33254 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

For reasons set forth in the preamble,

LSC amends Chapter XVI of Title 45 by

adding part 1644 as follows:

PART 1644—DISCLOSURE OF CASE

INFORMATION

Sec.

1644.1 Purpose.

1644.2 Definitions.

1644.3 Applicability.

1644.4 Case disclosure requirement.

1644.5 Recipient policies and procedures.

Authority: Pub. L. 105–119, 111 Stat. 2440,

Sec. 505; Pub. L. 104–134, 110 Stat. 1321; 42

U.S.C. 2996g(a).

§ 1644.1 Purpose.

The purpose of this rule is to ensure

that recipients disclose to the public

and to the Corporation certain

information on cases filed in court by

their attorneys.

§ 1644.2 Definitions.

For the purposes of this part:

(a) To disclose the cause of action

means to provide a sufficient

description of the case to indicate the

type or principal nature of the case.

(b) Recipient means any entity

receiving funds from the Corporation

pursuant to a grant or contract under

section 1006(a)(1)(A) of the Act.

(c) Attorney means any full-time or

part-time attorney employed by the

recipient as a regular or contract

employee.

§ 1644.3 Applicability.

(a) The case disclosure requirements

of this part apply:

(1) To actions filed on behalf of

plaintiffs or petitioners who are clients

of a recipient;

(2) Only to the original filing of a case,

except for appeals filed in appellate

courts by a recipient if the recipient was

not the attorney of record in the case

below and the recipient’s client is the

appellant;

(3) To a request filed on behalf of a

client of the recipient in a court of

competent jurisdiction for judicial

review of an administrative action; and

(4) To cases filed pursuant to

subgrants under 45 CFR part 1627 for

the direct representation of eligible

clients, except for subgrants for private

attorney involvement activities under

part 1614 of this chapter.

(b) This part does not apply to any

cases filed by private attorneys as part

of a recipient’s private attorney

involvement activities pursuant to part

1614 of this chapter.

§ 1644.4 Case disclosure requirement.

(a) For each case filed in court by its

attorneys on behalf of a client of the

recipient after January 1, 1998, a

recipient shall disclose, in accordance

with the requirements of this part, the

following information:

(1) The name and full address of each

party to a case, unless:

(i) the information is protected by an

order or rule of court or by State or

Federal law; or

(ii) the recipient’s attorney reasonably

believes that revealing such information

would put the client of the recipient at

risk of physical harm;

(2) The cause of action;

(3) The name and full address of the

court where the case is filed; and

(4) The case number assigned to the

case by the court.

(b) Recipients shall provide the

information required in paragraph (a) of

this section to the Corporation in

semiannual reports in the manner

specified by the Corporation. Recipients

may file such reports on behalf of their

subrecipients for cases that are filed

under subgrants. Reports filed with the

Corporation will be made available by

the Corporation to the public upon

request pursuant to the Freedom of

Information Act, 5 U.S.C. 552.

(c) Upon request, a recipient shall

make the information required in

paragraph (a) of this section available in

written form to any person. Recipients

may charge a reasonable fee for mailing

and copying documents.

§ 1644.5 Recipient policies and

procedures.

Each recipient shall adopt written

policies and procedures to implement

the requirements of this part.

June 15, 1998.

Victor M. Fortuno,

General Counsel.

[FR Doc. 98–16243 Filed 6–17–98; 8:45 am]

BILLING CODE 7050–01–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 387, 390, 391, 392, 395,

396, and 397

[FHWA Docket No. FHWA–97–2328; MC–97–

3]

RIN 2125–AD72

Review of the Federal Motor Carrier

Safety Regulations; Regulatory

Removals and Substantive

Amendments

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Final rule.

