62

and revised.

392.9b.................................... Removed.

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

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

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

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

392.25.................................... Revised section heading.

392.42.................................... Redesignated as Sec.

391.15(b)(2) and revised.

392.51.................................... Revised.

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

[[Page 33274]]

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

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

395.1(h).................................. Redesignated as Sec.

395.1(g).

395.1(i).................................. Redesignated as Sec.

395.1(h).

395.1(j).................................. Redesignated as Sec.

395.1(i).

395.1(k).................................. Redesignated as Sec.

395.1(j).

395.1(l).................................. Redesignated as Sec.

395.1(k).

395.1(m).................................. Redesignated as Sec.

395.1(l).

395.1(n).................................. Redesignated as Sec.

395.1(m).

395.1(o).................................. Redesignated as Sec.

395.1(n).

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

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

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

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

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

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 rulemaking 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, the rulemaking actually lessens the burden

imposed by regulations which are being removed, amended, or

redesignated. 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 rule on small

entities. The FHWA believes this rule will not have a significant

economic impact on a substantial number of small entities.

For the most part, this rulemaking will reduce the burden of

complying with the FMCSRs by making the regulations clearer and less

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

regulations would benefit, regardless of size. Any benefits resulting

from this action, however, would not be of sufficient magnitude to

generate a significant economic impact on small entities that would

require a full regulatory flexibility analysis to be performed.

This regulatory action will also facilitate compliance with the

FMCSRs by removing certain regulations that are more appropriately

addressed by company policy. This action will provide motor carriers

with more flexibility in furthering the safety of their operations.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C.

1532) requires each agency to assess the effects of its regulatory

actions on State, local, and tribal governments and the private sector.

Any agency promulgating a final rule likely to result in a Federal

mandate requiring expenditures by a State, local, or tribal government

or by the private sector of $100 million or more in any one year must

prepare a written statement incorporating various assessments,

estimates, and descriptions that are delineated in the Act. The FHWA

has determined that the changes in this rulemaking will not have an

impact of $100 million or more in any one year.

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

this rule does not have sufficient federalism impacts to warrant the

preparation of a Federalism Assessment.

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

regulation and no additional costs or burdens will be imposed on the

States. In fact, regulatory burdens will be reduced as a result of this

rulemaking. In addition, this action 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

Although this rulemaking does not impose new information collection

requirements, it will change existing information collections. These

changes were submitted to the Office of Management and Budget (OMB) for

approval in accordance with the Paperwork Reduction Act of 1995, 44

U.S.C. 3501-3520. The final rule revises two elements and deletes one

element within the existing information collections.

The first element is a recordkeeping requirement, Annual inquiry

into drivers' driving records, included in the following information

collection at Sec. 391.51 OMB Control Number 2125-0065:

Title: Driver Qualification Files.

Affected Public: Approximately 405,000 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 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, and 405,000 motor carriers subject to the

regulation, the initial employment applications impose an annual burden

of 23,833 hours on drivers and 11,917 hour on motor carriers. Initial

inquiry into drivers' records and investigations into employment

records impose a burden of 178,750 hours. Annual inquiries into

drivers' driving records impose an estimated annual burden of 398,750

hours. The recordkeeping requirements related to the list of

certification of violations impose an estimated annual burden of

159,500 hours. The total estimated burden is 777,333 hours. The OMB has

approved this information collection through October 31, 2000.

The second information collection revision involves the requirement

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

obtain information regarding the validity of the driver's qualification

[[Page 33275]]

certificate. This requirement is included in the following information

collection required under Sec. 391.63 and documented under OMB Control

Number 2125-0081:

Title: Qualification Certificate.

Affected Public: Approximately 405,000 motor carriers.

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 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

increases 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. This

information collection was approved by OMB through April 30, 2000.

The third information collection revision deletes the requirement

codified at 49 CFR 396.11(c)(3) for a copy of the driver vehicle

inspection report to be carried on the CMV's power unit.

Title: Inspection, Repair, and Maintenance.

OMB Number: 2125-0037.

Abstract: Motor carriers must maintain, or cause to be maintained,

records that document the inspection, repair, and maintenance

activities performed on their owned or leased motor vehicles. There are

no prescribed forms. The records are used by the FHWA and its

representatives to verify motor carriers' compliance with the

inspection, repair, and maintenance standards in part 396 of the

FMCSRs.

Respondents: 405,000 motor carriers.

