98-32454. Federal Motor Carrier Safety Regulations; Waivers, Exemptions, and Pilot Programs; Rules and Procedures

[Federal Register Volume 63, Number 235 (Tuesday, December 8, 1998)]
[Rules and Regulations]
[Pages 67600-67612]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-32454]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 381 and 383

[FHWA Docket No. FHWA-98-4145]
RIN 2125-AE48


Federal Motor Carrier Safety Regulations; Waivers, Exemptions, 
and Pilot Programs; Rules and Procedures

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Interim final rule; request for comments.

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SUMMARY: The FHWA is adopting regulations to implement section 4007 of 
the Transportation Equity Act for the 21st Century (TEA-21), concerning 
waivers and exemptions from the Federal Motor Carrier Safety 
Regulations (FMCSRs), and the administration of pilot programs to 
evaluate innovative alternatives to the regulations. The regulations 
establish the procedures persons must follow to request waivers and to 
apply for exemptions from the FMCSRs, and the procedures the FHWA will 
use to process the requests for waivers and applications for 
exemptions. The regulations also codify statutory requirements 
concerning the agency's administration of pilot programs. This 
rulemaking is intended to provide procedures to ensure the timely 
processing of requests for waivers and applications for exemptions, and 
public disclosure of the procedures the agency would use in initiating 
and managing pilot programs.

DATES: This rule is effective December 8, 1998. Comments must be 
received on or before February 8, 1998.

ADDRESSES: Submit written, signed comments to FHWA Docket No. FHWA-98-
4145, the Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh 
Street, SW., Washington, DC 20590-0001. All comments received will be 
available for examination at the above address from 10 a.m. to 5 p.m., 
et., Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard.

FOR FURTHER INFORMATION CONTACT: Mr. Larry W. Minor, Office of Motor 
Carrier Research and Standards, HCS-10, [phone]; or Mr. Charles 
E. Medalen, Office of the Chief Counsel, HCC-20, [phone], 
Federal Highway Administration, 400 Seventh Street, SW., Washington, 
D.C. 20590-0001.

[[Page 67601]]

Office hours are from 7:45 a.m. to 4:15 p.m., e.t., Monday through 
Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator (URL): 
http://dms.dot.gov. It is available 24 hours each day, 365 days each 
year. Please follow the instructions online for more information and 
help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at [phone]. Internet 
users may reach the GPO's web page at: http://www.access.gpo.gov/nara.

Background

    On June 9, 1998, the President signed the Transportation Equity Act 
for the 21st Century (TEA-21) (Pub. L. 105-178, 112 Stat. 107). Section 
4007 of TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning the 
Secretary of Transportation's (the Secretary's) authority to grant 
waivers from the FMCSRs for a person(s) seeking regulatory relief from 
those requirements. The statute provides the Secretary with the 
authority to grant waivers and exemptions. The duration of a waiver is 
limited to three months and the Secretary may grant the waiver without 
requesting public comment.
    By contrast, an exemption may be up to two years in duration, and 
may be renewed. The Secretary must provide the public with an 
opportunity to comment on each exemption request prior to granting or 
denying the request.
    Section 4007 also provides the Secretary with authority to conduct 
pilot programs, research studies in which an exemption(s) would be 
granted to allow innovative alternatives to certain FMCSRs to be 
tested. The Secretary must provide the public with an opportunity to 
comment before starting such a program.
    Prior to the enactment of TEA-21, 49 U.S.C. 31136(e) and 31315 
provided the FHWA explicit authority to waive any regulation issued 
under the Motor Carrier Safety Act of 1984 (Pub. L. 98-554, 98 Stat. 
2832), the Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 
100 Stat. 3207-170), and the Omnibus Transportation Employee Testing 
Act of 1991 (Pub. L. 102-143, 105 Stat. 952). The FHWA could waive any 
part of a regulation, as it applied to a person or class of persons, if 
the waiver was first determined to be consistent with the public 
interest and the safe operation of commercial motor vehicles (CMVs). 
Before granting a waiver under these provisions of the United States 
Code, the FHWA had to publish a notice in the Federal Register 
requesting public comment on the terms and conditions of the waiver. 
Generally, the agency used its waiver authority sparingly because it 
was difficult to determine beforehand, with a reasonable degree of 
certainty, whether an activity that is prohibited under the current 
regulations could be safely conducted under the terms and conditions of 
a waiver. The difficulties of that waiver process are exemplified by 
the decision of the U.S. Court of Appeals for the D.C. Circuit in 
Advocates for Highway and Auto Safety v. Federal Highway 
Administration, 28 F. 3d 1288 (1994), concerning the FHWA's Vision 
Waiver Program for CMV drivers.1
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    \1\ On August 2, 1994, the D.C. Circuit found that the agency's 
determination that the waiver program will not adversely affect the 
safe operation of commercial motor vehicles lacked empirical support 
in the record. Accordingly, the Court found that the FHWA failed to 
meet the exacting requirements of 49 U.S.C. 31136(e). The Court 
concluded that the FHWA's adoption of the waiver program was 
contrary to law, and vacated and remanded the rule to the agency.
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    With the enactment of TEA-21, the FHWA may grant a waiver or 
exemption that relieves a person from compliance in whole or in part 
with a regulation if the FHWA determines that the waiver or exemption 
is in the public interest and would likely achieve a level of safety 
that is equivalent to, or greater than, the level that would be 
achieved by complying with the regulation to which the waiver or 
exemption would apply. The TEA-21 also permits the FHWA to conduct 
pilot programs to evaluate alternatives to regulations relating to 
motor carrier, CMV, and driver safety. Pilot programs would include the 
use of exemptions under strict controls to enable the collection and 
analysis of data, and the preparation of a report to Congress. The TEA-
21 makes a clear distinction between ``waivers'' and ``exemptions'' and 
specifies requirements for pilot programs.

Waivers

    The TEA-21 gives the FHWA the authority to grant short-term waivers 
without requesting public comment, and without providing public notice. 
In addition to the safety criterion that applies to both waivers and 
exemptions, waivers will require a ``public interest'' finding. Waivers 
may only be granted to a person for a specific unique, non-emergency 
event for periods up to three months.

Exemptions

    The exemption provision is intended to broaden the agency's 
discretion to provide regulatory relief by overcoming the strict 
interpretation of 49 U.S.C. 31136(e) in Advocates for Highway and Auto 
Safety v. Federal Highway Administration, supra, concerning the FHWA's 
Vision Waiver Program for CMV drivers. As expressed in the legislative 
history of section 4007 of TEA-21:

    The Court found that the statutory language [49 U.S.C. 31136(e)] 
required the Secretary to determine, before issuing any waiver, that 
no diminution in safety would result, i.e., that it be determined 
beforehand there would be absolutely no increase in crashes as a 
result of the waivers. To deal with the decision, this section 
substitutes the term ``equivalent'' to describe a reasonable 
expectation that safety will not be compromised. In the absence of 
greater discretion to deal with waivers and exemptions and a new 
standard by which to judge them, the Congress would continue to be 
the only source to provide regulatory exemptions.

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

    The TEA-21 requires the FHWA to publish a notice in the Federal 
Register for each exemption requested, explaining that the request has 
been filed, and providing the public an opportunity to inspect the 
safety analysis and any other relevant information known to the agency, 
and comment on the request. Prior to granting a request for an 
exemption, the agency must publish a notice in the Federal Register 
identifying the person or class of persons who will receive the 
exemption, the provisions from which the person will be exempt, the 
effective period, and all terms and conditions of the exemption. The 
terms and conditions established by the FHWA must ensure that the 
exemption will likely achieve a level of safety that is equivalent to, 
or greater than, the level that would be achieved by complying with the 
regulation.
    In addition, the agency is required to monitor the implementation 
of each exemption to ensure compliance with its terms and conditions.
    If the FHWA denies a request for an exemption, the agency must 
publish a notice in the Federal Register identifying the person who was 
denied the exemption and the reasons for the denial. Section 4007 gives 
the agency the option of publishing a notice for each denial of an 
exemption, or periodically publishing notices for all denials during a 
given period of time.
    Generally, the duration of exemptions issued under the authority of 
section

[[Page 67602]]

4007 is limited to two years from the date of approval, but may be 
renewed.
    The FHWA is required to immediately revoke an exemption if--
    (1) The person fails to comply with the terms and conditions of the 
exemption;
    (2) The exemption has resulted in a lower level of safety than was 
maintained before the exemption was granted; or
    (3) Continuation of the exemption would not be consistent with the 
goals and objectives of the regulations issued under the authority of 
49 U.S.C. chapter 313, or 49 U.S.C. 31136.