SUMMARY: The FHWA is adopting a final

rule to remove, amend, and redesignate

certain provisions of the Federal Motor

Carrier Safety Regulations concerning

financial responsibility; general

applicability and definitions; accident

recordkeeping requirements;

qualifications of drivers; driving of

commercial motor vehicles; hours of

service of drivers; inspection, repair,

and maintenance; and the transportation

of hazardous materials. The agency

considers many of these regulations to

be obsolete, redundant, unnecessary,

ineffective, or burdensome. Others are

more appropriately regulated by State

and local authorities, better addressed

by company policy, in need of

clarification, or more appropriately

contained in another section. This

action is consistent with the FHWA’s

Zero Base Regulatory Review and the

President’s Regulatory Reinvention

Initiative.

EFFECTIVE DATE: July 20, 1998.

FOR FURTHER INFORMATION CONTACT: Ms.

Deborah M. Freund, Office of Motor

Carrier Research and Standards, (202)

366–4009, or Mr. Charles E. Medalen,

Office of the Chief Counsel, (202) 366–

1354, Federal Highway Administration,

Department of Transportation, 400

Seventh Street, SW., Washington, DC

20590–0001. Office hours are from 7:45

a.m. to 4:15 p.m., e.t., Monday through

Friday, except Federal holidays.

SUPPLEMENTARY INFORMATION:

Background

As part of its Zero Base Regulatory

Review Program, the FHWA published

a notice of proposed rulemaking in the

Federal Register on January 27, 1997

(62 FR 3855) to request comment on an

extensive list of changes proposed

concerning Parts 387, 390, 391, 392,

395, 396, and 397 of the Federal Motor

Carrier Safety Regulations (FMCSRs).

The agency had implemented an earlier

set of changes to the FMCSRs on

November 23, 1994 (59 FR 60319) after

receiving comments to a notice of

proposed rulemaking published on

January 10, 1994 (59 FR 1366). The

agency had also published a final rule

on July 28, 1995 (60 FR 38739) making

technical corrections to keep the

FMCSRs accurate and up to date.

Discussion of Comments

The FHWA extended the comment

period for the NPRM on March 27, 1997

(62 FR 14662). Comments to the docket

were accepted through May 12, 1997.

Comments were received from 55

organizations, companies, and

individuals as follows:

Ten States (State of California

Business, Transportation, and Housing

Agency; Colorado Department of Public
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33255

Safety; State of Connecticut; Delaware

Department of Public Safety; State of

Idaho Transportation Department; State

of Missouri Department of Revenue and

Department of Economic Development;

North Dakota Department of

Transportation; Commonwealth of

Pennsylvania; Vermont Department of

Motor Vehicles; Wisconsin Department

of Transportation); and one city (City of

Littleton, Colorado);

Five power utilities operating

commercial motor vehicles (Alabama

Power, Duquesne Light Company,

Houston Lighting and Power, Southern

Company Services, Inc., Virginia

Power);

Six manufacturers and distributors of

explosives (Austin Powder Company,

Viking Explosives and Supply, Inc.,

Dyno Nobel, Inc., the Ensign-Bickford

Company, Maynes Explosives Company,

Sierra Chemical Company);

Two professional associations of the

explosives industry (Institute of Makers

of Explosives, International Society of

Explosives Engineers);

Four consumer and safety advocacy

groups (Advocates for Highway and

Auto Safety, Transportation Consumer

Protection Council, Inc., New York

Operation Lifesaver, Operation

Lifesaver, Inc.);

Four freight railroads and commuter

rail lines (CSX Transportation,

Louisiana Railroads, Metra (Northeast

Illinois Regional Commuter Railroad

Corporation), Vermont Railroad/

Clarendon and Pittsford);

Nine transportation industry

associations (American Bus Association

(ABA), American Trucking Associations

(ATA), Association of American

Railroads (AAR), Association of Waste

Hazardous Materials Transporters

(AWHMT), Distribution and LTL

Carriers Association, National

Automobile Dealers Association

(NADA), National School

Transportation Association (NSTA),

National Tank Truck Carriers, Inc.

