[Federal Register Volume 62, Number 17 (Monday, January 27, 1997)]
[Proposed Rules]
[Pages 3855-3870]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-1501]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Parts 387, 390, 391, 392, 395, 396, and 397
[FHWA Docket No. MC-97-3]
RIN 2125-AD72
Review of the Federal Motor Carrier Safety Regulations;
Regulatory Removals and Substantive Amendments
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice of proposed rulemaking (NPRM); request for comments.
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SUMMARY: This document requests comments on the intent of the FHWA to
remove, amend, and redesignate certain regulations concerning financial
responsibility; general applicability and definitions; accident
recordkeeping requirements; qualifications of drivers; driving of
commercial motor vehicles; hours of service of drivers; inspection,
repair, and maintenance; and the transportation of hazardous materials.
These regulations are obsolete, redundant, unnecessary, ineffective,
burdensome, more appropriately regulated by State and local
authorities, better addressed by company policy, in need of
clarification, or more appropriately contained in another section. This
action is consistent with the FHWA's Zero Base Regulatory Review and
the President's Regulatory Reinvention Initiative.
DATES: Comments must be received no later than March 28, 1997.
ADDRESSES: All signed, written comments should refer to the docket
number that appears at the top of this document and must be submitted
to HCC-10, room 4232, Office of the Chief Counsel, Federal Highway
Administration, 400 Seventh Street, SW., Washington, DC 20590. All
comments received will be available for examination at the above
address from 8:30 a.m. to 3:30 p.m., e.t., Monday through Friday,
except Federal holidays. Those desiring notification of receipt of
comments must include a self-addressed, stamped postcard/envelope.
FOR FURTHER INFORMATION CONTACT: Mr. Peter C. Chandler, Office of Motor
Carrier Research and Standards, (202) 366-5763, or Mr. Charles E.
Medalen, Office of the Chief Counsel, (202) 366-1354, Federal Highway
Administration, Department of Transportation, 400 Seventh Street, SW.,
Washington, DC 20590. Office hours are from 7:45 a.m. to 4:15 p.m.,
e.t., Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
The first Federal Motor Carrier Safety Regulations (FMCSRs) were
promulgated in 1937. The FMCSRs have been amended many times during the
past 59 years. In September 1992, the FHWA began a comprehensive multi-
year project to develop modern, uniform safety regulations that are up
to date, clear, concise, easier to understand, and more performance
oriented. This project has been named the Zero Base Regulatory Review.
Upon the announcement of the first four public outreach sessions in
the Federal Register on August 18, 1992 [57 FR 37392], the FHWA opened
a public docket, MC-92-33, to allow interested parties who were unable
to attend an outreach session the opportunity to submit comments and
recommendations for improvement of the FMCSRs. After the comment period
closed on April 1, 1993, and the comments were analyzed, the FHWA
published a notice of proposed rulemaking (NPRM) in the Federal
Register on January 10, 1994 [59 FR 1366], and a final rule on November
23, 1994 [59 FR 60319], to remove obsolete or redundant regulations and
appendices from the FMCSRs. On July 28, 1995 [60 FR 38739], the FHWA
published a final rule which made technical corrections to keep the
FMCSRs accurate and up to date. These actions were in response to the
Zero Base Regulatory Review.
This rulemaking would remove, amend, and redesignate other
regulations and would amend the single regulation which was proposed to
be removed in the January 10, 1994, NPRM and was not removed in the
November 23, 1994, final rule. The FHWA requests comments on these
proposed regulatory changes and recommendations from all interested
persons on additional regulatory changes to improve the FMCSRs. The
following is a discussion of the proposed amendments to and deletions
from the FMCSRs arranged by part and section of the FMCSRs except for
divided record authority which is discussed first because the provision
is mentioned in two parts of the FMCSRs.
Divided Record Authority
A motor carrier may maintain driver qualification files, records of
duty status, and receipts for instructions and documents for drivers of
motor vehicles transporting Division 1.1, 1.2, or 1.3 (explosive)
materials at a regional or terminal office if the motor carrier has
requested and been approved by the Regional Director of Motor Carriers
to do so in accordance with Secs. 391.51(g) and 395.1(g). Upon approval
by the Regional Director of Motor Carriers, the current policy of the
FHWA is, generally, to allow a motor carrier to maintain records and
documents at only one location per State. Otherwise, records required
by subchapter B of title 49, Code of Federal Regulations, must be
maintained at a motor carrier's principal place of business except for
inspection, repair, and maintenance records which must be maintained
where the motor vehicle is either housed or maintained, and the records
of a motor carrier's alcohol and controlled substances use and testing
program which must be made available for inspection at the principal
place of business within two business days after a request has been
made by an authorized representative of the FHWA. On November 17, 1993
[58 FR 60734], the FHWA issued regulatory guidance that allows
inspection, repair, and maintenance records to be maintained at a
location of the motor carrier's choice if a motor vehicle is not housed
or maintained at a single location, but these records must be made
available within two business days upon request of the FHWA in all
cases (Sec. 396.3, question 5). At the same time, the
[[Page 3856]]
FHWA issued regulatory guidance that allows supporting documents for
records of duty status and time records for 100 air-mile radius drivers
to be maintained at locations other than the principal place of
business provided these documents and records can be forwarded to the
principal place of business within two business days upon request by a
special agent or authorized representative of the FHWA (Sec. 395.8,
question 10 and Sec. 395.1, question 8, respectively). Thus, the FMCSRs
and the regulatory guidance establish dissimilar recordkeeping
requirements related to the location of required records. The FHWA
proposes to establish uniform recordkeeping requirements related to the
location of required records.
Specifically, the FHWA proposes to allow motor carriers with
multiple terminals or offices to maintain all records required by
subchapter B at regional offices or driver work-reporting locations
provided records can be produced at the principal place of business or
other specified locations within 48 hours upon request by a special
agent or authorized representative of the FHWA. Saturdays, Sundays, and
Federal holidays would be excluded from the computation of the 48-hour
period of time. The FHWA believes that 48 hours is a reasonable period
of time to produce records at the principal place of business in
consideration of the availability of overnight mail service and
facsimile and other electronic transmission equipment. Motor carriers
with a single place of business would not be allowed 48 hours to
produce records when requested. A motor carrier with multiple terminals
or offices would be required to make its records maintained at a given
location available for inspection immediately upon request by an FHWA
representative who is present at that location. For motor carriers with
multiple terminals or offices, a request to forward files, documents,
and records maintained at driver work-reporting locations to the
principal place of business or other specified location would generally
be limited to a specific sample or selection chosen by the FHWA
representative. However, all files, documents, and records maintained
at regional or terminal offices or driver work-reporting locations may
be requested to be forwarded to the principal place of business or
other specified location in some cases.
In an effort towards uniformity, the FHWA proposes to make the
allowances and limitations for all recordkeeping requirements in
subchapter B similar. The FHWA believes there is no sound reason to
allow some, but not all, required records to be maintained at locations
other than the principal place of business. One thrust of the Zero Base
Regulatory Review is to make the FMCSRs more performance oriented to
provide motor carriers with increased flexibility in achieving
compliance. The proposed removal of divided record authority is a good
example of this goal. The FHWA proposes to eliminate divided record
authority by removing Secs. 391.51(g) and 395.1(g), amending
Secs. 391.51(f), 395.8(k)(1), and 397.19(b), and by codifying a
flexible rule on record retention for motor carriers with multiple
terminals or offices in Sec. 390.29. The FHWA also proposes to amend
the definition of principal place of business in Sec. 390.5 to mean a
single location where records required by parts 382, 387, 390, 391,
395, 396, and 397 of this subchapter will be made available for
inspection within 48 hours after a request has been made by a special
agent or authorized representative of the FHWA.
Part 387--Minimum Levels of Financial Responsibility for Motor Carriers
Part 387 prescribes the minimum levels of financial responsibility
required to be maintained by motor carriers of property and passengers.
The purpose of these regulations is to ensure that motor carriers
maintain an appropriate level of financial responsibility for motor
vehicles operated on public highways.
Subpart A--Motor Carriers of Property
Definitions
For-Hire Carriage
There has been confusion within the motor carrier and insurance
industries about whether a for-hire motor carrier of a commodity which
is exempt from the economic regulations of the Interstate Commerce
Commission (ICC), whose remaining functions have now been divided
between the Surface Transportation Board of the Department of
Transportation and the FHWA, is subject to the requirements in part
387. Under the statutory authority provided by 49 U.S.C. 31139, the
Secretary of Transportation is required to prescribe regulations to
require minimum levels of financial responsibility for the
transportation of property for compensation by motor vehicles in
interstate commerce. An exempt commodity motor carrier of property is
subject to part 387 when operating a motor vehicle with a gross vehicle
weight rating of 10,000 pounds or more in interstate or foreign
commerce. The FHWA, therefore, proposes to amend the definitions in
Sec. 387.5 to specify that For-hire carriage means transportation of
property by a common, contract, or exempt commodity motor carrier of
property.
Motor Carrier
The FHWA proposes to amend the definition of motor carrier to a
for-hire or private motor carrier of property in order to make it clear
that the term includes an exempt commodity motor carrier of property.
Subpart B--Motor Carriers of Passengers
Applicability
On November 17, 1993 [58 FR 60734], the FHWA issued regulatory
guidance that addressed the applicability of the financial
responsibility requirements to school bus transportation (Sec. 387.27,
question 4). Specifically, for-hire contractors providing
transportation of preprimary, primary, and secondary students for
extracurricular trips organized, sponsored, and paid for by the school
district are not subject to the financial responsibility requirements.
The FHWA proposes to codify this regulatory guidance in
Sec. 387.27(b)(4).
Definitions
For-Hire Carriage
On November 17, 1993 [58 FR 60734], the FHWA issued regulatory
guidance which clarified the meaning of for-hire passenger
transportation (Sec. 390.5, question 8). To codify this interpretative
guidance, the FHWA proposes to amend the definition of For-hire
carriage in Sec. 387.29. The definition will make it clear that the
term means passenger transportation which is generally available to the
public at large and is performed for a commercial purpose by a motor
carrier which is directly or indirectly compensated, monetarily or
otherwise, for the transportation service provided.
Motor Carrier
The FHWA proposes to amend the definition of motor carrier to make
it clear that the term includes a for-hire motor carrier of passengers
which was not subject to economic regulation by the ICC. Motor carrier
would be amended to mean a person providing for-hire carriage.