Pilot Programs

    The TEA-21 permits the FHWA to conduct pilot programs to evaluate 
alternatives to regulations relating to motor carrier, CMV, and driver 
safety. These programs may include exemptions from one or more 
regulations. The FHWA must publish, in the Federal Register, a detailed 
description of each pilot program, including the exemptions being 
considered, and provide notice and an opportunity for public comment 
before the effective date of the program. The agency is required to 
ensure that the safety measures in the pilot programs are designed to 
achieve a level of safety that is equivalent to, or greater than, the 
level of safety that would be achieved through compliance with the 
safety regulations. The duration of pilot programs is limited to three 
years from the starting date.
    The FHWA is required to immediately revoke participation of a motor 
carrier, CMV, or driver for failure to comply with the terms and 
conditions of the pilot program, or if continued participation is 
inconsistent with the goals and objectives of the safety regulations 
issued under the authority of 49 U.S.C. chapter 313, or 49 U.S.C. 
31136. The agency is required to immediately terminate a pilot program 
if its continuation is inconsistent with the goals and objectives of 
the safety regulations issued under the authority of 49 U.S.C. chapter 
313, or 49 U.S.C. 31136.
    At the conclusion of each pilot program, the FHWA must report to 
Congress the findings, conclusions, and recommendations of the program, 
including suggested amendments to laws and regulations that would 
enhance motor carrier, CMV, and driver safety and improve compliance 
with the FMCSRs.

Public Meeting to Discuss the FHWA's Implementation of Section 4007

    On August 20, 1998, the FHWA held a public meeting at the 
Department of Transportation headquarters to solicit information from 
interested parties on issues the agency should consider in implementing 
section 4007 of TEA-21. A notice announcing the meeting was published 
on July 29, 1998 (63 FR 40387). The notice also provided interested 
parties with an opportunity to submit written comments to the docket.

Discussion of Comments Made During the Public Meeting

    The following companies and organizations were represented at the 
public meeting: Advocates for Highway and Auto Safety (Advocates); 
American Association of Motor Vehicle Administrators (AAMVA); the 
American Automobile Association (AAA); American Road and Transportation 
Builders Association (ARTBA); the American Trucking Associations, Inc. 
(ATA); Associated General Contractors (AGC); Institute for Public 
Representation; Maryland State Highway Administration; Nalley and 
Associates; National Automobile Dealers Association (NADA); National 
Private Truck Council (NPTC); Petroleum Marketers Association (PMA); 
Kenneth Pierson, a safety consultant; Truckload Carriers Association; 
U.S. Department of Energy; and Western Atlas International. A 
transcript of the meeting has been placed in the docket.
    Generally, the participants in the public meeting supported the 
implementation of section 4007 of the TEA-21. There were differing 
views on how complex or detailed the procedural rules should be; what 
criteria to use for granting waivers and exemptions and allowing 
participation in pilot programs; and how the FHWA should monitor 
persons who are granted waivers or exemptions, and participants in 
pilot programs.
    The ATA discussed the need for making a distinction between the 
procedural rules for waivers and exemptions. The ATA stated:

    With respect to waivers, since they are for a short duration and 
are intended to be limited in scope to address unique circumstances, 
there should be fewer entry hurdles for applicants, as well as less 
monitoring by the government.
    Applicants should be required to describe the circumstances that 
make their operations so unique as to support a limited waiver, and 
why there is a reasonable public interest--because that is one of 
the legislative tests.
    Applicants must also be required to describe the safety controls 
that will be put in place in order to mitigate any potential safety 
concerns. And since waivers will be limited in duration, [the FHWA], 
as I indicated, should limit the amount of monitoring or reporting 
involved.
    And we believe in some cases maybe there is no reporting and 
maybe there is no monitoring, depending on the circumstances.

    The ATA recommended that the FHWA consider providing examples of 
such countermeasures, and be willing to assist the applicants by 
providing information on the types of safety impact analyses that might 
be included in an application.
    The AAA believes that ``open, timely, and two-way'' communication 
among the FHWA and the States, and the public is critical. The AAA also 
indicated that certain terms should be defined in the regulations and 
that certain conditions should be met by applicants for exemptions and 
waivers. The AAA stated:

    Although the statute does not require public notice or comment, 
it also does not prohibit this critical component. AAA believes that 
FHWA should take full advantage of all opportunities to communicate 
its goals in motor carrier safety and therefore recommends that FHWA 
provide formal public notice of waivers.
    A notice in the Federal Register would not be burdensome and 
would at least communicate the public interest to be served by the 
waiver. Such notice would also signal to the public that the agency 
values communication, which is so important for the public to feel 
like they're a part of the process.
    We further recommend that FHWA approach states and communities 
affected by the waiver again as partners and provide notice 
sufficiently in advance so that their objections, recommendations, 
or concerns regarding the proposed waiver may be fairly and 
adequately considered and make them a part of the process.
    AAA also urges FHWA to clearly define the term ``public 
interest'' in its rule implementing the waiver authority. Clear 
definitions are critical to public understanding and acceptance.
    Moving on to the area of exemptions, AAA recommends that the 
regulations governing requests for exemption go beyond those 
required ``at a minimum'' in the statute and should include some of 
the following areas:
    1. The public interest to be served by the exemption;
    2. A clear statement of the necessity for and purpose of the 
exemption;
    3. An analysis of the enforcement impacts of the exemption and, 
if substantial, how cost recovery to states might be achieved;
    4. And then identification of the economic benefits to 
participants.

    The AGC and PMA expressed interest in having the FHWA exercise its 
authority under section 4007 of the TEA-21 to provide an exemption and 
pilot program, respectively, concerning

[[Page 67603]]

the hours-of-service regulations (49 CFR 395). The AGC stated:

    AGC calls on FHWA to use these new authorities to grant broad 
exemption from the hours of service restrictions for the 
construction industry. No other set of regulations are considered 
more onerous to the industry than these restrictions and the 
attendant requirements that go along with them.
    And from our point of view, they have the least positive impact 
on safety in construction. And as I said, I gave a detailed--
detailed comments that we've submitted to the record before on hours 
of service, detailing why we think the industry is unique and why it 
should be exempted.

    The PMA made reference to the FHWA's Winter Home Heating Oil 
Delivery State Flexibility Program developed in response to section 346 
of the National Highway System Designation Act of 1995 (Pub. L. 104-59, 
109 Stat. 568). The PMA requested that a program similar to the one 
described in the FHWA's January 29, 1997 (62 FR 4372) notice of final 
determination ``fit comfortably within the constructs of the rule we 
discuss here today.''
    The PMA also provided comments about monitoring participants in 
pilot programs. The PMA stated:

    In regard to monitoring of participants, monitoring of these 
programs--especially Pilot Project Programs--should be done by 
requiring participants to submit periodic reports as part of the 
FHWA Plan.
    Additionally, PMA suggests the Federal Highway Administration 
consider the creation of small, program-specific agency appointed 
review boards consisting of agency personnel, affected state 
regulators and industry representatives, who would be responsible 
for overall monitoring of an individual program.
    The review board should be given periodic updates regarding 
their specific program, as provided by the FHWA. In this way, Pilot 
Programs will be treated with the utmost level of seriousness, with 
meaningful consideration being given to all aspects of the process.
    The review board could also be available to advise the Secretary 
at his request as to key elements of rule implementation, in 
addition to monitoring, including revocation of participation; 
program termination; the report to Congress; and other items as the 
Secretary may request.

Discussion of Written Comments Received in Response to the FHWA's July 
29, 1998, Notice

    The FHWA received written comments from: the AAA; the AAMVA; the 
ARTBA; the ATA; the Insurance Institute for Highway Safety (IIHS); 
Parents Against Tired Truckers; and the PMA.
    The IIHS stated:

    Some federal motor carrier safety rules are so vital to the 
protection of commercial drivers and the general public that waivers 
and exemptions should not be permitted. One example is the current 
limitation on driving hours. The agency has no sound evidence that 
these hours-of-service limits can be extended without increasing 
crash rates.
    Motor carriers seeking waivers or exemptions from safety rules 
should expect to furnish sound data to justify these exemptions and 
undergo continued close scrutiny of their safety records. FHWA 
should not simply accept motor carriers' assertions that their 
safety records are excellent. Rather, the agency should review 
compliance data and perform compliance reviews if none have been 
performed within the past five years. Similarly, a reasonable 
percentage, perhaps 20 percent, of vehicles from motor carriers 
seeking exemptions should be inspected by state or federal 
personnel. Because of the high percentage of out-of-state citations 
and crashes that do not show up in the records of the States issuing 
commercial licenses to individual drivers, the agency also should 
gather crash and citation data from all states in which the motor 
carrier operates. In addition, the reported vehicle-miles of travel 
should be verified. If FHWA decides to grant a waiver or exemption, 
these data should continue to be actively collected to determine 
whether public safety has been compromised.