(NTTC), Petroleum Marketers

Association of America (PMAA));

Four drivers’ organizations, labor

unions, and other professional

organizations (Brotherhood of

Locomotive Engineers, International

Association of Fire Fighters, OwnerOperator Independent Drivers

Association, United Transportation

Union);

Three motor carriers (Air Products

and Chemicals, Ameritech, Radian

International);

Two firms providing services to motor

carriers (Consolidated Safety Services,

Inc., DAC Services);

Three government agencies and

associations of government

organizations (American Association of

Motor Vehicle Administrators, National

Road Transport Commission of

Australia, National Transportation

Safety Board); and

Two individuals (Hoy Richards,

Richards and Associates; O. Bruce

Bugg).

Section 387.5, Definitions

[Transportation of Property]

Under the statutory authority

provided by 49 U.S.C 31139, the

Secretary of Transportation is required

to set forth regulations to require

minimum levels of financial

responsibility for the transportation of

property for compensation by motor

vehicles in interstate commerce. The

FHWA proposed to amend the

definitions in § 387.5 to make clear that

for-hire transportation—transportation

for compensation—included

transportation by contract, common,

and exempt motor carriers of property.

The Transportation Consumer

Protection Council (TCPC) noted that,

although the ICC Termination Act of

1995 (Pub. L. 104–88, 109 Stat. 803)

eliminated the distinction between

‘‘common’’ and ‘‘contract’’ motor

carriers, the terms still appear in

proposed text of revised FMCSR

sections. The TCPC also pointed out

what it believed were errors in some

citations.

The Owner-Operator Independent

Drivers Association (OOIDA) supported

the revision of the definition of ‘‘motor

carrier’’ and suggested the elimination

of the distinction between ‘‘motor

common carrier’’ and ‘‘motor contract

carrier.’’

The National Automobile Dealers

Association (NADA) suggested that the

preamble of the final rule include

several examples of transportation

involving a variety of facts and

circumstances.

The Association of Waste Hazardous

Materials Transporters (AWHMT)

favored the proposed revision to

eliminate what it viewed as obsolete

definitions. Although the AWHMT

agreed that transporters of hazardous

materials should be subject to the

financial responsibility provisions of

part 387, it referenced a 1982 Interstate

Commerce Commission (ICC) ruling that

hazardous waste destined for disposal

was not considered ‘‘property.’’ The

AWHMT recommended that the

‘‘property’’ definition in part 387

include ‘‘a motor vehicle with a gross

vehicle weight rating of 10,000 pounds

or more in interstate or foreign

commerce.’’

The OOIDA recommended

eliminating the distinction between

‘‘exempt’’ and ‘‘non-exempt’’

commodities. The OOIDA holds that the

economic regulations forming the basis

for the definitions no longer exist at the

Federal level. The OOIDA asserts that

some States will not alter their

regulations, and will continue to require

duplicate registrations and separate

insurance coverages until the

definitions are changed through Federal

regulation.

FHWA Response

The FHWA plans to address the

definitional issue of for-hire motor

carriers of property in detail in the

context of future rulemakings

addressing the commercial regulation of

motor carriers. Responsibility for these

regulations was transferred from the ICC

to the DOT under the provisions of the

ICC Termination Act of 1995.

The definition of ‘‘motor carrier’’ is

revised to make it consistent with the

definition as it appears in § 390.5. The

terse definition proposed in the NPRM

did not include the agents, officers and

representatives of the motor carrier, nor

its employees responsible for driver or

vehicle safety.

As for the AWHMT’s concern, the

FHWA used the term ‘‘property’’ to

differentiate between two types of

transportation—non-passengers and

passengers. The merits of using other

terms, such as ‘‘goods’’ or

‘‘commodities’’ as a substitute for the

‘‘property’’ could be debated. However,

the term ‘‘property’’ is of longstanding

use and is clearly understood to imply

non-passenger transportation. In this

context, the term also includes

transportation of refuse and hazardous

materials waste.