Motor Common Carrier
Motor Contract Carrier
The FHWA proposes to remove the terms motor common carrier and
motor contract carrier because the terms would not be used in part 387
after the
[[Page 3857]]
amendment of the definition of motor carrier proposed here.
Part 390--Federal Motor Carrier Safety Regulations; General
Part 390 establishes general applicability, definitions, general
requirements, and information pertaining to motor carriers and drivers
subject to the FMCSRs.
Definitions
Accident
The FHWA proposes to clarify the meaning of the term ``public
road'' in the definition of accident by the addition of a parenthetical
phrase. The term ``public road'' is inclusive of privately owned roads
or way which are accessible to the general public such as those within
and around stadiums, arenas, shopping malls, residential developments,
private schools, parking garages and lots, etc. Therefore,
accessibility to the public, not the identity of the owner, is the
major factor which determines whether a road or way is public. The FHWA
proposes to add the phrase ``(inclusive of privately owned way which
are accessible to the general public)'' after the term ``public road''
in the definition of accident in Sec. 390.5.
The current definition of the term accident would be amended by
deleting paragraph (2)(iii), an occurrence in the course of the
operation of a passenger car or a multipurpose passenger vehicle (as
defined in 49 CFR 571.3) by a motor carrier that is not transporting
passengers for hire or hazardous materials of a type and quantity that
require the motor vehicle to be marked or placarded in accordance with
49 CFR 177.823. A passenger car or a multipurpose passenger vehicle is
limited by the definitions in Sec. 571.3 to a motor vehicle designed
for carrying 10 persons or less. The term accident is limited by
definition to an occurrence involving a commercial motor vehicle.
``Commercial motor vehicle'' is limited by the definition in Sec. 390.5
to a motor vehicle with a gross vehicle weight rating or gross
combination weight rating of 10,001 or more pounds, a motor vehicle
designed to transport more than 15 passengers including the driver, or
a motor vehicle used to transport hazardous materials in a quantity
requiring placarding. Therefore, paragraph (2)(iii) would only apply to
two types of motor vehicles involved in an accident: (1) A motor
vehicle which has a gross vehicle weight rating or a gross combination
weight rating of 10,001 or more pounds, is designed to carry 10 persons
or less, and is involved in the private transportation of passengers;
and (2) a passenger car or a multipurpose passenger vehicle operated by
a motor carrier that is subject to the accident recordkeeping
requirements in Sec. 390.15. The exclusion of these types of motor
vehicles from the definition of the term accident is unnecessary. The
FHWA proposes to remove paragraph (2)(iii) from the definition of the
term accident.
Commercial Motor Vehicle
The definitions for CMV in Secs. 383.5 and 390.5 are written
differently in terms of designed passenger capacity and the
transportation of hazardous materials, but they have the same meaning.
There is no reason for two definitions that have no functional
difference. The FHWA, therefore, proposes to amend paragraphs (b) and
(c) of the definition of CMV in Sec. 390.5 to read the same as
paragraphs (c) and (d), respectively, of the definition of CMV in
Sec. 383.5.
Interstate Commerce
The FHWA proposes to add language to the definition of the term
interstate commerce to clarify that transportation within a single
State constitutes interstate commerce if such transportation is the
continuation of a through movement which has originated from outside
the State or is destined to go outside the State. Whether
transportation of property qualifies as interstate commerce depends on
the essential character of the movement which is determined by the
shipper's fixed and persisting intent at the time of shipment. This
intent is ascertained by examining all of the facts and circumstances
surrounding the transportation. Consequently, the motor carrier that
performs an intrastate portion of an interstate movement is engaged in
interstate commerce.
Regularly Employed Driver
The FHWA proposes to replace the term regularly employed driver in
Sec. 390.5 with the term single-employer driver because the FHWA
believes that the latter term is more consistent with the intended
meaning. In addition, the FHWA proposes to clarify that this proposed
term includes a driver who drives a CMV for only one motor carrier on
an intermittent, casual, or occasional basis.
Accident Recordkeeping Requirements
Section 390.3(f) provides general exemptions from the FMCSRs for
certain types of operations and transportation. Section 390.3(f)(2)
exempts from the FMCSRs, unless otherwise specifically provided,
transportation performed by the Federal government, a State, any
political subdivision of a State, or an agency established under a
compact between States that has been approved by the Congress of the
United States. However, Sec. 390.3(f)(2) does specifically make the
recordkeeping requirements of Sec. 390.15(b) applicable to these
governmental entities when engaged in the interstate charter
transportation of passengers. The information required to be maintained
by Sec. 390.15(b) comprises the accident register. The only other
regulations in subchapter B of title 49 which may be applicable to a
government entity engaged in the interstate charter transportation of
passengers are the Controlled Substances and Alcohol Use and Testing
standards in part 382 and the CDL standards in part 383. It makes
little sense to require government entities engaged in the interstate
charter transportation of passengers to maintain an accident register
because these entities are not subject to FHWA compliance reviews and
do not receive accident countermeasure assistance. Therefore, the FHWA
proposes to remove this recordkeeping requirement from
Sec. 390.3(f)(2).
Part 391--Qualifications of Drivers
The primary purpose of part 391 is to ensure that operators of CMVs
meet minimum physical qualifications and possess the necessary
knowledge, skills, and abilities to operate CMVs safely.
Qualification of Drivers
Driver qualification standards are contained in Sec. 391.11 of the
FMCSRs. These standards are minimum requirements that a person must
meet to be qualified to drive a CMV in interstate commerce. The driver
qualification standards are designed to protect the safety of the
motoring public by not permitting a person to drive a CMV who lacks the
essential abilities to perform his/her duties safely.
Paragraphs (4) and (5) in Sec. 391.11(b) require a driver to be
able to determine whether the cargo he/she transports has been properly
distributed and secured and to be familiar with methods and procedures
for securing cargo in or on the CMV that he/she drives. Section
383.111(d) requires CMV operators to have knowledge of the principles
and procedures for the proper handling of cargo in order to obtain a
CDL. Section 392.9(a) prohibits a person from driving a CMV and
prohibits a motor carrier from requiring or permitting a person to
drive a CMV unless the CMV's cargo is properly distributed and
adequately
[[Page 3858]]
secured. The FHWA, therefore, proposes to remove Secs. 391.11(b)(4) and
(5) because these paragraphs are redundant.
The FHWA proposes to remove the completion and furnishing of an
application for employment as a CMV driver as driver qualification
standards. The FHWA believes that the completion and furnishing of an
employment application are not driver qualification standards, but
rather necessary and important actions which enable motor carriers to
evaluate the competence of applicants for CMV driver positions. The
FHWA believes that the failure of a CMV driver to complete and furnish
an application to his/her employing motor carrier should not result in
the CMV driver being unqualified. The FHWA, therefore, proposes to
remove Sec. 391.11(b)(11). This is not intended to affect the
responsibility of CMV drivers to complete and furnish the motor
carriers that employ them with employment applications containing
certain information as required by Sec. 391.21.
Record of Violations
In 1994, the FHWA proposed to remove the requirements related to
the record of violations in 49 CFR 391.27 and 391.51(b)(4) [59 FR 1366,
January 10, 1994]. In comments to this proposal, a recommendation was
made to replace these requirements with similar ones involving an
annual inquiry addressed to the State licensing agency regarding
drivers' driving records. The FHWA took no action on the record of
violations provisions when the final rule was adopted (59 FR 60319,
November 23, 1994), but promised further evaluation of the comments.
In December 1994, the National Transportation Safety Board
recommended (H-94-12) that the FHWA ``immediately revise the Federal
Motor Carrier Safety Regulations to require that motor carriers check a
driver's record, both initially and at least annually, with State
licensing agencies where the driver works and is licensed.'' The
initial inquiry into a driver's driving record to the State licensing
agency is already required by Sec. 391.23.
The FHWA now proposes to replace the requirements related to the
record of violations with similar requirements involving an annual
inquiry to the State licensing agency regarding drivers' driving
records. Interested persons are invited to send comments concerning the
paperwork burden of this proposal to the Office of Management and
Budget (OMB). See the Paperwork Reduction Act section below under
Rulemaking Analyses and Notices for further information.
The sections to be removed or amended by this proposal include
Secs. 391.11(b)(8); 391.25; 391.27; 391.51(b)(3) and (b)(4);
391.51(h)(2) and (h)(3); 391.63(a)(3) and (a)(4); 391.67(a); and
391.68(a). This replacement would create a more effective means for the
motor carrier to obtain information about its drivers' moving
violations during the previous 12 months because it does not rely upon
the memory or honesty of the driver. This amendment would further
highway safety by requiring the motor carrier to better verify that its
drivers have not lost their driving privileges and have not been
otherwise disqualified to drive a CMV. It would also provide a way for
a motor carrier to check whether its drivers who are subject to the CDL
standards have reported their convictions, disqualifications, and
license suspensions, revocations, and cancellations as required by
Secs. 383.31(a) and 383.33. Many motor carriers or their insurance
providers already make such inquiries at least once per year, which is
good evidence that the technique is useful in a safety program.
Road Test
Section 391.31 prohibits a driver from driving a CMV unless he/she
has successfully completed a road test which is administered by the
prospective employing motor carrier. A motor carrier may accept a
driver's license as equivalent to a road test if such driver-applicant
completed a road test in the type of CMV that the motor carrier intends
to assign to him or her, as part of the licensing process. A motor
carrier may also accept a certification of road test issued to the
driver-applicant within the preceding three years. In any event, a
driver-applicant must demonstrate the ability to safely operate the
type of CMV to which he/she will be assigned.
In order to obtain a CDL, a driver must pass a driving skills test
in a CMV which is comparable to the CMV that the driver expects to
operate. At the discretion of a State, either a driving record and
previous passage of an acceptable driving skills test or a driving
record in combination with certain driving experience may be
substituted for the driving skills test (49 CFR 383.77). In all cases,
a driver must demonstrate the ability to operate a certain type of CMV
safely.
The road test requirements in part 391 are redundant for those
driver-applicants who are required to possess a commercial driver's
license or who successfully completed a road test, as part of the
process of obtaining some other type of license or as required by an
employer, in a CMV comparable to the vehicle they own or will drive.
