Federal Motor Carrier Safety Regulations; Waivers, Exemptions, and Pilot Programs; Public Meeting

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 389

[FHWA Docket No. FHWA-98-4145]

Federal Motor Carrier Safety Regulations; Waivers, Exemptions,

and Pilot Programs; Public Meeting

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Announcement of meeting.

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SUMMARY: The FHWA is announcing a public meeting to solicit information

that will assist the agency in implementing section 4007 of the

Transportation Equity Act for the 21st Century (TEA 21), effective on

June 9, 1998, governing waivers, exemptions, and pilot programs.

Section 4007 amended 49 U.S.C. 31315 and 31136(e) by changing the

agency's authority to grant waivers and exemptions from the Federal

Motor Carrier Safety Regulations (FMCSRs) and to conduct pilot

programs. The new statutory language requires the FHWA, within 180 days

of enactment of TEA 21, to establish procedures by which a person may

request a waiver or an exemption.

The FHWA recognizes the public's interest in how the agency applies

its waiver and exemption authority. For that reason, we are scheduling

a public meeting to obtain comments and ideas from interested persons

to assist the FHWA in implementing section 4007 expeditiously.

DATES: The public meeting will be held on Thursday, August 20, 1998,

between 9 a.m. and 4 p.m. Comments for inclusion in the docket must be

received no later than August 20, 1998.

ADDRESSES: The public meeting will be held in Room 2230 of the DOT

Headquarters Building, 400 Seventh Street, SW., Washington, DC.

Written, signed comments to the docket identified at the beginning of

this document should be sent to: Docket Clerk, U.S. DOT Dockets, Room

PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. All

comments received will be available for examination at the above

address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except

Federal holidays. Persons desiring notification of receipt of comments

must enclose a self-addressed, stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT:

General Information. To request time to be heard and for other

general information, contact Dianne Porter, Office of Motor Carrier

Planning and Customer Liaison, (202) 366-4073.

Specific Rulemaking Information. For information concerning

rulemaking, contact Neill L. Thomas, Office of Motor Carrier Research

and Standards, (202) 366-4009 or Charles E. Medalen, Office of Chief

Counsel, (202) 366-1354, Federal Highway Administration, 400 Seventh

Street, SW., Washington, DC 20590. Office hours are from 7:45 a.m. to

4:15 p.m., e.t., Monday through Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Availability

Internet users can access all comments received by the U.S. DOT

Dockets, Room PL-401, by using the universal resource locator (URL):

http://dms.dot.gov. It is available 24 hours each day, 365 days each

year. Please follow the instructions online for more information and

help.

An electronic copy of this document may be downloaded using a

computer, modem, and suitable communications software from the

Government Printing Office (GPO) electronic bulletin board service

(telephone: 202-512-1661). Internet users may reach the GPO's web page

at: http://www.access.gpo.gov/su_docs/aces/aaces002.html.

Participation and Attendance

All persons who would like to participate in the public meeting

must notify the agency by contacting Dianne Porter by telephone at

(202) 366-4073; E-Mail: [email protected]; or FAX: (202) 366-7298 by

4 p.m., e.t., on Friday, August 14, 1998. All persons attending will be

subject to Federal and DOT workplace security measures. Attendees must

enter the building at the southwest quadrant which is located near the

intersection of Seventh and ``E'' Streets, SW.

Background

The Motor Carrier Act of 1935 gave the FHWA and its predecessor,

the Interstate Commerce Commission (ICC), broad authority to regulate

qualifications and maximum hours of service of employees of, and safety

of operation and equipment of motor carriers (now recodified at 49

U.S.C. 31502), which carried with it implicit authority to waive any

regulation or exempt any entity.

Before TEA 21 (Pub. L. No. 105-178, 112 Stat. 107), the Motor

Carrier Safety Act of 1984 (49 U.S.C. 31136) and the Commercial Motor

Vehicle Safety Act of 1986 (49 U.S.C. 31315) provided the FHWA explicit

authority to waive any part of a regulation, as it applies to a person

or a class of persons, if the action taken was first determined to be

consistent with the public interest and the safe operation of

commercial motor vehicles. Before granting a waiver under these

provisions of law, the FHWA had to publish the proposed waiver and the

reasons for it in the Federal Register for public comment. This was a

considerable limitation on the implicit authority in the 1935 Act

inherited from the ICC in 1967 and presented a difficult test as

interpreted by the U.S. Court of Appeals for the D.C. Circuit in AHAS

v. FHWA, 28 F. 3d 1288 (1994).

[[Page 40388]]

With the enactment of TEA 21, the FHWA may grant a waiver or

exemption that relieves a person from compliance in whole or in part

with a regulation if the FHWA determines that such a waiver or

exemption is likely to achieve a level of safety that is equivalent to,

or greater than, the level of safety that would be achieved absent such

a waiver or exemption. The TEA 21 makes a clear distinction between

``waivers'' and ``exemptions.'' It also requires the agency to

establish procedures for considering requests for exemptions. We will

be developing procedures consistent with section 4007.