    The ARTBA stated:

    While we support the goals of section 4007, we urge FHWA to take 
steps to ensure participants in section 4007 will not be subject to 
an increased level of enforcement scrutiny relative to non-
participants. Specifically, FHWA should include directives that 
enforcement frequency should be unaffected by an individual or 
industry's status of participation in section 4007. Without this 
type of assurance, participation will potentially be discouraged.

FHWA Response to Comments

    The FHWA has considered the remarks of the participants in the 
August 20, 1998, public meeting, and the comments submitted to the 
docket and believes the procedural rules provide a straightforward 
process for the implementation of the waiver, exemption, and pilot 
program authority provided by section 4007 of the TEA-21. The FHWA does 
not agree with commenters who suggest that the procedural rules include 
specific details on how the agency would determine whether to grant or 
deny a waiver or exemption, and monitor the persons who are granted 
waivers and exemptions. The FHWA also disagrees with commenters' 
suggestions to include specific details on how the agency would 
communicate with State agencies.
    The FHWA does not believe it is practical to establish rules on who 
should be eligible to apply for waiver or exemption without knowing the 
specific regulatory relief the person is requesting. Each request for a 
waiver and application for an exemption should be reviewed on a case-
by-case basis to determine if the person can satisfy the statutory 
criteria for waivers and exemptions. In the case of exemption 
applications, the FHWA notes that the agency must publish a notice in 
the Federal Register to provide the public with an opportunity to 
review the application and safety impact analysis provided with the 
application. The agency believes this process will be adequate to 
ensure that all interested parties may comment on the applicant's 
safety performance and the specific regulatory relief being requested.
    The FHWA agrees with the ATA's comments about the need for making a 
distinction between the procedural rules for waivers and exemptions. 
Since waivers are for temporary (three months or less) regulatory 
relief for unique, non-emergency events, there should be a simple 
process for requesting a waiver, and the FHWA should ensure a timely 
response to the applicant.
    The FHWA believes the interim final rule establishes an effective 
process to ensure a timely response to the persons who request a 
waiver. Although the FHWA has the authority to publish a Federal 
Register notice to request public comments on waiver applications--a 
point emphasized by the AAA during the public meeting--the agency has 
tentatively determined that it would be impractical to request public 
comment each time someone needs a waiver for a unique, non-emergency 
event, especially given the three-month statutory limitation on the 
duration of the waiver. The agency believes that unless the application 
is submitted far in advance of the date for the unique event, it is 
very likely that the waiver could not be processed in time. Also, the 
time required to go through a notice-and-comment process would 
typically exceed the duration of the unique event.
    In response to the ATA's comments that the FHWA assist exemption 
applicants by providing information on the types of safety impact 
analyses that might be included in an application, the FHWA will 
consider providing assistance to the extent that there are available 
resources at the time the request for assistance is made. The FHWA 
notes that the primary responsibility for preparing an application for 
an exemption rests with the applicant. Prior to requesting assistance 
from the FHWA, each applicant should carefully review its

[[Page 67604]]

plans for achieving a level of safety that is equivalent to, or greater 
than, the level of safety that would be obtained by complying with the 
regulation from which it would be granted an exemption, and review the 
safety management controls it would use as an alternative to the 
regulation.
    The FHWA acknowledges that the statutory language suggests, and the 
interim final rule establishes, an application review process that is 
not completely data-driven. Specific pass-fail criteria (e.g., crash 
rates, safety ratings, compliance review results, driving records, 
etc.) for applications are not required. However, given the broad 
authority provided by section 4007 of the TEA-21 and the diversity of 
the motor carrier industry, establishing one-size-fits-all, pass-fail 
criteria for all exemption applicants is not feasible. The FHWA will 
make its determination based upon the research, technical, and safety 
data available at the time it reviews an application and consider the 
public comments received in response to the Federal Register notice 
required for each exemption application.
    With regard to the issue of monitoring of waiver and exemption 
grantees, the accident register requirements of Sec. 390.15 will remain 
applicable. The FHWA will provide the specific terms and conditions, 
including monitoring and reporting provisions, for each waiver and 
exemption on a case-by-case basis. For exemptions, the terms and 
conditions will be part of the Federal Register notice requesting 
public comment.
    The FHWA believes the notice-and-comment procedures established for 
exemption applications are consistent with the requirements of section 
4007 and will help to ensure the public has the opportunity to 
participate in the exemption process.
    The FHWA disagrees with the AAA's recommendation that minimum 
requirements for exemption applications include an analysis of the 
enforcement impacts and how the States would be reimbursed for any 
substantial expenses involved with enforcing the terms and conditions 
of the exemption, and monitoring the exemption grantees. The agency 
also disagrees with the recommendation that applicants be required to 
identify economic benefits.
    The FHWA through its Motor Carrier Safety Assistance Program 
(MCSAP) provides States with Federal funding to help support motor 
carrier safety enforcement programs. The FHWA does not intend or expect 
the level of effort from the State agencies to increase for the purpose 
of enforcing the terms and conditions of the exemptions that would be 
granted. It is expected that the processes/systems used to select 
drivers and vehicles for inspection, and to visit motor carriers for 
compliance reviews would remain the same. If a motor carrier operating 
under the terms and conditions of a waiver or exemption has one of its 
vehicles inspected, or is selected for a compliance review, the officer 
or investigator would verify compliance with terms and conditions of 
the waiver or exemption at that time.
    The FHWA believes it is inappropriate to subject a motor carrier to 
additional roadside inspections and compliance reviews based solely on 
its receipt of a waiver or exemption. The benefits of granting waivers 
and exemptions would be lost if regulatory relief were replaced with 
more rigorous or frequent enforcement activities targeted at the 
carriers who receive them. The FHWA shares the ARTBA's concerns that 
motor carriers would be discouraged from taking advantage of the 
opportunities provided by section 4007 if there were an increased level 
of enforcement scrutiny.
    On the subject of economic benefits, the FHWA does not believe 
applicants should be required to document the economic benefits to the 
exemption. The agency believes that it is more likely than not that 
motor carriers would only apply for an exemption if the motor carrier 
believes there is a significant economic benefit. There is no readily 
apparent safety benefit to requiring motor carriers to assign a dollar 
value to the economic benefits and prove that their estimates are 
valid.
    The FHWA disagrees with the AAA's request that the agency define 
``public interest'' as the term is used in 49 U.S.C. 31315(a) 
concerning waivers. The FHWA believes that the public interest is being 
served if alternatives that are likely to achieve safety outcomes that 
are equal to, or greater than, the outcomes provided by the current 
regulations are proven to be successful. The agency's objective is to 
work with the motor carrier industry, States, and safety groups to 
improve highway safety. Providing motor carriers with flexibility to 
explore new approaches to improving safety is in the public interest.
    The agency has not included a definition of ``equivalent'' in the 
interim final rule but requests public comment on whether there is a 
need to define the term. Commenters are encouraged to include 
suggestions or recommendations on how the term should be defined.
    With regard to the PMA's suggestion that the FHWA consider the 
creation of a review board for the monitoring of individual pilot 
programs, the agency does not believe this is necessary or practical. 
The terms and conditions for participation in a pilot program would 
include certain safety-related reports that could be used to help the 
agency monitor the motor carriers. If a participant fails to comply 
with the terms and conditions of the pilot program, the FHWA must 
immediately revoke participation of the motor carrier, driver, or 
vehicle.
    In response to the AGC and the PMA comments about regulatory relief 
from the hours-of-service regulations, the FHWA believes this 
rulemaking is not the proper forum for resolving those concerns. Now 
that procedural rules are in place, the AGC and the PMA members may 
apply for an exemption and request the development of a pilot program, 
respectively.
    The FHWA agrees with commenters' emphasis on the importance of 
working with the States. The FHWA will ensure that State officials are 
informed about the waivers, exemptions, and pilot programs. The States, 
as well as all interested parties, may comment in response to the 
Federal Register notices required by section 4007 of the TEA-21. The 
FHWA will notify the States of waivers and exemptions granted.

