[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, (202) 366-4009; or Mr. Charles
E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-1354,
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 (202) 512-1661. 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 (202) 366-1790.
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 (202) 366-1790.
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 (202) 366-1790.
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