Motor carriers are in a better position than the FHWA to decide whether
a road test remains an effective method for determining whether driver-
applicants who are subject to the driver qualification standards in
part 391, but who are not required to possess a commercial driver's
license, can safely operate their CMVs. The choice should be made by
the prospective employer based on the available information, such as
the nature and extent of a driver-applicant's driving experience; the
type of driver's license that the driver-applicant possesses; the
requirements that the driver-applicant had to meet for such license to
be issued; the number and severity of convictions for violations of
motor vehicle laws; any denial, revocation, or suspension of any
driver's license; and information provided by previous employers. Such
information must be obtained by the new employer [49 CFR 391.21 and
391.23]. The removal of the road test would not affect the requirement
under 49 CFR 391.11(b)(3) that a driver be able to operate the type of
CMV safely that he or she drives by reason of experience, training, or
both.
The removal of the requirements related to the road test would
reduce the paperwork burden upon motor carriers and make the driver
qualification requirements more performance oriented. One thrust of the
Zero Base Regulatory Review is to allow motor carriers more flexibility
in making their operations safe and achieving compliance.
Motor carriers that want to continue giving road tests to their
driver-applicants might prefer the retention of a regulatory
requirement. This is not sufficient reason to retain the road test
provisions. Motor carriers have long been allowed to require or enforce
more stringent safety or health standards than those required by the
FMCSRs [49 CFR 390.3(d)].
The FHWA proposes to remove the requirements related to the road
test. The sections affected by this proposed removal include
Secs. 391.11(b)(10), 391.31, 391.33, 391.49(d)(5), 391.51(c)(4),
391.51(d)(2), 391.61, 391.67(c), 391.68(c), 391.69, and 391.73. The
FHWA, however, proposes to retain the requirement in Sec. 391.49(d)(5)
that a road test be administered to a driver who applies for a waiver
of physical disqualification. The FHWA believes that the agency should
consider only those driver applicants who have successfully completed a
road test
[[Page 3859]]
administered by the motor carrier co-applicant or other appropriate
person, for a waiver of physical disqualification.
Driver Qualification Files
A driver qualification file contains all required documentation
that a driver is qualified to drive a CMV in interstate commerce. These
recordkeeping requirements facilitate enforcement of the driver
qualification standards by enabling FHWA officials to check compliance
quickly. Section 391.51(b)(5) also requires a driver qualification file
to include any other matter which relates to the driver's
qualifications or ability to drive a CMV safely. The FMCSRs offer no
examples or further clarification of what these additional records or
documents might include. A recordkeeping requirement for a nonspecific
record is not necessary. Furthermore, the rules in part 391 establish
minimum qualifications for CMV drivers, and motor carriers are not
prohibited from establishing more stringent driver qualification
standards. In any case, a motor carrier is permitted to maintain any
document in a driver qualification file regardless of the document's
relation to driver qualifications. The FHWA proposes to remove
Sec. 391.51(b)(5) because it is unclear and unnecessary.
Section 391.51 includes exemptions for several types of drivers who
are covered more broadly in Subpart G--Limited Exemptions. The driver
qualification file requirements would be easier to understand if
Sec. 391.51 contained only the general requirements. A motor carrier
could easily determine the driver qualification requirements for a
specific driver by comparing Sec. 391.51 with subpart G. The FHWA
proposes to amend Sec. 391.51 to exclude all but the general
requirements for driver qualification files. This proposal integrates
Sec. 391.51(c) into Sec. 391.51(b) and removes paragraphs (d) and (e)
of Sec. 391.51.
Intermittent, Casual, or Occasional Drivers
Section 391.63 contains a limited exemption from certain driver
qualification requirements for a motor carrier which employs an
intermittent, casual, or occasional driver. That term is defined in
Sec. 390.5 as a driver who in any period of seven consecutive days is
employed or used by more than a single motor carrier. A driver who is
employed by a single motor carrier meets the definition of a regularly
employed driver in Sec. 390.5 even though he or she might work only
intermittently or occasionally. In an effort to promote clarity, the
FHWA proposes to replace the confusing term intermittent, casual, or
occasional driver in Sec. 390.5 and part 391 with the term multiple-
employer driver.
Drivers Furnished by Other Motor Carriers
Section 391.65 contains a limited exemption from the generally
applicable driver qualification requirements for a motor carrier that
employs a driver who was furnished by another motor carrier if the
furnishing motor carrier certifies in writing that the driver is fully
qualified to drive a CMV. This written statement, commonly called a
qualification certificate, must be substantially in accordance with the
form in Sec. 391.65(a)(2). A motor carrier which certifies a driver's
qualification is required under Sec. 391.65(c)(2) to recall the
unexpired certificate carried by the driver immediately upon learning
that the driver is no longer qualified under the regulations in part
391. It is unreasonable to require a motor carrier to recall a
qualification certificate because the carrier's only option is to
request the driver to return the certificate. If the driver is
uncooperative or no longer employed by the motor carrier, there is no
obvious means of securing the return of a certificate of qualification.
The FHWA, therefore, proposes to remove Sec. 391.65(c)(2). Instead,
a new version of Sec. 391.65(c) would declare that the qualification
certificate is no longer valid when the driver leaves the employment of
the motor carrier that issued it or is no longer qualified under part
391. The FHWA also proposes to require that a motor carrier which
employs a driver furnished by another motor carrier contact the motor
carrier which issued the qualification certificate to verify its
validity. This would prevent a driver from obtaining employment through
use of an invalid or false qualification certificate. The FHWA does not
propose to require a motor carrier to make a written record of this
contact. This is in not intended to lessen the motor carrier's
responsibility to ensure that the driver is fully qualified under the
regulations in part 391. Interested persons are invited to send
comments concerning the burden of this proposed requirement to obtain
information, to the OMB. See the Paperwork Reduction Act section below
under Rulemaking Analyses and Notices for further information.
Drivers Operating in Hawaii
Section 391.69 provides a limited exemption from certain driver
qualification requirements for drivers who have been regularly employed
by motor carriers operating in the State of Hawaii continuously since
before April 1, 1975. Section 391.61 provides a limited exemption from
the same requirements for drivers who have been regularly employed by
motor carriers continuously since before January 1, 1971. For a motor
carrier operating in the State of Hawaii, there is considerable overlap
between these exemptions. The only difference is that drivers in Hawaii
need 4\1/4\ fewer years of continuous employment to qualify for the
exemption. Since very few, if any, Hawaiian drivers fall into this
category, Sec. 391.69 is largely redundant and the FHWA proposes to
remove it. The FHWA requests comments from motor carriers operating in
the State of Hawaii as to whether they employ a substantial number of
drivers who have been regularly employed for a continuous period which
began before April 1, 1975, but on or after January 1, 1971.
Intrastate Drivers of Vehicles Transporting Class 3 Combustible Liquids
Section 391.71 contains a limited exemption from certain driver
qualification requirements for drivers who have been regularly employed
by motor carriers continuously since July 1, 1975, and who drive a CMV
transporting Class 3 combustible liquids in intrastate commerce. On
January 24, 1974 [39 FR 2768], Hazardous Materials Docket No. HM-102
established the term combustible liquids which resulted in drivers and
motor vehicles engaged in intrastate operations performed by interstate
motor carriers becoming subject to the FMCSRs for the first time.
Several commenters requested that a permanent exemption be granted from
the requirements of part 391, but provided no data in support thereof.
Nonetheless, a limited exemption was provided to address the
commenters' concerns and minimize the paperwork burden upon the
affected intrastate operations of interstate motor carriers, which
generally include the local delivery of fuel oil and heating oil.
Section 397.2, adopted in 1971, requires that a motor carrier or
other person to whom part 397 applies comply with the FMCSRs (49 CFR
parts 390 through 397) when the person is transporting hazardous
materials requiring the motor vehicle to be marked or placarded.
Section 397.2 was issued jointly under the Explosives and Other
Dangerous Articles Act (EODAA) [formerly 18 U.S.C. 831-835] and the
Interstate Commerce Act (ICA) [now 49 U.S.C. 31502]. The scope of the
EODAA was considered to be broader than that of the ICA and to reach
the intrastate
[[Page 3860]]
operations of an interstate motor carrier. The EODAA was repealed by
the Hazardous Liquid Pipeline Safety Act of 1979 (HLPSA) [49 U.S.C.
60101-60125]. The provisions of the EODAA which were in part the
authority for Sec. 397.2 were not continued in the HLPSA.
Section 177.804 of the Hazardous Materials Regulations (HMRs)
requires motor carriers and other persons subject to 49 CFR part 177 to
comply with the FMCSRs (49 CFR parts 390 through 397) to the extent
those regulations apply. Section 177.804 was issued under the authority
of the Hazardous Materials Transportation Act (HMTA) [49 U.S.C. 5101 et
seq.] as a final rule without notice or opportunity for comment. The
purpose of the issuance of Sec. 177.804 was to make civil penalties and
other enforcement tools of the HMTA applicable to hazardous materials
carriers already subject to the FMCSRs. The issuance of Sec. 177.804
merely reissued, under new authority, regulations already in effect.
Section 177.804 incorporated the FMCSRs by reference; therefore, the
applicability and preemptive effects of the FMCSRs, as reissued under
the HMTA, were not changed.
Consequently, no authority exists to support application of parts
390 through 399 of the FMCSRs to a motor carrier or driver who operates
a CMV transporting hazardous materials in intrastate commerce whether
or not the motor carrier has an interstate operation. Therefore, the
FHWA proposes to remove Sec. 391.71. However, the Controlled Substances
and Alcohol Use and Testing standards in part 382 and the CDL standards
in part 383 apply to drivers and their employers who operate CMVs
transporting hazardous materials in a quantity requiring placarding, in
intrastate commerce. The financial responsibility standards in part 387
continue to apply to motor carriers operating motor vehicles
transporting certain types of hazardous materials, hazardous
substances, and hazardous waste in certain types of containment
systems, in intrastate commerce.
Private Motor Carrier of Passengers (Business)
Section 391.73 contains a limited exemption from certain driver
qualification requirements for a driver who has been a regularly
employed driver of a private motor carrier of passengers (business)
since July 1, 1994, and continues to be so employed by that motor
carrier. With the proposed removal of Secs. 391.69 and 391.71, the
limited exemptions in subpart G of part 391 would appear in a logical
sequence if the limited exemption for drivers of private motor carriers
of passengers (business) immediately followed the limited exemption for
drivers of private motor carriers of passengers (nonbusiness) in
Sec. 391.68. The FHWA proposes to move Sec. 391.73 to Sec. 391.69.
Part 392--Driving of Motor Vehicles
The primary purpose of part 392 is to ensure that CMVs are driven
in a safe manner.