Discussion of Regulatory Language

    The FHWA is creating Part 381, Waivers, Exemptions, and Pilot 
Programs, to specify the requirements for requesting waivers and 
applying for exemptions, the process the agency will use in reviewing 
waiver requests and exemption applications, and the initiation and 
administration of pilot programs. Part 381 is divided into six 
subparts:
    Subpart A--General describes the purpose and applicability of part 
381, and defines certain terms used throughout the part;
    Subpart B--Procedures for Requesting Waivers provides a plain-
language description of waivers, the procedures for requesting a waiver 
and the process the FHWA will use to review waiver requests;
    Subpart C--Procedures for Applying for Exemptions provides a plain-
language description of exemptions, the procedures for applying for an 
exemption, the process the FHWA will use to review exemption 
applications, and the conditions under which the FHWA will revoke an 
exemption;
    Subpart D--Initiation of Pilot Programs explains how pilot programs 
operate, and how a pilot program can be initiated (which includes a 
detailed list of information the FHWA requests from individuals who 
would like to

[[Page 67605]]

recommend that the agency start a pilot program);
    Subpart E--Administration of Pilot Programs codifies in the FMCSRs 
a plain-language version of the statutory requirements concerning the 
FHWA's administration of pilot programs so that all interested parties 
will have a convenient reference; and
    Subpart F--Preemption of State Rules codifies in the FMCSRs a 
plain-language version of the Federal preemption of any State law and 
regulation that conflicts with or is inconsistent with a waiver, 
exemption, or pilot program with respect to a person operating under a 
waiver or exemption or participating in a pilot program.

Regulations for Which Waivers and Exemptions May Be Granted

    Section 4007 of the TEA-21 authorizes the FHWA to grant waivers and 
exemptions from any FMCSRs issued under the authority of 49 U.S.C. 
31136 and chapter 313. Section 4007 does not give the FHWA the 
authority to grant waivers and exemptions from regulations issued under 
the authority of other statutes, for example, the financial 
responsibility regulations codified at 49 CFR part 387 which were 
issued under the authority of 49 U.S.C. 31138 and 31139, concerning the 
transportation of passengers and property, respectively. Also, the FHWA 
does not have the authority to grant waivers and exemptions from 
certain requirements (e.g., surety bonds and policies of insurance for 
motor carriers and property brokers, surety bonds and policies of 
insurance for freight forwarders) which were transferred from the 
former Interstate Commerce Commission to the FHWA and are codified at 
49 CFR 387. The statutory authority for those requirements is 49 U.S.C. 
13101, 13301, 13906, and 14701.
    Another example of a requirement from which the FHWA cannot grant a 
waiver or exemption is 49 CFR 396.25, qualifications of brake 
inspectors. This rule establishes minimum qualifications for motor 
carrier employees that are responsible for the inspection, repair, or 
maintenance of CMV brake systems. This rule was issued under the 
authority of the Truck and Bus Safety and Regulatory Reform Act of 1988 
(the specific provision concerning qualifications of brake inspectors 
is codified at 49 U.S.C. 31137(b)).
    To assist the motor carrier industry and the general public in 
identifying the requirements for which waivers and exemptions may be 
granted, the FHWA has included a list in Secs. 381.200, 381.300, and 
381.400 which define in context, a waiver, exemption, and pilot 
program, respectively. Generally, the list of regulations for which a 
waiver or exemption could be granted includes:
    (1) Part 382--Controlled Substances and Alcohol Use and Testing;
    (2) Part 383--Commercial Driver's License Standards; Requirements 
and Penalties;
    (3) Sec. 385.21 Motor Carrier Identification Report;
    (4) Sec. 390.21 Marking of commercial motor vehicles;
    (5) Part 391--Qualifications of Drivers;
    (6) Part 392--Driving of Commercial Motor Vehicles;
    (7) Part 393--Parts and Accessories Necessary for Safe Operation;
    (8) Part 395--Hours of Service of Drivers;
    (9) Part 396--Inspection, Repair, and Maintenance (except 
Sec. 396.25); and
    (10) Part 399--Step, Handhold, and Deck Requirements.
    The FHWA has excluded the accident register requirements (49 CFR 
390.15) from the list of regulations eligible for a waiver or exemption 
because the agency believes it has a responsibility to monitor the 
accident involvement of entities operating under the terms of a waiver. 
The FHWA requests comments on this issue.
    The FHWA has included the motor carrier identification report (Form 
MCS-150) requirement (49 CFR 385.21) as one of the rules which could be 
waived because the agency believes there is no apparent benefit to 
using that report to gather information on entities that have not 
previously operated CMVs in interstate commerce and do not intend to 
operate CMVs in interstate commerce after the term of the waiver 
expires. The information from the Form MCS-150 would be used to create 
a file in the Motor Carrier Management Information System (MCMIS), a 
database containing safety information (e.g., compliance review 
results, roadside inspection results, CMV accidents, etc.) about 
interstate motor carriers. The entities that would benefit from this 
action would be certain intrastate motor carriers that are not subject 
to State requirements to complete the Form MCS-150, and businesses or 
groups that rarely (except for a unique, non-emergency event) operate 
CMVs.
    Several States currently require intrastate motor carriers to 
complete Form MCS-150 and obtain a USDOT identification number. These 
motor carriers are listed in the MCMIS as intrastate only carriers. The 
addition of these motor carriers to the MCMIS enables the States and 
the FHWA to work together in determining the number of active motor 
carriers operating in the United States, and to monitor the safety 
performance of motor carriers. The intrastate motor carriers subject to 
State requirements for completing Form MCS-150 would have already 
completed the form prior to applying for a waiver to conduct a short-
term operation in interstate commerce, and would continue to be subject 
to the State requirements at the end of the waiver period.
    Since intrastate motor carriers and non-motor carrier entities 
would be subject to the FHWA's jurisdiction for only a short period of 
time, adding them to the interstate motor carrier census could, 
depending on the number of intrastate motor carriers and non-motor 
carrier entities who are granted waivers, skew the data in the MCMIS. 
Furthermore, since the agency would be able to identify these entities 
through the information submitted as part of the waiver application, 
the submission of Form MCS-150 would be redundant. The FHWA requests 
comments on whether these entities should be required to submit Form 
MCS-150. The agency also requests comments on whether waivers granted 
to intrastate motor carriers and non-motor carrier entities should also 
include relief from all of the vehicle marking requirements in 49 CFR 
390.21, or only the display of the motor carrier census number (i.e., 
USDOT identification number) that is assigned when Form MCS-150 is 
completed.
    With regard to exemptions, the FHWA is requiring intrastate motor 
carriers and non-motor carrier entities to complete Form MCS-150 and to 
mark all CMVs as required in Sec. 390.21. The agency believes an entity 
that chooses to operate a CMV in interstate commerce for more than 3 
months should be treated as an interstate motor carrier for the 
purposes of the MCMIS. Since exemptions provide regulatory relief for 
up to two years, and may be renewed, the FHWA believes it is important 
that all CMVs operated in interstate commerce under the terms of the 
exemption should be marked. The FHWA requests comments on these issues.
    For the purposes of exemptions granted as part of a pilot program, 
the FHWA is using the same list of regulations provided in 
Sec. 381.300, What is an exemption? The FHWA is using the same list 
because the agency does not believe entities participating in a pilot 
program which could continue for up to three years should be treated 
differently from interstate motor carriers who are required to complete 
the Form MCS-150 and to mark their CMVs.

[[Page 67606]]

    The FHWA requests comments from all interested parties on whether 
any of the regulations on the lists should be considered ``off-limits'' 
for the purposes of granting waivers and exemptions. Commenters are 
encouraged to explain in detail why the agency should refuse to 
consider waivers or exemptions to those requirements.