Estimated Total Annual Burden per Record: 3,848,000 hours for

routine inspection, repair, and maintenance records; 32,271,702 hours

for driver vehicle inspection reports; 145,431 hours for the motor

carrier disposition; 87,333 hours for the periodic inspection; 9,330

hours for the records of inspector qualifications; and 10,361 hours for

the evidence of brake inspector qualifications.

Revision to Information collection budget for this item: The FHWA

has determined safety will not be adversely impacted if it removes the

requirement for a copy of the driver vehicle inspection report to be

carried on the CMV's power unit. This will reduce the time burden by

4,661,468 hours for this item from the current 33,114,100 hours to

28,452,600 hours for the overall information collection. This

information collection was approved by OMB through October 31, 2000. A

discussion of this revision appears under the comments concerning part

396.

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, Highway safety, Insurance,

Intergovernmental relations, Motor carriers, Motor vehicle safety,

Penalties, Reporting and recordkeeping requirements, Surety bonds.

49 CFR Part 390

Highway safety, Motor carriers, Motor vehicle safety, Reporting and

recordkeeping requirements.

49 CFR Part 391

Highway safety, Motor carriers, Motor vehicle safety, Reporting and

recordkeeping requirements.

49 CFR Part 392

Highway safety, Motor carriers, Motor vehicle safety.

49 CFR Part 395

Global positioning systems, Highway safety, Intelligent

transportation systems, Motor carriers, Motor vehicle safety, Reporting

and recordkeeping requirements.

49 CFR Part 396

Highway safety, Motor carriers, Motor vehicle maintenance, Motor

vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 397

Hazardous materials transportation, Highway safety,

Intergovernmental relations, Motor carriers, Motor vehicle safety,

Reporting and recordkeeping requirements.

Issued on: June 9, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

In consideration of the foregoing, the FHWA amends 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. 13101, 13301, 13906, 14701, 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 the business of transporting, for

compensation, the goods or property of another.

* * * * *

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

carrier. The term includes, but is not limited to, a motor carrier's

agent, officer, or representative; an employee responsible for hiring,

supervising, training, assigning, or dispatching a driver; or an

employee concerned with the installation, inspection, and maintenance

of motor vehicle equipment and/or accessories.

* * * * *

3. Section 387.27 is amended by removing ``and'' at the end of

paragraph (b)(2), by removing the period at the end of paragraph (b)(3)

and adding ``; and'' in its place, and by adding paragraph (b)(4) to

read as follows:

Sec. 387.27 Applicability.

* * * * *

(b) Exception. * * *

* * * * *

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

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.

* * * * *

[[Page 33276]]

For-hire carriage means the business of transporting, for

compensation, passengers and their property, including any compensated

transportation of the goods or property or another.

* * * * *

Motor carrier means a for-hire motor carrier. The term includes,

but is not limited to, a motor carrier's agent, officer, or

representative; an employee responsible for hiring, supervising,

training, assigning, or dispatching a driver; or an employee concerned

with the installation, inspection, and maintenance of motor vehicle

equipment and/or accessories.

* * * * *

PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL

5. The authority citation for part 390 is revised to read as

follows:

Authority: 49 U.S.C. 13301, 13902, 31132, 31133, 31136, 31502,

and 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C.

701 note); 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 term Highway is added; the term Intermittent, casual, or occasional

driver is removed; the term Multiple-employer driver is added; the term

Regularly employed driver is removed; the term Single-employer driver

is 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 highway

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 a highway in interstate commerce to transport passengers or

property when the vehicle--

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

rating of 4,537 kg (10,001 lb) or more; 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 chapter I, subchapter C).

* * * * *

Highway means any road, street, or way, whether on public or

private property, open to public travel. ``Open to public travel''

means that the road section is available, except during scheduled

periods, extreme weather or emergency conditions, passable by four-

wheel standard passenger cars, and open to the general public for use

without restrictive gates, prohibitive signs, or regulation other than

restrictions based on size, weight, or class of registration. Toll

plazas of public toll roads are not considered restrictive gates.

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 originating or terminating outside the State or the

United States.

* * * * *

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.

* * * * *

Principal place of business means the single location designated by

the motor carrier, normally its headquarters, for purposes of

identification under this subchapter. The motor carrier must make

records required by parts 382, 387, 390, 391, 395, 396, and 397 of this

subchapter available for inspection at this location within 48 hours

(S

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