Equipment, Inspection and Use
Section 392.7 prohibits a CMV from being driven unless the driver
is satisfied that nine specified parts and accessories are in good
working order. Section 396.13(a) requires a driver to be satisfied that
the CMV is in safe operating condition before driving the CMV. One of
these duplicative sections should be removed. The FHWA believes that
this requirement is more appropriately contained in Sec. 396.13(a)
because it addresses equipment condition more than safe driving.
Section 392.7 also requires a driver to use or make use of the same
nine specified parts and accessories when and as needed. All of these
parts and accessories including the service brakes, tires, horn,
windshield wipers, etc. are essential vehicular components which
drivers necessarily use. It is redundant for the FMCSRs to require
their use by a driver when and as needed. Therefore, the FHWA proposes
to remove Sec. 392.7.
Emergency Equipment; Inspection and Use
Part 393 prohibits the operation of a CMV that is not equipped in
accordance with the requirements and specifications therein. Section
393.95 requires all power units to be equipped with specific emergency
equipment. Section 392.8 prohibits a CMV from being driven unless the
driver is satisfied that the emergency equipment required by
Sec. 393.95 is in place and ready for use. Section 396.11 requires a
driver to prepare a driver vehicle inspection report (DVIR), which
covers emergency equipment, at the completion of each day's work on
each motor vehicle operated. If the emergency equipment is found to be
defective or missing, this must be shown on the DVIR. Section 396.13
requires the next driver to review the last DVIR and sign it, if
defects or deficiencies were noted by the previous driver, to
acknowledge that the DVIR was reviewed and that there is a
certification that the required repairs have been completed.
Section 392.8 also requires a driver to use or make use of the
emergency equipment required by Sec. 393.95 when and as needed. Section
393.95 requires all power units to be equipped with a fire extinguisher
(except a driven unit in a driveaway-towaway operation), a spare fuse
or other overload protection device if the devices used cannot be
reset, for each kind and size used, and one of several combinations of
warning devices depending on the date the power unit was equipped with
the warning devices. Section 392.22(b) stipulates how warning devices
must be placed when a CMV is stopped upon the traveled portion or
shoulder of a highway and, therefore, covers how warning devices must
be used when needed. It is readily evident to a driver when the use of
a fire extinguisher or spare fuse would be necessary in an emergency.
It is unnecessary for the FMCSRs to impose a general requirement upon
drivers to use or make use of a fire extinguisher or spare fuse when
and as needed. The FHWA proposes to remove Sec. 392.8 because the
requirement that emergency equipment be in place, ready for use, and
used when and as needed is adequately addressed by other sections of
the FMCSRs.
Drivers of Trucks and Truck Tractors
Section 392.9(b) requires a driver of a truck or truck tractor to
assure himself/herself that the motor vehicle's cargo is properly
loaded and secured before driving, inspect the motor vehicle's cargo
and its securement within the first 25 miles of driving, reexamine the
cargo and its securement at a change of duty status or after 3 hours or
150 miles of driving, and make any necessary adjustments to the cargo
or load securing devices. These requirements are highly prescriptive
and enforcement of them is laborious and burdensome. The regulations
for protection against shifting or falling cargo are contained in
subpart I of part 393. Section 392.9(a) prohibits a CMV from being
driven unless the CMV's cargo is properly distributed and adequately
secured in accordance with subpart I of part 393. Section 392.9(b) is
therefore unnecessary. The FHWA proposes to remove Sec. 392.9(b) to
provide motor carriers the flexibility to develop their own policies
and methods to ascertain that a CMV's cargo is properly distributed and
adequately secured in accordance with subpart I of part 393. The
proposed removal of Sec. 392.9(b) would not lessen the responsibility
of a motor carrier or driver to ensure a CMV's cargo is distributed and
secured in a suitable manner to prevent shifting and falling.
Section 392.9(c)(1) prohibits a person from driving a bus unless
all standees
[[Page 3861]]
are rearward of the standee line. This prohibition would be more
appropriately located in subpart G, Prohibited Practices, of part 392
because it addresses unsafe driving more than safe loading. The FHWA
proposes to move Sec. 392.9(c)(1) to Sec. 392.62 and entitle the
section ``Driving of buses, standee line or bar.''
Section 392.9(c)(2) prohibits a person from driving a bus unless
all aisle seats in a bus conform to the requirements of Sec. 393.91.
Section 393.91 requires aisle seats in a bus to be securely fastened to
the motor vehicle and to automatically fold and leave a clear aisle
when unoccupied. Section 393.1 prohibits a CMV from being operated
unless it is equipped in accordance with the requirements and
specifications contained therein. The FHWA proposes to remove
Sec. 392.9(c)(2) because it is redundant.
Section 392.9(c)(3) prohibits a person from driving a bus unless
the baggage, freight, and express on the bus is stowed and secured in a
safe manner. The FHWA proposes to move Sec. 392.9(c)(3) to
Sec. 392.9(b).
Hearing Aid To Be Worn
Section 392.9b requires a driver whose hearing meets the minimum
standards in Sec. 391.41(b)(11) only when wearing a hearing aid to wear
an operating hearing aid while driving and possess a spare power
source. However, if a driver meets the hearing standards only when
wearing a hearing aid, Sec. 391.43(g)(1) requires the medical examiner
to mark the appropriate place, or to write in the statement ``Qualified
only when wearing a hearing aid,'' on the medical examiner's
certificate. Therefore, a driver who meets the hearing standards only
when wearing a hearing aid is not medically qualified to drive a CMV in
interstate commerce when not wearing a hearing aid. A driver who is
subject to and does not meet the medical qualification standards is
prohibited from driving a CMV in interstate commerce.
Section 392.9b is duplicative of the driver qualification
requirements in part 391. The FHWA wants to avoid repetition in the
FMCSRs. In addition, the carriage of extra equipment, including spare
power sources for hearing aids, to ensure against possible
contingencies is best addressed by company policy. The removal of
Sec. 392.9b would not affect the requirement that a driver comply with
the hearing standards when operating a CMV in interstate commerce. The
FHWA proposes to remove Sec. 392.9b.
Railroad Grade Crossing; Stopping Required
Section 392.10 requires the driver of a cargo tank motor vehicle or
a CMV transporting passengers, chlorine, or hazardous materials
requiring placarding or marking to stop the CMV and ascertain that no
train is approaching before crossing a railroad grade. Section 392.10
also prohibits a driver of these types of CMVs from shifting gears when
crossing the tracks. The National Transportation Safety Board (NTSB)
recommended that the FHWA amend Sec. 392.10 to require CMVs
transporting hazardous materials requiring placarding to stop prior to
crossing a railroad grade with a warning device only when the device is
activated to warn drivers of an approaching train. A warning device
includes a functioning highway traffic signal, gate, or a device that
uses sound or light(s) to warn drivers of an approaching train. This
recommendation would make Sec. 392.10 consistent with the Uniform
Vehicle Code. It is not necessary for CMVs to stop immediately prior to
crossing a railroad grade when a warning device is present and not
activated. The FHWA, therefore, proposes to amend Sec. 392.10 to
implement the NTSB's recommendation.
Drawbridges; Slowing Down of Commercial Motor Vehicles
Section 392.13 requires a CMV that is approaching a drawbridge to
be driven at a rate of speed which will permit the CMV to be stopped
before reaching the lip of the draw and to proceed only when the draw
is completely closed. State and local law enforcement officers are
responsible for enforcing regulations regarding stopping and slowing of
CMVs approaching drawbridges. Section 392.13 is not easily enforced by
special agents of the FHWA and is more appropriately addressed by State
and local traffic laws. The FHWA proposes to remove Sec. 392.13.
Hazardous Conditions; Extreme Caution
Section 392.14 requires a CMV driver to exercise extreme caution
and reduce speed when hazardous conditions adversely affect visibility
and traction. If driving conditions become sufficiently dangerous, a
CMV driver must discontinue operation of the CMV until driving
conditions improve to the point in which the CMV can be safely
operated. Whenever compliance with these requirements increases hazard
to passengers, however, the CMV may be operated to the nearest point
where the safety of the passengers is assured.
These requirements are fundamental safe driving practices and are
likely incorporated into the policy manuals of most motor carriers. In
addition, most, if not all, State and local authorities prohibit the
driving of a motor vehicle at a speed during adverse driving conditions
which endangers the safety of the motoring public, even though such
speed is at or below the posted speed limit. These requirements are
already and more appropriately monitored and enforced by State and
local authorities. The FHWA proposes to remove Sec. 392.14.
Required and Prohibited Use of Turn Signals
Section 392.15 contains requirements and prohibitions regarding the
use of turn signals which are already and more appropriately monitored
and enforced by State and local authorities. The FHWA proposes to
remove Sec. 392.15.
Unattended Vehicles; Precautions
Section 392.20 prohibits a CMV from being left unattended until the
parking brake has been securely set and all reasonable precautions have
been taken to prevent movement. The parking and attendance of a CMV
containing no hazardous materials are more appropriately monitored and
enforced by State and local authorities. The FHWA proposes to remove
Sec. 392.20.
Emergency Signals; Stopped Vehicles
Section 392.22(b) stipulates how warning devices must be placed
when a CMV is stopped on the traveled portion or shoulder of a highway.
The general rule requires that three warning devices be placed in
various directions and at various approximate distances from the
stopped CMV. One warning device must be placed at the traffic side of
the stopped CMV within 10 feet of the front or rear of the CMV. Another
warning device must be placed approximately 100 feet from the stopped
CMV in the center of the occupied traffic lane or shoulder in the
direction of approaching traffic. A third warning device must be placed
approximately 100 feet from the stopped CMV in the center of the
occupied lane or shoulder in the opposite direction from the other two
warning devices.
The warning devices are often not placed at the correct locations.
All three warning devices are often incorrectly placed behind the
stopped CMV in the direction toward approaching traffic. The FHWA
proposes to amend the regulatory language to promote better
understanding of the requirements.
The warning devices are often not placed at the correct distances
from the
[[Page 3862]]
stopped CMV, in part because of the inability of drivers to determine
approximate distances correctly by eye. To address this problem, the
FHWA proposes to include the number of paces within parentheses next to
the required distances; the proposed rule treats one pace as 2.5 feet.
This will aid compliance by providing more guidance on the placement of
emergency warning devices.
Emergency Signals; Dangerous Cargoes
Section 392.25 prohibits the use of any flame-producing emergency
signal for protecting any CMV transporting Division 1.1, 1.2, and 1.3
explosives; any cargo tank motor vehicle used for the transportation of
any flammable liquid or flammable compressed gas, whether loaded or
empty; or any CMV using compressed gas as a motor fuel. Section
393.95(g) prohibits any signal produced by a flame, including liquid
burning emergency flares, fusees, and oil lanterns, to be carried on
the same types of CMVs. It is unnecessary to prohibit the use of such
signals when it is already illegal to have them in the CMV. The FHWA
proposes to remove Sec. 392.25.