Process for Requesting a Waiver and Applying for an Exemption

    The FHWA has attempted to keep the processes for requesting a 
waiver and applying for an exemption simple. The person requesting a 
waiver or applying for an exemption is required to send a written 
request (which could be a typed or handwritten (printed) letter) to the 
Federal Highway Administrator. The written request must include basic 
information such as the identity of the person who would be covered by 
the waiver or exemption, the name of the motor carrier or other entity 
that would be responsible for the use or operation of CMVs during the 
waiver or exemption period, and the principal place of business of the 
motor carrier or other entity. The interim final rule requires that the 
request or application include a written statement that: (1) Describes 
the event or CMV operation for which the waiver or exemption would be 
used; (2) identifies the regulation from which the applicant is 
requesting relief; (3) estimates the total number of drivers and CMVs 
that would be operated under the terms and conditions of the waiver or 
exemption; and (4) explains how the recipient of the waiver or 
exemption would ensure that they achieve a level of safety that is 
equivalent to, or greater than, the level of safety that would be 
obtained by complying with the regulation. For exemption applications, 
the written request must also include an assessment of the safety 
impacts the exemption may have, describe the impacts (e.g., inability 
to test innovative safety management control systems, etc.) that would 
be experienced if the exemption is not granted, and include a copy of 
all research reports, technical papers, and other publications and 
documents referenced in the application.
    The complete list of information to be included in the requests for 
waivers and applications for exemptions is provided in Sec. 381.210, 
How do I request a waiver?, and Sec. 381.310, How do I apply for an 
exemption?. The FHWA believes these requirements are consistent with 
the statutory language in TEA-21. The agency requests comments on the 
information that persons requesting waivers or applying for exemptions 
are required to submit.

FHWA Procedures for the Review of Waiver Requests

    The Office of Motor Carrier and Highway Safety is responsible for 
reviewing requests for waivers and making recommendations to the 
Federal Highway Administrator (the Administrator). A copy of the 
decision signed by the Administrator will be sent to the applicant. It 
will include the terms and conditions for the waiver, or the reason(s) 
for denying the waiver application.

FHWA Procedures for the Review of Exemption Applications

    With regard to exemptions, the review process differs because of 
the requirements in section 4007 of the TEA-21. The Office of Motor 
Carrier and Highway Safety will review the application for an exemption 
and prepare, for the Administrator's signature, a Federal Register 
notice requesting public comment. After a review of the comments 
received, the Office of Motor Carrier and Highway Safety will make a 
recommendation to the Administrator. Notice of the Administrator's 
decision will be published in the Federal Register.

Initiation and Administration of Pilot Programs

    Although TEA-21 does not require the agency to develop regulations 
concerning pilot programs, the FHWA has included, in subparts D and E 
of part 381, information on how pilot programs are initiated, and the 
statutory requirements for the agency's administration of pilot 
programs, respectively. The agency believes that including information 
on pilot programs in the FMCSRs will provide a more convenient 
reference to the motor carrier industry and the general public than 
title 49 of the United States Code. The regulations indicate that the 
FHWA has the authority to initiate pilot programs after providing 
notice and an opportunity for public comment; they also provide general 
information on the types of information that interested parties should 
submit to the agency if they would like to recommend or suggest a pilot 
program. The information presented in subpart E is intended to be a 
plain-language version of the statutory requirements for the 
administration of pilot programs.

Preemption of State Rules

    Section 4007(d) of the TEA-21 indicates that during the time period 
that a waiver, exemption, or pilot program is in effect, no State shall 
enforce a law or regulation that conflicts with or is inconsistent with 
the waiver, exemption, or pilot program with respect to a person 
operating under a waiver or exemption or participating in a pilot 
program. The FHWA has included the preemption language in part 381, and 
will also include the language in the waiver documents and Federal 
Register notices concerning exemptions and pilot programs. The agency 
believes this approach will ensure that State officials are notified 
about the Federal preemption authority. Including the preemption 
language in the waiver and in the exemption and pilot project notices 
will enable motor carriers to present inspectors with one document 
which informs them of the terms and conditions of the waiver, 
exemption, or pilot program and advises them that State laws and 
regulations that conflict with the waiver, exemption or pilot program 
are automatically preempted, and the duration of the preemption. The 
agency requests comments on this preliminary decision.

Rescission of Waiver Provision 49 CFR Part 383

    The FHWA is rescinding Sec. 383.7, Waiver provisions, of part 383 
concerning commercial driver's license (CDL) standards, requirements 
and penalties. Section 383.7 sets forth the procedures a person must 
follow to petition the FHWA for a waiver of the CDL regulations. 
Because section 4007 of the TEA-21 replaced the statutory standards for 
CDL waivers in 49 U.S.C. 31315 with a new set of standards for waivers, 
exemptions, and pilot programs applicable to all safety regulations, 
Sec. 383.7 is no longer valid and must be rescinded.

Rulemaking Analyses and Notices

    The Administrative Procedure Act (5 U.S.C. 553(b)) provides that 
its notice and comment requirements do not apply when an agency, for 
good cause, finds that they are impracticable, unnecessary, or contrary 
to the public interest. Since section 4007 of the TEA-21 requires the 
FHWA to specify by regulation the procedures by which a person may 
request an exemption within 180 days after the enactment of the 
statute, the FHWA has determined that it is impracticable to publish a 
notice of proposed rulemaking, review the public comments, and issue a 
final rule prior to the December 6, 1998, deadline.
    Although the FHWA did not publish a notice of proposed rulemaking, 
the agency held a public meeting on August 20, 1998, to solicit 
information from interested parties on issues the agency should 
consider in implementing section 4007 of TEA-21. A notice

[[Page 67607]]

announcing the meeting was published on July 29, 1998 (63 FR 40387). 
The notice also provided interested parties with an opportunity to 
submit written comments to the docket. The FHWA has considered the 
remarks of the participants in the August 20 public meeting, and the 
comments submitted to the docket. Therefore, the agency has, to the 
greatest extent practicable given the statutory deadline, made an 
effort to provide the public with an opportunity to offer comments and 
suggestions on how the agency should develop the procedural rules to 
implement section 4007 of the TEA-21.
    The interim final rule establishes the procedures to request 
waivers and to apply for exemptions from the FMCSRs, and the procedures 
the FHWA will use to process the requests for waivers and applications 
for exemptions. The rule also codifies statutory requirements 
concerning the agency's administration of pilot programs. Since the 
interim final does not establish pass-fail criteria (e.g., crash rates, 
safety ratings, compliance review results, driving records, etc.) for 
persons who request waivers or apply for exemptions, the requirements 
are administrative in nature and relate to agency procedure and 
practice.
    Accordingly, the FHWA finds that there is good cause to waive prior 
notice and comment for the limited reasons described above. For the 
same reasons, the FHWA finds, pursuant to 5 U.S.C. 553(d)(3), that 
there is good cause for making the interim final rule effective upon 
publication.
    The interim final rule will remain in effect until the agency 
reviews the comments received in response to this notice and issues a 
final rule. Comments received will be considered in evaluating whether 
any changes to this interim final rule are required.
    All comments received before the close of business on the comment 
closing date indicated at the beginning of this notice will be 
considered and will be available for examination in the docket at the 
location listed under the address section of this notice. Comments 
received after the comment closing date will be filed in the public 
docket and will be considered to the extent practicable, but the FHWA 
may adopt 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, in the public docket, relevant information that becomes available 
after the comment closing date. Interested persons should continue to 
examine the public docket for new material.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    The FHWA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or the 
Department of Transportation's regulatory policies and procedures. This 
interim final rule establishes the rules and procedures concerning the 
handling of requests for waivers and applications for exemptions from 
the FMCSRs, and the initiation and administration of pilot programs. It 
is anticipated that these rules will help to promote increased 
cooperation between the private sector and the government by providing 
a mechanism for exploring alternatives to certain safety regulations, 
while ensuring a level of safety equivalent to, or greater than, that 
obtained by complying with the regulations. The FHWA believes this 
interim final rule could result in incremental, although not 
substantial, economic benefits in those cases in which the alternatives 
provide a more cost-effective approach to ensuring motor carrier 
safety. Therefore, 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 interim final rule on 
small entities. This rulemaking establishes the rules and procedures 
concerning the handling of requests for waivers and applications for 
exemptions from the FMCSRs, and the initiation and administration of 
pilot programs. It is anticipated that theses rules will help to 
promote increased cooperation between the private sector and the 
government by providing a mechanism for exploring alternatives to 
certain safety regulations, while ensuring a level of safety equivalent 
to that obtained by complying with the regulations. The provisions 
concerning waivers and exemptions will be especially beneficial to 
small entities since these entities may be more in need of regulatory 
relief than larger companies. The FHWA has written the regulations in 
question-and-answer format and attempted to use plain language to help 
ensure that small entities understand how to request a waiver and apply 
for an exemption, and how the agency will handle such requests and 
applications. Since the interim final rule does not require small 
entities to take any actions unless they request a waiver or apply for 
an exemption, and the information that would be required as part of the 
request for a waiver and application for an exemption has been kept to 
a minimum, the FHWA believes the economic impact of the rule will be 
minimal. Any economic benefits that small entities might realize from 
this interim rule would be incremental and, thus, not significant 
within the meaning of the Regulatory Flexibility Act. Therefore, the 
FHWA hereby certifies that this action would not have an adverse 
economic impact on, a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

    This interim final rule will not impose a Federal mandate resulting 
in the expenditure by State, local, and tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any one 
year (2 U.S.C. 1532).

