Appendix C to Part 350 - Tolerance Guidelines for Adopting Compatible State Rules and Regulations

1. Introduction, Purpose and Rules of Construction

The goal of the Federal Highway Administration (FHWA) is to encourage all States to ultimately adopt motor carrier safety and hazardous materials transportation rules and regulations identical in all respects to those requirements set forth in Federal laws and regulations, applicable to both interstate and intrastate commerce. Recognizing that there are circumstances unique to each State which may require special attention in that particular State, FHWA has concluded that certain circumstances may warrant limited deviations from the Federal standards where the Federal regulations do not apply.

The purpose of this appendix is to set forth the limits within which a State's deviations to variances in adopting motor carrier safety and hazardous materials rules may extend and still be considered compatible for funding purposes under 49 CFR 350. These limits or tolerances are applicable for this purpose to those State rules and regulations applicable where the U.S. Department of Transportation does not have jurisdiction.

2. Tolerance Guidelines for State Rules and Regulations Where the U.S. Department of Transportation Also Holds Jurisdiction

(a) States shall not be required to adopt 49 CFR parts 398, 399, 107, 171.15, 171.16 and 177.807 as applicable to either interstate or intrastate commerce. A State is not required to adopt 49 CFR part 178 only if the State can still enforce the standards contained therein.

(b) State rules must be applicable to the same extent as the Federal Motor Carrier Safety and Hazardous Materials Regulations except where deviation may be allowed by part 355 of this subchapter and this appendix.

3. Tolerance Guidelines for State Rules and Regulations Where the U.S. Department of Transportation Regulations Do Not Apply

(a) State rules must be applicable to the same extent as the Federal Motor Carrier Safety and Hazardous Materials Regulations except where deviation may be allowed by parts 350 and 355 of this subchapter and this appendix.

(b) States may exempt from all or part of their regulations commercial motor vehicles with a GVWR of 26,000 pounds or less. However, vehicles with a GVWR of 26,000 pounds or less may not be exempted from either the motor carrier safety regulations or hazardous materials regulations if the vehicle is used to transport hazardous materials requiring a placard or if the vehicle is designed to transport more than 15 passengers, including the driver.

(c) States may not exempt from regulation motor carriers based on the type of carriage being performed (i.e., for-hire, private, etc.).

(d) Exemptions granted to certain industries by a State prior to April 1988 and accepted by FHWA may remain valid. Although industry exemptions are strongly discouraged, a State may request and FHWA may approve such an exemption after the State has submitted to the FHWA documentation which will allow evaluation of the following or similar information:

(1) Type and scope of the industry exemption requested;

(2) Type and scope of regulatory exemption requested;

(3) Accident information related to that specific industry—ratio, frequency, comparative figures, etc.;

(4) Percentage of industry affected—number of vehicles, mileage traveled, number of companies involved, etc.;

(5) Inspection information—number of violations per inspection, out-of-service information, etc.;

(6) Other regulations enforced by other State agencies not participating in the MCSAP;

(7) Commodity transported—i.e., hazardous materials, livestock, grain, etc.;

(8) Similar exemptions granted;

(9) Reason exemption is needed;

(10) Projected effect on safety;

(11) The State's economic environment and its ability to compete in foreign and domestic markets.

(e) Regulatory exemptions based on the distance a motor carrier or driver operates from their home terminal are not deemed to be compatible. This prohibition does not apply to those exemptions already contained in the Federal Motor Carrier Safety Regulations nor to the extension of the mileage radius exemption contained in 49 CFR 395.1(e) from 100 to 150 miles.

(f) States are strongly encouraged to apply the identical regulatory and enforcement schemes to both interstate and intrastate carriers as set forth in the Federal Motor Carrier Safety Regulations when regulating drivers’ hours of service. However, certain limited tolerances where the U.S. Department of Transportation's hours of service regulations do not apply are allowed. Specifically, an expansion of the 10-hour driving rule to a 12-hour driving limit, provided that the total period of time spent driving and on duty not driving is not extended to more than 16 hours and an increase in the 70 hour rule to 70 hours in 7 consecutive days or 80 hours in 8 consecutive days will be considered compatible.

(g) Drivers operating not subject to the jurisdiction of the U.S. Department of Transportation may drive if they are at least 18 years old.

(h) States may provide grandfather clauses in their rules and regulations if such exemptions are uniform or in substantial harmony with the Federal standards and provide an orderly transition to full regulatory adoption at a later date.

(i) The States may qualify any driver engaged wholly in intrastate commerce who is adversely affected by current State medical standards, upgraded to be consistent with part 391, even if the States adopted those medical standards in the past. Drivers identified through July 29, 1996, as not meeting the upgraded State standards may also be qualified. Such a driver may remain qualified after July 29, 1996, as long as an examining physician determines during the biennial medical examination that existing medical or physical conditions that would otherwise render the driver not qualified under Federal standards have not significantly worsened or another non-qualifying medical or physical condition has not developed.

(j) States whose rules and regulations do not meet these guidelines may still be considered qualified for participation under § 350.21. However, their formula allocations for basic grant funds will be subject to the limitations of § 350.21 (d).

It should be noted that the FHWA still considers the physical qualification requirements in part 391 to be the minimum requirements that contribute significantly to commercial motor vehicle operational safety. The FHWA continues to encourage States to adopt these minimum standards as their own and to use this grandfathering option judiciously to respond to legitimate hardships. This policy should in no way be interpreted as discrediting the medical standards adopted in part 391.

This guideline will not preclude a State's adoption of or continuation of a waiver program which can be demonstrated to be based on sound medical judgment combined with appropriate performance standards causing no adverse affect on safety.