Notification of License Revocation
Section 392.42 requires a driver who receives a notice that his/her
license, permit, or privilege to operate a CMV has been revoked,
suspended, or withdrawn to notify his/her employing motor carrier of
such action before the end of the business day following the day of
notification. This notification requirement would be more appropriately
included in Sec. 391.15, entitled ``Disqualification of drivers,''
because it addresses the disqualification of drivers more than safe
driving. The FHWA proposes to move the notification requirement in
Sec. 392.42 to Sec. 391.15(b)(2), and entitle paragraph (b) ``Loss of
driving privileges.''
The FHWA requests comments from State driver licensing agencies
regarding whether such agencies send a written notification to the
employing motor carrier of a driver who has had his/her license,
permit, or privilege to operate a CMV revoked, suspended, or withdrawn.
For those agencies that do, the FHWA requests information about whether
the driver receives a written notification from the agency stating that
the agency has sent written notification of the revocation, suspension,
or withdrawal to his/her employing motor carrier. Upon consideration of
comments in response to this request, the FHWA may add additional
language to Sec. 391.15(b) which would exempt a driver of his/her
notification requirement if the State licensing agency sends written
notification to the driver's employing motor carrier of the revocation,
suspension, or withdrawal and also sends written notification to the
driver that his/her employing motor carrier was sent such written
notification.
Reserve Fuel
Section 392.51 prohibits the supply of fuel for the propulsion of a
CMV or the operation of its accessories from being carried on the CMV
except in a properly mounted fuel tank or tanks. Section 392.51 is
intended to address the carriage of small packages containing fuel when
the fuel is intended for consumption by the CMV or its accessories.
This practice, however, is not prohibited when the fuel is intended for
other purposes such as consumption by machinery being transported. The
FHWA believes there is no sound reason to prohibit the carriage of
small packages containing fuel in some but not all circumstances. The
FHWA proposes to remove Sec. 392.51.
Buses; Fueling
Section 392.52 prohibits the fueling of a bus in a closed building
with passengers aboard and limits the number of times a bus may be
fueled with passengers aboard to the minimum number of times necessary.
The fueling of a bus in a closed building with passengers aboard is an
extremely rare occurrence which does not warrant a Federal prohibition.
The number of times a bus is fueled with passengers aboard has little
effect upon highway safety and is not an issue which is properly
addressed by the FMCSRs. The FHWA proposes to remove Sec. 392.52.
Motive Power Not To Be Disengaged
Section 392.68 prohibits a CMV from being driven with the source of
motive power disengaged from the driving wheels except when such
disengagement is necessary to stop or to shift gears. Such a
prohibition is more appropriately monitored and enforced by State and
local authorities. The FHWA proposes to remove Sec. 392.68.
Part 395--Hours of Service of Drivers
The primary purpose of part 395 is to prevent a CMV driver from
driving while fatigued by establishing hours of service limitations and
recordkeeping requirements.
Definitions
On Duty Time
The driver requirements of Secs. 392.7 and 392.8 relating to
inspection and use of parts, accessories, and emergency equipment is
mentioned in paragraph (2) of the definition of on duty time in
Sec. 395.2. As previously explained, the FHWA proposes to remove
Secs. 392.7 and 392.8, thereby necessitating a revision of paragraph
(2).
Part 396--Inspection, Repair, and Maintenance
The primary purpose of part 396 is to ensure that CMVs are in safe
operating condition by requiring motor carriers to systematically
inspect, repair, and maintain, or cause to be systematically inspected,
repaired, and maintained, all motor vehicles subject to their control.
Driver Vehicle Inspection Reports
Section 396.11(c)(3) requires a legible copy of the last DVIR to be
carried on the power unit. The reason for this retention requirement is
to enable roadside inspectors to determine whether a DVIR was prepared
at the completion of the previous day's work. However, the decision to
conduct a roadside inspection of the CMV is not influenced by the
presence or absence of a DVIR. Furthermore, failure to have a copy of
the last DVIR in the power unit is not an out-of-service violation
under the North American Out-of-Service Criteria. The FHWA proposes to
remove Sec. 396.11(c)(3) because its benefit is outweighed by the
burden imposed. This proposed removal is in no way intended to affect
the accessibility of the last DVIR which a driver must review before
driving a CMV. The FHWA proposes to amend Sec. 396.13(b) by removing
the language that the last DVIR is required to be carried on the power
unit.
For ease of reference, a distribution table is provided for the
current sections and the proposed sections as follows:
----------------------------------------------------------------------------------------------------------------
Current section Proposed section
----------------------------------------------------------------------------------------------------------------
387.5......................................... 387.5 definitions revised.
For-hire carriage......................... Revised.
Motor carrier............................. Revised.
387.27........................................ 387.27(b)(4) added.
[[Page 3863]]
387.29........................................ 387.29 definitions revised.
For-hire carriage......................... Revised.
Motor carrier............................. Revised.
Motor common carrier...................... Removed.
Motor contract carrier.................... Removed.
390.3(f)(2)................................... Revised.
390.5......................................... 390.5 definitions revised.
Accident.................................. Revised.
Commercial motor vehicle.................. Revised.
Interstate commerce....................... Revised.
Intermittent, casual, or occasional driver Renamed: Multiple-employer driver.
Principal place of business............... Revised.
Regularly employed driver................. Renamed: Single-employer driver.
390.29 added.
391.11(b)(4).................................. Removed.
391.11(b)(5).................................. Removed.
391.11(b)(6).................................. 391.11(b)(4).
391.11(b)(7).................................. 391.11(b)(5).
391.11(b)(8).................................. Removed.
391.11(b)(9).................................. 391.11(b)(6).
391.11(b)(10)................................. Removed.
391.11(b)(11)................................. Removed.
391.15(b)..................................... 391.15(b) (1) and (2).
391.25........................................ Revised.
391.27........................................ Removed and reserved.
391.31........................................ Removed and reserved.
391.33........................................ Removed and reserved.
391.49(d)(5).................................. Revised.
391.51(a)..................................... Revised.
391.51(b)..................................... Revised.
391.51(c)..................................... Removed.
391.51(d)..................................... Removed.
391.51(e)..................................... Removed.
391.51(f)..................................... 391.51(c) and revised.
391.51(g)..................................... Removed.
391.51(h)..................................... 391.51(d) and revised.
391.61........................................ Revised.
391.63........................................ Revised.
391.65(b)..................................... Revised.
391.65(c)..................................... Revised.
391.67........................................ Revised.
391.68........................................ Revised.
391.69........................................ Removed.
391.71........................................ Removed and reserved.
391.73........................................ 391.69 and revised.
392.7......................................... Removed and reserved.
392.8......................................... Removed and reserved.
392.9(b)...................................... Removed.
392.9(c)(1)................................... 392.62.
392.9(c)(2)................................... Removed.
392.9(c)(3)................................... 392.9(b).
392.9b........................................ Removed and reserved.
392.10(b)(1).................................. 392.10(b)(3).
392.10(b)(3).................................. 391.10(b)(1) and revised.
392.13........................................ Removed and reserved.
392.14........................................ Removed and reserved.
392.15........................................ Removed and reserved.
392.20........................................ Removed and reserved.
392.22(b)(1).................................. Revised.
392.25........................................ Removed and reserved.
392.42........................................ Removed and reserved.
392.51........................................ Removed and reserved.
392.52........................................ Removed and reserved.
392.62........................................ Added.
392.68........................................ Removed and reserved.
395.1(g)...................................... Removed.
395.1(h)...................................... 395.1(g).
395.1(i)...................................... 395.1(h).
395.1(j)...................................... 395.1(i).
395.1(k)...................................... 395.1(j).
395.2......................................... 395.2 definitions revised.
On-duty time.................................. Revised.
395.8(k)(1)................................... Revised.
396.11(b)..................................... Revised.
[[Page 3864]]
396.11(c)..................................... Revised.
396.11(c)(1).................................. Revised.
396.11(c)(2).................................. Revised.
396.11(c)(3).................................. Removed.
396.11(d)..................................... Revised.
396.13(b)..................................... Revised.
397.19(b)..................................... Revised.
----------------------------------------------------------------------------------------------------------------
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket at the above address. Comments received
after the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue a final
rule at any time after the close of the comment period. In addition to
late comments, the FHWA will also continue to file relevant information
in the docket as it becomes available after the comment closing date,
and interested persons should continue to examine the docket for new
material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this regulatory action is not
significant under Executive Order 12866 or regulatory policies and
procedures of the DOT. It is anticipated that the economic impact of
this rulemaking will be minimal. In addition, this regulatory action is
not expected to cause an adverse effect on any sector of the economy.
The regulations which are the subject of this proposed rule are
obsolete, redundant, unnecessary, ineffective, burdensome, more
appropriately regulated by State and local authorities, better
addressed by company policy, in need of clarification, or more
appropriately contained in another section. Thus, this rulemaking will
actually lessen the burden imposed by these regulations which will be
removed, amended, or redesignated as a result. No serious inconsistency
or interference with another agency's actions or plans will result
because this rulemaking deals exclusively with the FMCSRs. In addition,
the rights and obligations of recipients of Federal grants will not be
materially affected by this regulatory action. In light of this
analysis, the FHWA finds that a full regulatory evaluation is not
required.
Regulatory Flexibility Act
In compliance with the Regulatory Flexibility Act (5 U.S.C. 601-
612), the FHWA has evaluated the effects of this proposed rule on small
entities. The FHWA believes that this proposed rule would not have a
significant economic impact on a substantial number of small entities.
The FHWA intends to further evaluate the economic consequences of this
proposal on small entities in light of the comments received in
response to this notice.
For the most part, this rulemaking would merely lessen the burden
of complying with the FMCSRs by making these regulations clearer and
less redundant. As a result, all entities which are subject to these
regulations would benefit, regardless of the size of the entity. This
regulatory action will also facilitate compliance with the FMCSRs by
removing regulations on certain areas that are more appropriately
addressed by company policy. This action would thus provide motor
carriers with more flexibility to pursue their own attempts at
furthering the safety of their operations.
Executive Order 12612 (Federalism Assessment)
This action has been analyzed in accordance with the principles and
criteria contained in Executive Order 12612, and it has been determined
that this proposed rule does not have sufficient federalism impacts to
warrant the preparation of a Federalism Assessment.