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 rule does not have sufficient federalism implications to 
warrant the preparation of a Federalism Assessment.
    Although this rulemaking, in and of itself, does not preempt State 
and local laws and regulations, the waivers and exemptions that would 
be granted under the authority of 49 U.S.C. 31136(e) and 31315 would 
preempt such laws or regulations if they conflict with or are 
inconsistent with the terms and conditions of the waivers or 
exemptions. Also, the exemptions granted as part of a pilot program 
would preempt State and local laws and regulations which conflict with 
or are inconsistent with the terms and conditions of the pilot program.
    The FHWA will consider the preemptive effect of each waiver prior 
to granting the waiver. With regard to exemptions and pilot programs, 
State and local governments will have the opportunity to respond to the 
Federal Register notices required by section 4007 of TEA-21 and inform 
the FHWA of concerns about preemption during the time period that an 
exemption or pilot program would be in effect.

Executive Order 12372 (Intergovernmental Review)

    Catalog of 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.

[[Page 67608]]

Paperwork Reduction Act

    This document does not contain information collection requirements 
for the purposes of the Paperwork Reduction Act of 1995 [44 U.S.C. 3501 
et seq]. However, the waivers, exemptions, and pilot programs will 
include certain information collection requirements as part of the 
terms and conditions for the regulatory relief granted. The agency is 
required by section 4007 of the TEA-21 to monitor the implementation of 
exemptions to ensure compliance with the terms and conditions, and 
ensure that sufficient records are kept by participants in pilot 
programs to facilitate the collection and analysis of data. The FHWA 
will consider the information collection requirements for each waiver, 
exemption, and pilot program and, if necessary, request approval from 
the Office of Management and Budget for any special recordkeeping 
requirements associated with the waiver, exemption, or pilot program.

National Environmental Policy Act

    The agency has analyzed this rulemaking for the purpose of the 
National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) 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 381

    Motor carriers, Motor vehicle equipment, Waivers and exemptions.

49 CFR Part 383

    Commercial driver's license, Commercial motor vehicles, Motor 
carriers.

    Issued on: November 30, 1998.
Kenneth R. Wykle,
Federal Highway Administration.

    In consideration of the foregoing, the FHWA is amending title 49, 
Code of Federal Regulations, chapter III, by adding part 381 and by 
amending part 383 as set forth below:
    1. Part 381 is added to read as follows:

PART 381--WAIVERS, EXEMPTIONS, AND PILOT PROGRAMS

Subpart A--General

Sec.
381.100  What is the purpose of this part?
381.105  Who is required to comply with the rules in this part?
381.110  What definitions are applicable to this part?

Subpart B--Procedures for Requesting Waivers

381.200  What is a waiver?
381.205  How do I determine when I may request a waiver?
381.210  How do I request a waiver?
381.215  What will the FHWA do after the agency receives my request 
for a waiver?
381.220  How long will it take the agency to respond to my request 
for a waiver?
381.225  Who should I contact if I have questions about the 
information I am required to submit to the FHWA or about the status 
of my request for a waiver?

Subpart C--Procedures for Applying for Exemptions

381.300  What is an exemption?
381.305  How do I determine when I may apply for an exemption?
381.310  How do I apply for an exemption?
381.315  What will the FHWA do after the agency receives my 
application for an exemption?
381.320  How long will it take the agency to respond to my 
application for an exemption?
381.325  Who should I contact if I have questions about the 
information I am required to submit to the FHWA or about the status 
of my application for an exemption?
381.330  What am I required to do if the FHWA grants my application 
for an exemption?

Subpart D--Initiation of Pilot Programs

381.400  What is a pilot program?
381.405  Who determines whether a pilot program should be initiated?
381.410  What may I do if I have an idea or suggestion for a pilot 
program?
381.415  Who should I contact if I have questions about the 
information to be included in my suggestion?
381.420  What will the FHWA do after the agency receives my 
suggestion for a pilot program?

Subpart E--Administrative Procedures for Pilot Programs

381.500  What are the general requirements the agency must satisfy 
in conducting a pilot program?
381.505  What are the minimum elements required for a pilot program?
381.510  May the FHWA end a pilot program before its scheduled 
completion date?
381.515  May the FHWA remove approved participants from a pilot 
program?
381.520  What will the FHWA do with the results from a pilot 
program?

Subpart F--Preemption of State Rules

381.600  Do waivers, exemptions, and pilot programs preempt State 
laws and regulations?

    Authority: 49 U.S.C. 31136(e), 31315; 49 CFR 1.48.

Subpart A--General


Sec. 381.100  What is the purpose of this part?

    This part prescribes the rules and procedures for requesting 
waivers and applying for exemptions from those provisions of the 
Federal Motor Carrier Safety Regulations (FMCSRs) which were issued on 
the authority of 49 U.S.C. 31136 or chapter 313, and the initiation and 
administration of pilot programs.


Sec. 381.105  Who is required to comply with the rules in this part?

    (a) You must comply with the rules in this part if you are going to 
request a waiver or apply for an exemption.
    (b) You should follow the instructions in subpart D of this part if 
you would like to recommend the agency initiate a pilot program.


Sec. 381.110  What definitions are applicable to this part?

    Commercial motor vehicle means any motor vehicle that meets the 
definition of ``commercial motor vehicle'' found at 49 CFR 382.107 
concerning controlled substances and alcohol use and testing, 49 CFR 
383.5 concerning commercial driver's license standards, or 49 CFR 390.5 
concerning parts 390 through 399 of the FMCSRs.
    Federal Highway Administrator (the Administrator) means the chief 
executive of the Federal Highway Administration, an agency within the 
Department of Transportation.
    FMCSRs means Federal Motor Carrier Safety Regulations (49 CFR parts 
382 and 383, Secs. 385.21 and 390.21, parts 391 through 393, 395, 396, 
and 399).
    You means an individual or motor carrier or other entity that is, 
or will be, responsible for the operation of a CMV(s). The term 
includes a motor carrier's agents, officers and representatives as well 
as employees responsible for hiring, supervising, training, assigning, 
or dispatching of drivers and employees concerned with the 
installation, inspection, and maintenance of motor vehicle equipment 
and/or accessories. You also includes any interested party who would 
like to suggest or recommend that the FHWA initiate a pilot program.

[[Page 67609]]

Subpart B--Procedures for Requesting Waivers


Sec. 381.200  What is a waiver?

    (a) A waiver is temporary regulatory relief from one or more FMCSR 
given to a person subject to the regulations, or a person who intends 
to engage in an activity that would be subject to the regulations.
    (b) A waiver provides the person with relief from the regulations 
for up to three months.
    (c) A waiver is intended for unique, non-emergency events and is 
subject to conditions imposed by the Administrator.
    (d) Waivers may only be granted from one or more of the 
requirements contained in the following parts and sections of the 
FMCSRs:
    (1) Part 382--Controlled Substances and Alcohol Use and Testing;
    (2) Part 383--Commercial Driver's License Standards; Requirements 
and Penalties;
    (3) Sec. 385.21 Motor Carrier Identification Report;
    (4) Sec. 390.21 Marking of commercial motor vehicles;
    (5) Part 391--Qualifications of Drivers;
    (6) Part 392--Driving of Commercial Motor Vehicles;
    (7) Part 393--Parts and Accessories Necessary for Safe Operation;
    (8) Part 395--Hours of Service of Drivers;
    (9) Part 396--Inspection, Repair, and Maintenance (except 
Sec. 396.25); and
    (10) Part 399--Step, Handhold and Deck Requirements.


Sec. 381.205  How do I determine when I may request a waiver?

    (a) You may request a waiver if one or more FMCSR would prevent you 
from using or operating CMVs, or make it unreasonably difficult to do 
so, during a unique, non-emergency event that will take no more than 
three months to complete.
    (b) Before you decide to request a waiver, you should carefully 
review the regulation to determine whether there are any practical 
alternatives already available that would allow your use or operation 
of CMVs during the event. You should also determine whether you need a 
waiver from all of the requirements in one or more parts of the 
regulations, or whether a more limited waiver of certain sections 
within one or more of the parts of the regulations would provide an 
acceptable level of regulatory relief. For example, if you need relief 
from one of the recordkeeping requirements concerning driver 
qualifications, you should not request relief from all of the 
requirements of part 391.