Waivers

The new provision gives the FHWA the authority to grant short-term

waivers without public notice and comment. In addition to the safety

criterion that applies to both waivers and exemptions, waivers will

require a ``public interest'' finding. These waivers will only be

granted to particular persons or groups for specific purposes for

periods up to 3 months. The FHWA is interested in receiving comments on

how this new authority should be exercised.

Exemptions

This exemption provision is intended to broaden the agency's

discretion to grant exemptions by overcoming the strict interpretation

in AHAS v. FHWA, supra. As expressed in the legislative history of

section 4007 of TEA 21:

The Court found that the statutory language (49 U.S.C. 31136(e))

required the Secretary to determine, before issuing any waiver, that

no diminution in safety would result, i.e., that it be determined

beforehand there would be absolutely no increase in crashes as a

result of the waivers. To deal with the decision, this section

substitutes the term ``equivalent'' to describe a reasonable

expectation that safety will not be compromised. In the absence of

greater discretion to deal with waivers and exemptions and a new

standard by which to judge them, the Congress would continue to be

the only source to provide regulatory exemptions.

H.R. Conf. Rep. No. 105-550, at 489-490 (1998)

Generally, exemptions issued under this authority may be granted

for only 2 years from date of approval, but are renewable. The agency

has the authority to immediately revoke an exemption if--

(1) The person fails to comply with the terms and conditions of

such exemption;

(2) The exemption has resulted in a lower level of safety than was

maintained before the exemption was granted; or

(3) Continuation of the exemption would not be consistent with the

goals and objectives of 49 U.S.C. chapter 311, Commercial Motor Vehicle

Safety, or 49 U.S.C. 31136, as the case may be.

Within 180 days of enactment of section 4007 and after notice and

comment rulemaking, the FHWA must specify, by regulation, the

procedures by which a person may request an exemption. Such

regulations, at a minimum, must require a person to submit the

following information with each exemption request:

(1) The provisions from which the person requests exemption;

(2) The time period during which the requested exemption would

apply;

(3) An analysis of the safety impacts the requested exemption would

cause; and

(4) The specific countermeasures the person would undertake to

ensure an equivalent or greater level of safety than would be achieved

absent the requested exemption.

In addition to the above requirements, each request for exemption,

each exemption granted, and each denial must be published in the

Federal Register and explain the rationale for the action taken.

Before granting a request for exemption, the FHWA must notify State

safety compliance and enforcement personnel, including roadside

inspectors, and the public that a person will be operating pursuant to

an exemption and any terms and conditions that will apply to the

exemption.

Pilot Programs

Section 4007 of TEA 21 also permits the FHWA to conduct pilot

programs to evaluate alternatives to regulations relating to, or

innovative approaches to, motor carrier, commercial motor vehicle, and

driver safety. Such programs may include exemptions from a current

safety regulation. Before the agency may initiate a pilot program and

before granting exemptions for purposes of the pilot program, the FHWA

must ensure that the safety measures in the project are designed to

achieve a level of safety that is equivalent to, or greater than, the

level of safety that would otherwise be achieved through compliance

with the current safety regulations. The FHWA must also publish, in the

Federal Register, a detailed description of each pilot program,

including the exemptions to be considered, and provide notice and an

opportunity for public comment before the effective date of the

program.

Public Meeting

The FHWA recognizes the public's interest in how the agency applies

its waiver and exemption authority and conducts its pilot programs and

wants to expedite the promulgation of the procedural rules. For that

reason, we are scheduling a public meeting to obtain the comments and

ideas from interested persons to assist the agency in implementing

section 4007 expeditiously. The meeting will be held on Thursday,

August 20, 1998, in Room 2230 of the DOT Headquarters building located

at 400 Seventh Street, SW., Washington, DC. Each presentation will be

limited to 20 minutes. Written comments will be accepted and placed in

the public docket along with a transcript of the meeting. All docket

comments and meeting transcripts will subsequently be available for

review in the DOT Docket Room (Room PL-401, 400 Seventh Street, SW.,

Washington, DC) and on the internet (http://dms.dot.gov).

During the hearing we plan to discuss all relevant issues

concerning the application, consideration, and issuance of waivers and

exemptions, and conducting pilot programs. Issues to be discussed

include, but are not limited to the following:

(1) What procedural rules should be developed? How detailed should

they be?

(2) What conditions should be attached to a waiver or exemption?

(3) How should the waiver or exemption recipients be monitored?

What criteria should be used?

(4) What should be the terms for renewal of a waiver or exemption?

(5) How should State compliance and enforcement personnel be

notified?

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

Issued on: July 23, 1998.

Clinton O. Magby, II,

Acting Associate Administrator for Motor Carriers.

[FR Doc. 98-20228 Filed 7-28-98; 8:45 am]

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