These proposed changes to the FMCSRs will not preempt any State law
or State regulation and no additional costs or burdens will be imposed
on the States thereby. In fact, regulatory burdens will be lessened as
a result of this rulemaking. In addition, this rule will not have a
significant effect on the States' ability to execute traditional State
governmental functions.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
The information collection requirements that would be imposed as a
result of this rulemaking are being submitted to the OMB for approval
in accordance with the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-
3520. This rulemaking proposes two new required collections of
information. The first is a recordkeeping requirement, an annual
inquiry into drivers' driving records, which would be included in the
following information collection:
Title: Driver Qualification Files.
Affected Public: Approximately 373,000 motor carriers.
Abstract: Motor carriers are required to maintain a driver
qualification file for each CMV driver to document that the driver
meets the qualification standards to drive in interstate commerce.
Need: To ensure that motor carriers employ only qualified
interstate CMV drivers.
Requested Time Period of Approval: Three years.
Estimated Annual Burden: Based on an estimate of 5,500,000
interstate CMV drivers, annual inquiries into drivers' driving records
would impose an estimated annual burden of 398,750 hours. The
recordkeeping requirements related to the record of violations impose
an estimated annual burden of 159,500 hours. The replacement of these
requirements with the proposed recordkeeping requirements related to
annual inquiries into drivers' driving records, would increase the
total estimated annual burden of driver qualification files (approved
by the OMB under control number 2125-0065) by 239,250 hours, from total
836,916 hours to total 1,076,166 hours.
The second proposed information collection is a requirement for
motor carriers that use a driver who is furnished by another motor
carrier, to obtain information regarding the validity of the driver's
qualification certificate. This requirement would be included in the
following information collection:
Title: Qualification Certificate.
Affected Public: Approximately 373,000 motor carriers.
[[Page 3865]]
Abstract: A motor carrier that employs a driver who is furnished by
another motor carrier, is exempt from maintaining a driver
qualification file for such driver, provided a qualification
certificate is obtained from the furnishing motor carrier.
Need: To ensure that motor carriers employ only qualified
interstate CMV drivers.
Requested Time Period of Approval: Three years.
Estimated Annual Burden: The proposed information collection
involving contacts to verify the validity of qualification certificates
would increase the total estimated annual burden of qualification
certificates (approved by the OMB under control number 2125-0081) by
13,750 hours, from 13,750 total hours to 27,500 total hours.
Comments on these proposed collections of information may be
submitted to the OMB. Interested parties should send comments to the
Office of Information and Regulatory Affairs, Office of Management and
Budget, 725--17th Street, NW., Washington, DC 20503, Attention: Desk
Officer for Federal Highway Administration. The OMB is required to make
a decision concerning the proposed recordkeeping requirement between 30
and 60 days after publication of this action. A comment to the OMB will
be most effective if the OMB receives it within 30 days of publication.
Comments are invited on any aspect of the proposed collections of
information including, but not limited to: (1) The necessity and
utility of the information collection for the proper performance of the
functions of the FHWA; (2) the accuracy of the estimated burden; (3)
ways to enhance the quality, utility, and clarity of the collected
information; and (4) ways to minimize the collection burden without
reducing the quality of the collected information.
National Environmental Policy Act
The agency has analyzed this action for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has
determined that this action would not have any effect on the quality of
the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects
49 CFR Part 387
Hazardous materials transportation, Highways and roads, insurance,
Motor carriers, Penalties, Reporting and recordkeeping requirements,
Surety bonds.
49 CFR Part 390
Highways and roads, Intermodal transportation, Motor carriers,
Motor vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 391
Highways and roads, Motor carriers--driver qualifications, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 392
Highways and roads, Highway safety, Motor carriers--driving
practices, Motor vehicle safety.
49 CFR Part 395
Global positioning systems, Highways and roads, Intelligent
transportation systems, Motor carriers--driver hours of service, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 396
Highway safety, Highways and roads, Motor carriers, Motor vehicle
maintenance, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 397
Hazardous materials transportation, Highways and roads, Motor
carriers, Motor vehicle safety.
Issued on: January 7, 1997.
Rodney E. Slater,
Federal Highway Administrator.
In consideration of the foregoing, the FHWA proposes to amend title
49, Code of Federal Regulations, chapter III, subchapter B, parts 387,
390, 391, 392, 395, 396, and 397 as set forth below:
PART 387--MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR
CARRIERS
1. The authority citation for part 387 continues to read as
follows:
Authority: 49 U.S.C. 31138 and 31139; and 49 CFR 1.48.
2. In Sec. 387.5, the definitions for-hire carriage and motor
carrier are revised to read as follows:
Sec. 387.5 Definitions.
* * * * *
For-hire carriage means transportation of property by a common,
contract, or exempt commodity motor carrier of property.
* * * * *
Motor carrier means a for-hire or private motor carrier of
property.
* * * * *
3. Section 387.27 is amended by adding paragraph (b)(4) to read as
follows:
Sec. 387.27 Applicability.
* * * * *
(b) * * *
(4) A motor vehicle operated by a contract motor carrier providing
transportation of preprimary, primary, and secondary students for
extracurricular trips organized, sponsored, and paid by a school
district.
4. In Sec. 387.29, the definitions of the terms motor common
carrier and motor contract carrier are removed; and the definitions of
for-hire carriage and motor carrier are revised to read as follows:
Sec. 387.29 Definitions.
* * * * *
For-hire carriage means transportation of passengers which is
generally available to the public at large and is performed for a
commercial purpose by a motor carrier which is directly or indirectly
compensated, monetarily or otherwise, for the transportation service
provided.
* * * * *
Motor carrier means a person providing for-hire carriage.
* * * * *
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
5. The authority citation for part 390 continues to read as
follows:
Authority: 49 U.S.C. 5901-5907, 31132, 31133, 31136, 31502, and
31504; and 49 CFR 1.48.
6. Section 390.3 is amended by revising paragraph (f)(2) to read as
follows:
Sec. 390.3 General applicability.
* * * * *
(f) * * *
(2) Transportation performed by the Federal government, a State, or
any political subdivision of a State, or an agency established under a
compact between States that has been approved by the Congress of the
United States.
* * * * *
7. In Sec. 390.5, the definition of the term accident is revised;
the terms
[[Page 3866]]
intermittent, casual, or occasional driver and regularly employed
driver are removed; the terms multiple-employer driver and single-
employer driver are added; and the terms commercial motor vehicle,
interstate commerce, and principal place of business are revised. All
are placed in alphabetical order and read as follows:
Sec. 390.5 Definitions.
* * * * *
Accident means:
(1) Except as provided in paragraph (2) of this definition, an
occurrence involving a commercial motor vehicle operating on a public
road (inclusive of privately owned roads which are accessible to the
public) in interstate or intrastate commerce which results in:
(i) A fatality;
(ii) Bodily injury to a person who, as a result of the injury,
immediately receives medical treatment away from the scene of the
accident; or
(iii) One or more motor vehicles incurring disabling damage as a
result of the accident, requiring the motor vehicle(s) to be
transported away from the scene by a tow truck or other motor vehicle.
(2) The term accident does not include:
(i) An occurrence involving only boarding and alighting from a
stationary motor vehicle; or
(ii) An occurrence involving only the loading or unloading of
cargo.
* * * * *
Commercial motor vehicle means any self-propelled or towed vehicle
used on public highways in interstate commerce to transport passengers
or property if the vehicle:
(1) Has a gross vehicle weight rating or gross combination weight
rating of 10,001 or more pounds; or
(2) Is designed to transport 16 or more passengers, including the
driver; or
(3) Is of any size and is used in the transportation of materials
found to be hazardous for the purposes of the Hazardous Materials
Transportation Act (49 U.S.C. 5101 et seq.) and which require the motor
vehicle to be placarded under the Hazardous Materials Regulations (49
CFR Part 172, Subpart F).
* * * * *
Interstate commerce means trade, traffic, or transportation in the
United States--
(1) Between a place in a State and a place outside of such State
(including a place outside of the United States);
(2) Between two places in a State through another State or a place
outside of the United States; or
(3) Between two places in a State as part of trade, traffic, or
transportation described in paragraphs (1) or (2) of this definition.
* * * * *
Multiple-employer driver means a driver, who in any period of 7
consecutive days, is employed or used as a driver by more than one
motor carrier. The qualification of such a driver shall be determined
and recorded in accordance with the provisions of Secs. 391.63 or
391.65 of this subchapter, as applicable.
* * * * *
Principal place of business means:
(1) For a motor carrier with a single place of business, the single
location where records required by parts 387, 390, 391, and 395 of this
subchapter must be maintained and where records required by parts 382
and 396 of this subchapter must be made available for inspection within
48 hours (Saturdays, Sundays, and Federal holidays excluded) after a
request has been made by a special agent or authorized representative
of the Federal Highway Administration.
(2) For a motor carrier with multiple offices or terminals, the
single location designated by the motor carrier, normally its
headquarters, where records required by parts 382, 387, 390, 391, 395,
and 396 must be made available for inspection within 48 hours
(Saturdays, Sundays, and Federal holidays excluded) after a request has
been made by a special agent or authorized representative of the
Federal Highway Administration.
* * * * *
Single-employer driver means a driver who, in any period of 7
consecutive days, is employed or used as a driver solely by a single
motor carrier. Such term includes a driver who operates a commercial
motor vehicle on an intermittent, casual, or occasional basis.
* * * * *
8. Section 390.29 is added to read as follows:
Sec. 390.29 Location of records or documents.
(a) A motor carrier with multiple offices or terminals may maintain
the records and documents required by this subchapter at a regional
office or driver work-reporting location unless otherwise specified in
this subchapter.
(b) All records and documents required by this subchapter which are
maintained at a regional office or driver work-reporting location shall
be made available for inspection upon request by a special agent or
authorized representative of the Federal Highway Administration at the
motor carrier's principal place of business or other location specified
by the agent or representative within 48 hours after a request is made.
Saturdays, Sundays, and Federal holidays are excluded from the
computation of the 48-hour period of time.
PART 391--QUALIFICATIONS OF DRIVERS
9. The authority citation for part 391 continues to read as
follows:
Authority: 49 U.S.C. 504, 31133, 31136, and 31502; and 49 CFR
1.48.
Sec. 391.11 [Amended]
10. Section 391.11 is amended by revising paragraph (b) to read as
follows:
Sec. 391.11 Qualifications of drivers.