Sec. 381.210  How do I request a waiver?

    (a) You must send a written request (for example, a typed or 
handwritten (printed) letter), which includes all of the information 
required by this section, to the Federal Highway Administrator, U.S. 
Department of Transportation, 400 Seventh Street, SW., Washington, DC 
20590.
    (b) You must identify the person who would be covered by the 
waiver. The application for a waiver must include:
    (1) Your name, job title, mailing address, and daytime telephone 
number;
    (2) The name of the individual, motor carrier, or other entity that 
would be responsible for the use or operation of CMVs during the 
unique, non-emergency event;
    (3) Principal place of business for the motor carrier or other 
entity (street address, city, State, and zip code); and
    (4) The USDOT identification number for the motor carrier, if 
applicable.
    (c) You must provide a written statement that:
    (1) Describes the unique, non-emergency event for which the waiver 
would be used, including the time period during which the waiver is 
needed;
    (2) Identifies the regulation that you believe needs to be waived;
    (3) Provides an estimate of the total number of drivers and CMVs 
that would be operated under the terms and conditions of the waiver; 
and
    (4) Explains how you would ensure that you could achieve a level a 
safety that is equivalent to, or greater than, the level of safety that 
would be obtained by complying with the regulation.


Sec. 381.215  What will the FHWA do after the agency receives my 
request for a waiver?

    (a) The Office of Motor Carrier and Highway Safety will review your 
request and make a recommendation to the Administrator. The final 
decision whether to grant or deny the application for a waiver will be 
made by the Administrator.
    (b) After a decision is signed by the Administrator, you will be 
sent a copy of the document, which will include the terms and 
conditions for the waiver or the reason for denying the application for 
a waiver.


Sec. 381.220  How long will it take the agency to respond to my request 
for a waiver?

    You should receive a response from the agency within 60 calendar 
days from the date the Administrator receives your request. However, 
depending on the complexity of the issues discussed in your 
application, and the availability of staff to review the material, a 
final decision may take up to 120 days.


Sec. 381.225  Who should I contact if I have questions about the 
information I am required to submit to the FHWA or about the status of 
my request for a waiver?

    You should contact the Office of Motor Carrier Research and 
Standards, Federal Highway Administration, 400 Seventh Street, SW., 
Washington, DC 20590. The telephone number is [phone].

Subpart C--Procedures for Applying for Exemptions


Sec. 381.300  What is an exemption?

    (a) An exemption is temporary regulatory relief from one or more 
FMCSR given to a person or class of persons subject to the regulations, 
or who intend to engage in an activity that would make them subject to 
the regulations.
    (b) An exemption provides the person or class of persons with 
relief from the regulations for up to two years, and may be renewed.
    (c) Exemptions may only be granted from one or more of the 
requirements contained in the following parts and sections of the 
FMCSRs:
    (1) Part 382--Controlled Substances and Alcohol Use and Testing;
    (2) Part 383--Commercial Driver's License Standards; Requirements 
and Penalties;
    (3) Part 391--Qualifications of Drivers;
    (4) Part 392--Driving of Commercial Motor Vehicles;
    (5) Part 393--Parts and Accessories Necessary for Safe Operation;
    (6) Part 395--Hours of Service of Drivers;
    (7) Part 396--Inspection, Repair, and Maintenance (except for 
Sec. 396.25); and
    (8) Part 399--Step, Handhold and Deck Requirements.


Sec. 381.305  How do I determine when I may apply for an exemption?

    (a) You may apply for an exemption if one or more FMCSR prevents 
you from implementing more efficient or effective operations that would 
maintain a level of safety equivalent to, or greater than, the level 
achieved without the exemption.
    (b) Before you decide to apply for an exemption you should 
carefully review the regulation to determine whether there are any 
practical alternatives already available that would allow you to 
conduct your motor carrier operations. You should also determine 
whether you need an exemption from

[[Page 67610]]

all of the requirements in one or more parts of the regulations, or 
whether a more limited exemption from certain sections within one or 
more parts of the regulations would provide an acceptable level of 
regulatory relief. For example, if you need regulatory relief from one 
of the recordkeeping requirements concerning driver qualifications, you 
should not request regulatory relief from all of the requirements of 
part 391.


Sec. 381.310  How do I apply for an exemption?

    (a) You must send a written request (for example, a typed or 
handwritten (printed) letter), which includes all of the information 
required by this section, to the Federal Highway Administrator, U.S. 
Department of Transportation, Federal Highway Administration, 400 
Seventh Street, SW., Washington, DC 20590.
    (b) You must identify the person or class of persons who would be 
covered by the exemption. The application for an exemption must 
include:
    (1) Your name, job title, mailing address, and daytime telephone 
number;
    (2) The name of the individual or motor carrier that would be 
responsible for the use or operation of CMVs;
    (3) Principal place of business for the motor carrier (street 
address, city, State, and zip code); and
    (4) The USDOT identification number for the motor carrier.
    (c) You must provide a written statement that:
    (1) Describes the reason the exemption is needed, including the 
time period during which it is needed;
    (2) Identifies the regulation from which you would like to be 
exempted;
    (3) Provides an estimate of the total number of drivers and CMVs 
that would be operated under the terms and conditions of the exemption;
    (4) Assesses the safety impacts the exemption may have;
    (5) Explains how you would ensure that you could achieve a level a 
safety that is equivalent to, or greater than, the level of safety that 
would be obtained by complying with the regulation; and
    (6) Describes the impacts (e.g., inability to test innovative 
safety management control systems, etc.) you could experience if the 
exemption is not granted by the FHWA.
    (d) Your application must include a copy of all research reports, 
technical papers, and other publications and documents you reference.


Sec. 381.315  What will the FHWA do after the agency receives my 
application for an exemption?

    (a) The Office of Motor Carrier and Highway Safety will review your 
application and prepare, for the Administrator's signature, a Federal 
Register notice requesting public comment on your application for an 
exemption. The notice will give the public an opportunity to review 
your request and your safety assessment or analysis (required by 
Sec. 381.310) and any other relevant information known to the agency.
    (b) After a review of the comments received in response to the 
Federal Register notice described in paragraph (a) of this section, the 
Office of Motor Carrier and Highway Safety will make a 
recommendation(s) to the Administrator to either to grant or deny the 
exemption. Notice of the Administrator's decision will be published in 
the Federal Register.
    (c)(1) If the exemption is granted, the notice will identify the 
provisions of the FMCSRs from which you will be exempt, the effective 
period, and all terms and conditions of the exemption.
    (2) If the exemption is denied, the notice will explain the reason 
for the denial.
    (d) A copy of your application for an exemption and all comments 
received in response to the Federal Register notice will be included in 
a public docket and be available for review by interested parties.
    (1) Interested parties may view the information contained in the 
docket by visiting the Department of Transportation, U.S. DOT Dockets, 
Room PL-401, 400 Seventh Street, SW., Washington DC. All information in 
the exemption docket will be available for examination at this address 
from 10 a.m. to 5 p.m., e.t., Monday through Friday, except Federal 
holidays.
    (2) Internet users can access all information received by the U.S. 
DOT Dockets, Room PL-401, by using the universal resources locator 
(URL): http://dms.dot.gov. It is available 24 hours each day, 365 days 
each year. Please follow the instructions online for more information 
and help.


Sec. 381.320  How long will it take the agency to respond to my 
application for an exemption?

    The agency will attempt to issue a final decision within 180 days 
of the date it receives your application. However, if you leave out 
important details or other information necessary for the FHWA to 
prepare a meaningful request for public comments, the agency will 
attempt to issue a final decision within 180 days of the date it 
receives the additional information.


Sec. 381.325  Who should I contact if I have questions about the 
information I am required to submit to the FHWA or about the status of 
my application for an exemption?

    You should contact the Office of Motor Carrier Research and 
Standards, Federal Highway Administration, 400 Seventh Street, SW., 
Washington, DC 20590. The telephone number is [phone].


Sec. 381.330  What am I required to do if the FHWA grants my 
application for an exemption?

    (a) You must comply with all the terms and conditions of the 
exemption.
    (b) The FHWA will immediately revoke your exemption if:
    (1) You fail to comply with the terms and conditions of the 
exemption;
    (2) The exemption has resulted in a lower level of safety than was 
maintained before the exemption was granted; or
    (3) Continuation of the exemption is determined by the FHWA to be 
inconsistent with the goals and objectives of the FMCSRs.