* * * * *
(b) Except as provided in subpart G of this part, a person is
qualified to drive a motor vehicle if he/she--
(1) Is at least 21 years old;
(2) Can read and speak the English language sufficiently to
converse with the general public, to understand highway traffic signs
and signals in the English language, to respond to official inquiries,
and to make entries on reports and records;
(3) Can, by reason of experience, training, or both, safely operate
the type of commercial motor vehicle he/she drives;
(4) Is physically qualified to drive a commercial motor vehicle in
accordance with subpart E--Physical Qualifications and Examinations of
part 391;
(5) Has a currently valid commercial motor vehicle operator's
license issued only from one State or jurisdiction; and
(6) Is not disqualified to drive a commercial motor vehicle under
the rules in Sec. 391.15.
11. Section 391.15 is amended by revising paragraph (b) to read as
follows:
Sec. 391.15 Disqualification of drivers.
* * * * *
(b) Loss of driving privileges.
(1) A driver is disqualified for the duration of the driver's loss
of his/her privilege to operate a commercial motor vehicle on public
highways, either temporarily or permanently, by reason of the
revocation, suspension, withdrawal, or denial of an operator's license,
permit, or privilege, until that operator's license, permit, or
privilege is restored by the authority that revoked, suspended,
withdrew, or denied it.
(2) A driver who receives a notice that his/her license, permit, or
privilege to operate a commercial motor vehicle has been revoked,
suspended, or withdrawn shall notify the motor carrier that
[[Page 3867]]
employs him/her of the contents of the notice before the end of the
business day following the day the driver received it.
* * * * *
12. Section 391.25 is revised to read as follows:
Sec. 391.25 Annual inquiry and review of driving record.
(a) Except as provided in subpart G of this part, each motor
carrier shall, at least once every 12 months, make an inquiry into the
driving record of each driver it employs, covering at least the
preceding 12 months, to the appropriate agency of every State in which
the driver held a commercial motor vehicle operator's license or permit
during the time period.
(b) Except as provided in subpart G of this part, each motor
carrier shall, at least once every 12 months, review the driving record
of each driver it employs to determine whether that driver meets
minimum requirements for safe driving or is disqualified to drive a
commercial motor vehicle pursuant to Sec. 391.15.
(1) The motor carrier must consider any evidence that the driver
has violated any applicable Federal Motor Carrier Safety Regulations or
Hazardous Materials Regulations.
(2) The motor carrier must consider the driver's accident record
and any evidence that the driver has violated laws governing the
operation of motor vehicles, and must give great weight to violations,
such as speeding, reckless driving, and operating while under the
influence of alcohol or drugs, that indicate that the driver has
exhibited a disregard for the safety of the public.
(c) Recordkeeping.
(1) A copy of the response by each State agency to the inquiry
required by paragraph (a) of this section, showing the driver's driving
record or certifying that no driving record exists for the driver,
shall be maintained in the driver's qualification file.
(2) A note, including the name of the person who performed the
review of the driving record required by paragraph (b) of this section
and the date of such review, shall be maintained in the driver's
qualification file.
Sec. 391.27 [Removed and Reserved]
13. Section 391.27 is removed and reserved.
Subpart D of Part 391--[Removed and Reserved]
14. Subpart D of part 391 (Secs. 391.31 and 391.33) is removed and
reserved.
15. Section 391.49 is amended by revising paragraph (d)(5) to read
as follows:
Sec. 391.49 Waiver of certain physical defects.
* * * * *
(d) * * *
(5) Road test:
(i) A motor carrier coapplicant shall ensure that a driver
applicant has successfully completed a road test. The road test shall
be given by the motor carrier or a person designated by it. The test
shall be given by a person who is competent to evaluate the driver
applicant's performance and determine whether he/she can operate the
type of commercial motor vehicle, and associated equipment, the motor
carrier intends to assign him/her.
(ii) A unilateral driver applicant shall be responsible for having
a road test administered by a person who is competent to evaluate the
driver applicant's performance and determine whether he/she can operate
the type of commercial motor vehicle, and associated equipment, he/she
proposes to operate.
(iii) At a minimum, the person who takes the road test must be
evaluated on his/her skill at performing each of the following:
(A) Coupling and uncoupling of combination units, if applicable;
(B) Placing the commercial motor vehicle in operation;
(C) Use of the commercial motor vehicle's controls and emergency
equipment;
(D) Operating the commercial motor vehicle in traffic including
passing other motor vehicles;
(E) Turning the commercial motor vehicle;
(F) Braking and slowing the commercial motor vehicle by means other
than braking; and
(G) Backing and parking the commercial motor vehicle.
(iv) If the road test is successfully completed, the person who
gave it shall certify in writing that the person tested possesses
sufficient driving skill to operate safely the type of commercial motor
vehicle in which the test was given. The written certification shall
include the date of the road test, the name of person tested; the type
of power unit and trailer(s), or type of bus used for the test; and
name, signature, occupation, and address of the person who gave the
test.
* * * * *
16. Section 391.51 is revised to read as follows:
Sec. 391.51 General requirements for driver qualification files.
(a) Each motor carrier shall maintain a driver qualification file
for each driver it employs. A driver's qualification file may be
combined with his/her personnel file.
(b) The qualification file for a driver must include:
(1) The driver's application for employment completed in accordance
with Sec. 391.21;
(2) The written record with respect to each past employer who was
contacted and a copy of the response by each State agency, pursuant to
Sec. 391.23 involving investigation and inquiries;
(3) The response of each State agency to the annual driver record
inquiry required by Sec. 391.25(a);
(4) The note relating to the annual review of the driver's driving
record as required by Sec. 391.25(c)(2);
(5) The medical examiner's certificate of his/her physical
qualification to drive a commercial motor vehicle as required by
Sec. 391.43(f) or a legible photographic copy of the certificate; and
(6) The letter from the Regional Director of Motor Carriers
granting a waiver of a physical disqualification, if a waiver was
issued under Sec. 391.49.
(c) Except as provided in paragraph (d) of this section, each
driver's qualification file shall be retained for as long as a driver
is employed by that motor carrier and for 3 years thereafter.
(d) The following records may be removed from a driver's
qualification file 3 years after the date of execution:
(1) The response of each State agency to the annual driver record
inquiry required by Sec. 391.25(a);
(2) The note relating to the annual review of the driver's driving
record as required by Sec. 391.25(c)(2);
(3) The medical examiner's certificate of the driver's physical
qualification to drive a commercial motor vehicle or the photographic
copy of the certificate as required by Sec. 391.43(f); and
(4) The letter issued under Sec. 391.49 granting a waiver of a
physical disqualification.
(Approved by the Office of Management and Budget under control
number 2125-0065)
17. Section 391.61 is revised to read as follows:
Sec. 391.61 Drivers who were regularly employed before January 1,
1971.
The provisions of Sec. 391.21 (relating to applications for
employment) and Sec. 391.23 (relating to investigations and inquiries)
do not apply to a driver who has been a single-employer driver (as
defined in Sec. 390.5 of this subchapter) of a motor carrier for a
continuous period which began before January 1, 1971, as long as he/she
continues to be a single-employer driver of that motor carrier.
18. Section 391.63 is revised to read as follows:
[[Page 3868]]
Sec. 391.63 Multiple-employer drivers.
(a) If a motor carrier employs a person as a multiple-employer
driver (as defined in Sec. 390.5 of this subchapter), the motor carrier
shall comply with all requirements of this part, except that the motor
carrier need not--
(1) Require the person to furnish an application for employment in
accordance with Sec. 391.21;
(2) Make the investigations and inquiries specified in Sec. 391.23
with respect to that person;
(3) Perform the annual driving record inquiry required by
Sec. 391.25(a); or
(4) Perform the annual review of the person's driving record
required by Sec. 391.25(b).
(b) Before a motor carrier permits a multiple-employer driver to
drive a commercial motor vehicle, the motor carrier must obtain his/her
name, his/her social security number, and the identification number,
type and issuing State of his/her commercial motor vehicle operator's
license. The motor carrier must maintain this information for three
years after employment of the multiple-employer driver ceases.
19. Section 391.65 is amended by revising paragraphs (b) and (c) to
read as follows:
Sec. 391.65 Drivers furnished by other motor carriers.
* * * * *
(b) A motor carrier that obtains a certificate in accordance with
paragraph (a)(2) of this section shall:
(1) Contact the motor carrier which certified the driver's
qualifications under this section to verify the validity of the
certificate. This contact may be made in person, by telephone, or by
letter.
(2) Retain a copy of that certificate in its files for 3 years.
(c) A motor carrier which certifies a driver's qualifications under
this section shall be responsible for the accuracy of the certificate.
The certificate is no longer valid if the driver leaves the employment
of the motor carrier which issued the certificate or is no longer
qualified under the rules in this part.
20. Section 391.67 is revised to read as follows:
Sec. 391.67 Farm vehicle drivers of articulated commercial motor
vehicles.
The following rules in this part do not apply to a farm vehicle
driver (as defined in Sec. 390.5) who is 18 years of age or older and
who drives an articulated commercial motor vehicle:
(a) Section 391.11(b)(1) (relating to age);
(b) Subpart C (relating to disclosure of, investigation into, and
inquiries about the background, character, and driving record of,
drivers); and
(c) Subpart F (relating to maintenance of files and records).
21. Section 391.68 is revised to read as follows:
Sec. 391.68 Private motor carrier of passengers (nonbusiness).
The following rules in this part do not apply to a private motor
carrier of passengers (nonbusiness) and its drivers:
(a) Section 391.21 (relating to application for employment);
(b) Subpart C (relating to disclosure of, investigation into, and
inquiries about the background, character, and driving record of,
drivers);
(c) So much of Secs. 391.41 and 391.45 require a driver to be
medically examined and to have a medical examiner's certificate on his/
her person;
(d) Subpart F (relating to maintenance of files and records); and
(e) Subpart H (relating to controlled substances testing).
22. Section 391.69 is revised to read as follows:
Sec. 391.69 Private motor carrier of passengers (business).
The provisions of Sec. 391.21 (relating to applications for
employment) and Sec. 391.23 (relating to investigations and inquiries)
do not apply to a driver who was a single-employer driver (as defined
in Sec. 390.5 of this subchapter) of a private motor carrier of
passengers (business) as of July 1, 1994, so long as the driver
continues to be a single-employer driver of that motor carrier.
Sec. 391.71 [Removed and Reserved]
23. Section 391.71 is removed and reserved.
Sec. 391.73 [Removed and Reserved]
24. Section 391.73 is removed and reserved.
PART 392--DRIVING OF MOTOR VEHICLES
25. The authority citation for part 392 continues to read as
follows:
Authority: 49 U.S.C. 31136 and 31502; and 49 CFR 1.48.
Sec. 392.7 [Removed and Reserved]
26. Section 392.7, Equipment, inspection and use, is removed and
reserved.
Sec. 392.8 [Removed and Reserved]
27. Section 392.8, Emergency equipment, inspection, and use, is
removed and reserved.
28. Section 392.9 is revised to read as follows:
Sec. 392.9 Safe loading.
(a) General. No person shall drive a commercial motor vehicle and a
motor carrier shall not require or permit a person to drive a
commercial motor vehicle unless--
(1) The commercial motor vehicle's cargo is properly distributed
and adequately secured as specified in Secs. 393.100--393.106 of this
subchapter;
(2) The commercial motor vehicle's tailgate, tailboard, doors,
tarpaulins, its spare tire and other equipment used in its operation,
and the means of fastening the commercial motor vehicle's cargo are
secured; and
(3) The commercial motor vehicle's cargo or any other object does
not obscure the driver's view ahead or to the right or left sides,
interfere with the free movement of his arms or legs, prevent his free
and ready access to accessories required for emergencies, or prevent
the free and ready exit of any person from the commercial motor
vehicle's cab or driver's compartment.
(b) Buses. No person shall drive a bus and a motor carrier shall
not require or permit a person to drive a bus unless the baggage,
freight, or express on the bus is stowed and secured in a manner which
assures--
(1) Unrestricted freedom of movement to the driver and his proper
operation of the bus;
(2) Unobstructed access to all exits by any occupant of the bus;
and
(3) Protection of occupants of the bus against injury resulting
from the falling or displacement of articles transported in the bus.
Sec. 392.9b [Removed and Reserved]
29. Section 392.9b, Hearing aid to be worn, is removed and
reserved.
30. Section 392.10, Railroad grade crossings; stopping required, is
amended by revising paragraph (b) to read as follows:
Sec. 392.10 Railroad grade crossings; stopping required.
* * * * *
(b) A stop need not be made at:
(1) A railroad grade crossing with an active warning device. For
the purposes of this section, an active warning device includes a
functioning highway traffic signal, gate, or a device that uses sound
or light(s) to warn drivers of an approaching train;
(2) A railroad grade crossing when a police officer or crossing
flagman directs traffic to proceed;
(3) A streetcar crossing, or railroad tracks used exclusively for
industrial switching purposes, within a business district as defined in
Sec. 390.5 of this chapter;
[[Page 3869]]
(4) An abandoned railroad grade crossing which is marked with a
sign indicating that the rail line is abandoned;
(5) An industrial or spur line railroad grade crossing marked with
a sign reading ``Exempt.'' Such ``Exempt'' signs shall be erected only
by or with the consent of the appropriate State or local authority.
Sec. 392.13 [Removed and Reserved]
31. Section 392.13, Drawbridges; slowing down of commercial motor
vehicles, is removed and reserved.
Sec. 392.14 [Removed and Reserved]
32. Section 392.14, Hazardous conditions; extreme caution, is
removed and reserved.
Sec. 392.15 [Removed and Reserved]
33. Section 392.15, Required and prohibited use of turn signals, is
removed and reserved.
Sec. 392.20 [Removed and Reserved]
34. Section 392.20, Unattended commercial motor vehicles;
precautions, is removed and reserved.
35. Section 392.22 is amended by revising paragraph (b)(1) to read
as follows:
Sec. 392.22 Emergency signals; stopped commercial motor vehicles.
* * * * *
(b) Placement of warning devices--
(1) General rule. Except as provided in paragraph (b)(2) of this
section, whenever a commercial motor vehicle is stopped upon the
traveled portion or the shoulder of a highway for any cause other than
necessary traffic stops, the driver shall as soon as possible, but in
any event within 10 minutes, place the warning devices required by
Sec. 393.95 of this subchapter, in the following manner:
(i) One on the traffic side of and approximately 3 meters (10 feet
or 4 paces) from the stopped commercial motor vehicle in the direction
of approaching traffic;
(ii) One at approximately 30 meters (100 feet or 40 paces) from the
stopped commercial motor vehicle in the center of the traffic lane or
shoulder occupied by the commercial motor vehicle and in the direction
of approaching traffic; and
(iii) One at approximately 30 meters (100 feet or 40 paces) from
the stopped commercial motor vehicle in the center of the traffic lane
or shoulder occupied by the commercial motor vehicle and in the
direction away from approaching traffic.
* * * * *
Sec. 392.25 [Removed and Reserved]
36. Section 392.25, Emergency signals; dangerous cargoes, is
removed and reserved.
Sec. 392.42 [Removed and Reserved]
37. Section 392.42, Notification of license revocation, is removed
and reserved.
Sec. 392.51 [Removed and Reserved]
38. Section 392.51, Reserve fuel, is removed and reserved.
Sec. 392.52 [Removed and Reserved]
39. Section 392.52, Buses; fueling, is removed and reserved.
40. Section 392.62 is added to read as follows:
Sec. 392.62 Driving of buses, standee line or bar.
No person shall drive a bus and a motor carrier shall not require
or permit a person to drive a bus unless all standees on the bus are
rearward of the standee line or other means prescribed in Sec. 393.90
of this subchapter.
Sec. 392.68 [Removed and Reserved]
41. Section 392.68, Motive power not to be disengaged, is removed
and reserved.
PART 395--HOURS OF SERVICE OF DRIVERS
42. The authority citation for part 395 continues to read as
follows:
Authority: 49 U.S.C. 31133, 31136, and 31502; sec. 345, Pub.L.
104-59, 109 Stat. 568, 613; and 49 CFR 1.48.
Sec. 395.1 [Amended]
43. Section 395.1 is amended by removing paragraph (g) and
redesignating paragraphs (h) through (k) to read as (g) through (j),
respectively.
Sec. 395.2 [Amended]
44. In Sec. 395.2, the definition of on duty time is revised to
read as follows:
Sec. 395.2 Definitions.
* * * * *
On duty time means all time from the time a driver begins to work
or is required to be in readiness to work until the time he/she is
relieved from work and all responsibility for performing work. On duty
time shall include:
(1) All time at a plant, terminal, facility, or other property of a
motor carrier or shipper, or on any public property, waiting to be
dispatched, unless the driver has been relieved from duty by the motor
carrier;
(2) All time inspecting, servicing, or conditioning any commercial
motor vehicle at any time;
(3) All driving time as defined in the term driving time;
(4) All time, other than driving time, in or upon any commercial
motor vehicle except time spent resting in a sleeper berth;
(5) All time loading or unloading a commercial motor vehicle,
supervising, or assisting in the loading or unloading, attending a
commercial motor vehicle being loaded or unloaded, remaining in
readiness to operate the commercial motor vehicle, or in giving or
receiving receipts for shipments loaded or unloaded;
(6) All time repairing, obtaining assistance, or remaining in
attendance upon a disabled commercial motor vehicle;
(7) All time spent providing a breath sample or urine specimen,
including travel time to and from the collection site, in order to
comply with the random, reasonable suspicion, post-crash, or follow-up
testing required by part 382 or part 391, subpart H, of this
subchapter, whichever is applicable, when directed by a motor carrier;
(8) Performing any other work in the capacity of, or in the employ
or service of, a motor carrier; and
(9) Performing any compensated work for person who is not a motor
carrier.
* * * * *
45. Section 395.8 is amended by revising paragraph (k)(1) to read
as follows:
Sec. 395.8 Driver's record of duty status.
* * * * *
(k) Retention of driver's record of duty status. (1) Each motor
carrier shall maintain records of duty status and all supporting
documents for each driver it employs for a period of six months from
the date of receipt.
* * * * *
PART 396--INSPECTION, REPAIR, AND MAINTENANCE
46. The authority citation for part 396 continues to read as
follows:
Authority: 49 U.S.C. 31133, 31136, and 31502; and 49 CFR 1.48.
47. Section 396.11 is amended by revising paragraphs (b), (c), and
(d) to read as follows:
Sec. 396.11 Driver vehicle inspection report(s).
* * * * *
(b) Report content. The report shall identify the vehicle and list
any defect or deficiency discovered by or reported to the driver which
would affect the safety of operation of the vehicle or result in its
mechanical breakdown. If no defect or deficiency is discovered by or
reported to the driver, the report shall so indicate. In all instances,
the driver
[[Page 3870]]
shall sign the report. On two-driver operations, only one driver needs
to sign the driver vehicle inspection report, provided both drivers
agree as to the defects or deficiencies identified. If a driver
operates more than one vehicle during the day, a report shall be
prepared for each vehicle operated.
(c) Corrective action. Prior to requiring or permitting a driver to
operate a vehicle, every motor carrier or its agent shall repair any
defect or deficiency listed on the driver vehicle inspection report
which would be likely to affect the safety of operation of the vehicle.
(1) Every motor carrier or its agent shall certify on a driver
vehicle inspection report which lists any defect or deficiency that the
defect or deficiency has been repaired or that repair is unnecessary
before the vehicle is operated again.
(2) Every motor carrier shall maintain the driver vehicle
inspection report and the certification of repairs for three months
from the date the written report was prepared.
(d) Exceptions. The rules in this section shall not apply to a
private motor carrier of passengers (nonbusiness), a driveaway-towaway
operation, or any motor carrier operating only one commercial motor
vehicle.
48. Section 396.13 is amended by revising paragraph (b) to read as
follows:
Sec. 396.13 Driver inspection.
* * * * *
(b) Review the last driver vehicle inspection report; and
* * * * *
PART 397--TRANSPORTATION OF HAZARDOUS MATERIALS; DRIVING AND
PARKING RULES
49. The authority citation for part 397 continues to read as
follows:
Authority: 49 U.S.C. 322; 49 CFR 1.48. Subpart A also issued
under 49 U.S.C. 31136, 31502. Subparts C, D, and E also issued under
49 U.S.C. 5112, 5125.
50. Section 397.19 is amended by revising paragraph (b) to read as
follows:
Sec. 397.19 Instructions and documents.
* * * * *
(b) A driver who receives documents in accordance with paragraph
(a) of this section must sign a receipt for them. The motor carrier
shall maintain the receipt for a period of one year from the date of
signature.
* * * * *
[FR Doc. 97-1501 Filed 1-24-97; 8:45 am]
BILLING CODE 4910-22-P