Subpart D--Initiation of Pilot Programs


Sec. 381.400  What is a pilot program?

    (a) A pilot program is a study in which temporary regulatory relief 
from one or more FMCSR is given to a person or class of persons subject 
to the regulations, or a person or class of persons who intend to 
engage in an activity that would be subject to the regulations.
    (b) During a pilot program, the participants would be given an 
exemption from one or more sections or parts of the regulations for a 
period of up to three years.
    (c) A pilot program is intended for use in collecting specific data 
for evaluating alternatives to the regulations or innovative approaches 
to safety while ensuring that the safety performance goals of the 
regulations are satisfied.
    (d) The number of participants in the pilot program must be large 
enough to ensure statistically valid findings.
    (e) Pilot programs must include an oversight plan to ensure that 
participants comply with the terms and conditions of participation, and 
procedures to protect the health and safety of study participants and 
the general public.
    (f) Exemptions for pilot programs may be granted only from one or 
more of the requirements contained in the following parts and sections 
of the FMCSRs:
    (1) Part 382--Controlled Substances and Alcohol Use and Testing;

[[Page 67611]]

    (2) Part 383--Commercial Driver's License Standards; Requirements 
and Penalties;
    (3) Part 391--Qualifications of Drivers;
    (4) Part 392--Driving of Commercial Motor Vehicles;
    (5) Part 393--Parts and Accessories Necessary for Safe Operation;
    (6) Part 395--Hours of Service of Drivers;
    (7) Part 396--Inspection, Repair, and Maintenance (except for 
Sec. 396.25); and
    (8) Part 399--Step, Handhold and Deck Requirements.


Sec. 381.405  Who determines whether a pilot program should be 
initiated?

    (a) Generally, pilot programs are initiated by the FHWA when the 
agency determines that there may be an effective alternative to one or 
more of the requirements in the FMCSRs, but does not have sufficient 
research data to support the development of a notice of proposed 
rulemaking to change the regulation.
    (b) You may request the FHWA to initiate a pilot program. However, 
the decision of whether to propose a pilot program will be made at the 
discretion of the FHWA. The FHWA is not required to publish a notice in 
the Federal Register requesting public comment on your ideas or 
suggestions for pilot programs.


Sec. 381.410  What may I do if I have an idea or suggestion for a pilot 
program?

    (a) You may send a written statement (for example, a typed or 
handwritten (printed) letter) to the Federal Highway Administrator, 
U.S. Department of Transportation, 400 Seventh Street, SW., Washington, 
DC 20590.
    (b) You should identify the persons or class of persons who would 
be covered by the pilot program exemptions. Your letter should include:
    (1) Your name, job title, mailing address, and daytime telephone 
number;
    (2) The name of the individuals or motor carrier that would be 
responsible for the use or operation of CMVs covered by the pilot 
program, if there are motor carriers that have expressed an interest in 
participating in the program;
    (3) Principal place of business for the motor carrier (street 
address, city, State, and zip code); and
    (4) The USDOT identification number for the motor carrier.
    (c) You should provide a written statement that:
    (1) Presents your estimate of the potential benefits to the motor 
carrier industry, the FHWA, and the general public if the pilot program 
is conducted, and describes how you developed your estimate;
    (2) Estimates of the amount of time that would be needed to conduct 
the pilot program (e.g., the time needed to complete the collection and 
analysis of data);
    (3) Identifies the regulation from which the participants would 
need to be exempted;
    (4) Recommends a reasonable number of participants necessary to 
yield statistically valid findings;
    (5) Provides ideas or suggestions for a monitoring plan to ensure 
that participants comply with the terms and conditions of 
participation;
    (6) Provides ideas or suggestions for a plan to protect the health 
and safety of study participants and the general public.
    (7) Assesses the safety impacts the pilot program exemption may 
have; and
    (8) Provides recommendations on how the safety measures in the 
pilot project would be designed to achieve a level a safety that is 
equivalent to, or greater than, the level of safety that would be 
obtained by complying with the regulation.
    (d) Your recommendation should include a copy of all research 
reports, technical papers, publications and other documents you 
reference.


Sec. 381.415  Who should I contact if I have questions about the 
information to be included in my suggestion?

    You should contact the Office of Motor Carrier Research and 
Standards, Federal Highway Administration, 400 Seventh Street, SW., 
Washington, DC 20590. The telephone number is [phone].


Sec. 381.420  What will the FHWA do after the agency receives my 
suggestion for a pilot program?

    (a) The Office of Motor Carrier and Highway Safety will review your 
suggestion for a pilot program and make a recommendation to the 
Administrator. The final decision whether to propose the development of 
a pilot program based upon your recommendation will be made by the 
Administrator.
    (b) You will be sent a copy of the Administrator's decision. If the 
pilot program is approved, the agency will follow the administrative 
procedures contained in subpart E of this part.

Subpart E--Administrative Procedures for Pilot Programs


Sec. 381.500  What are the general requirements the agency must satisfy 
in conducting a pilot program?

    (a) The FHWA may conduct pilot programs to evaluate alternatives to 
regulations, or innovative approaches, concerning motor carrier, CMV, 
and driver safety.
    (b) Pilot programs may include exemptions from the regulations 
listed in Sec. 381.400(f) of this part.
    (c) Pilot programs must, at a minimum, include all of the program 
elements listed in Sec. 381.505.
    (d) The FHWA will publish in the Federal Register a detailed 
description of each pilot program, including the exemptions to be 
considered, and provide notice and an opportunity for public comment 
before the effective date of the pilot program.


Sec. 381.505  What are the minimum elements required for a pilot 
program?

    (a) Safety measures. Before granting exemptions for a pilot 
program, the FHWA will ensure that the safety measures in a pilot 
program are designed to achieve a level of safety that is equivalent 
to, or greater than, the level of safety that would be achieved by 
complying with the regulations.
    (b) Pilot program plan. Before initiating a pilot program, the FHWA 
will ensure that there is a pilot program plan which includes the 
following elements:
    (1) A scheduled duration of three years or less;
    (2) A specific data collection and safety analysis plan that 
identifies a method of comparing the safety performance for motor 
carriers, CMVs, and drivers operating under the terms and conditions of 
the pilot program, with the safety performance of motor carriers, CMVs, 
and drivers that comply with the regulation;
    (3) A reasonable number of participants necessary to yield 
statistically valid findings;
    (4) A monitoring plan to ensure that participants comply with the 
terms and conditions of participation in the pilot program;
    (5) Adequate safeguards to protect the health and safety of study 
participants and the general public; and
    (6) A plan to inform the States and the public about the pilot 
program and to identify approved participants to enforcement personnel 
and the general public.


Sec. 381.510  May the FHWA end a pilot program before its scheduled 
completion date?

    The FHWA will immediately terminate a pilot program if there is 
reason to believe the program is not achieving a level of safety that 
is at least equivalent to the level of safety that would be achieved by 
complying with the regulations.

[[Page 67612]]

Sec. 381.515  May the FHWA remove approved participants from a pilot 
program?

    The Administrator will immediately revoke participation in a pilot 
program of a motor carrier, CMV, or driver for failure to comply with 
the terms and conditions of the pilot program, or if continued 
participation is inconsistent with the goals and objectives of the 
safety regulations.


Sec. 381.520  What will the FHWA do with the results from a pilot 
program?

    At the conclusion of each pilot program, the FHWA will report to 
Congress the findings and conclusions of the program and any 
recommendations it considers appropriate, including suggested 
amendments to laws and regulations that would enhance motor carrier, 
CMV, and driver safety and improve compliance with the FMCSRs.

Subpart F--Preemption of State Rules


Sec. 381.600  Do waivers, exemptions, and pilot programs preempt State 
laws and regulations?

    Yes. During the time period that a waiver, exemption, or pilot 
program authorized by this part is in effect, no State shall enforce 
any law or regulation that conflicts with or is inconsistent with the 
waiver, exemption, or pilot program with respect to a person operating 
under the waiver or exemption or participating in the pilot program.

PART 383--[AMENDED]

    2. The authority citation for 49 CFR Part 383 continues to read as 
follows:

    Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; and 49 CFR 
1.48.


Sec. 383.7  [Removed and Reserved]

    3. Section 383.7 is removed and reserved.

[FR Doc. 98-32454 Filed 12-7-98; 8:45 am]
BILLING CODE 4910-22-P