Section 387.27(b)(4), Exceptions to

Applicability [School Bus

Transportation]

The American Bus Association (ABA)

suggested using the term ‘‘for-hire

carrier under contract’’ rather than

‘‘contract motor carrier’’ to be consistent

with other definitions in part 387,

§ 387.27(b)(4). The ABA also

recommended that the ‘‘extracurricular’’

trips envisioned in the proposal have

some preponderant educational purpose

to qualify for the exemption from the

minimum financial responsibility

requirements. The ABA expressed

concern that school districts could

contract to transport students to

amusement parks or other noneducational destinations, without any

insurance coverage for the passengers or

the public.
33256 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

FHWA Response

This revision adopted today is

consistent with an interpretation issued

on April 4, 1997 (62 FR 16370, at 16403)

as part of the Regulatory Guidance for

the Federal Motor Carrier Safety

Regulations. It is also consistent with

Congressional intent. In certain

instances, motor carriers providing

school bus transportation are not subject

to the Bus Regulatory Reform Act of

1982 and the minimum financial

responsibility requirements (part 387)

issued under this Act (49 U.S.C.

31138(e)(1)). Transportation of school

children and teachers that is organized,

sponsored, and paid for by the school

district is not subject to part 387 (49

CFR 387.27(b)(1)). Therefore, school bus

contractors are not subject to the Federal

financial responsibility requirements for

interstate trips such as sporting events

and class trips, but they must comply

with all other requirements of the

FMCSRs. They would, however, be

subject to State financial responsibility

requirements.

In today’s final rule, the term

‘‘contract motor carrier’’ replaces

‘‘motor carrier under contract.’’ In all

other respects, the final rule uses the

language proposed in the NPRM.

Section 387.29, Definition, ‘‘For-Hire

Carriage’’ [Passenger Transportation]

The FHWA proposed to amend this

definition to codify regulatory guidance

issued on November 17, 1993 (58 FR

60734) and slightly revised on April 4,

1997 (62 FR 16370, at 16406–16407).

This guidance made clear the intent of

the definition to cover transportation:

(1) generally available to the public and

(2) performed for a commercial purpose

by a motor carrier who receives

compensation for the transportation

service.

The ABA believed there may be some

confusion about the concept ‘‘generally

available to the public.’’ It pointed out

that many bus service contracts might

not in fact be available to the general

public. An example of this would be a

contract with a corporation to transport

employees between the corporation’s

facilities. The ABA noted that the

FHWA still issues permits for motor

contract carriers of passengers. The ABA

recommended that the term be defined

to include motor contract carriage

operations.

FHWA Response

The FHWA is adopting a more direct

definition than that proposed in the

NPRM: ‘‘For-hire motor carrier of

passengers means a person engaged in

the business of transporting, for

compensation, passengers and their

property, including any compensated

transportation of the goods or property

of another.’’ This definition more clearly

expresses the FHWA’s intent to cover all

types of for-hire passenger

transportation, irrespective of the

business relationship between the

transportation provider and the

customer. Because many motor carriers

of passengers also transport the

passengers’ property (for example, their

luggage), and, possibly, small packages

not accompanying the passengers, the

term ‘‘goods or property of another’’ is

included in the definition.

Section 390.3(f)(2), Accident Register

Requirement for Federal, State, and

Local Government Agencies

The FHWA proposed removing the

requirement that government agencies

described in this section maintain an

accident register for transportation

activities involving interstate charter

transportation of passengers.

The ABA opposed the proposal. It

noted that, although governmental

entities are not subject to FHWA

compliance reviews, they are essentially

unregulated from a safety standpoint

(except for the commercial drivers

license (CDL) and related controlled

substance and alcohol testing

regulations). The ABA argued that the

FHWA will have no other means to

obtain accident information about this

segment of the charter service

population. The ABA asserted that the

minimal burden imposed on the public

transit agencies is outweighed by the

need to obtain this information to make

informed decisions on regulatory

policies. It added, ‘‘[A]s the Federal

Transit Administration continues to

purchase intercity buses for suburban

commuter operations, which buses

might also be used for charter

operations, this lack of accident

information could be magnified.’’

FHWA Response

The FHWA believes government

agencies have a strong self-interest in

maintaining safe operations. The fact

that they are not subject to compliance

reviews probably does not influence

their recordkeeping practices

concerning accidents. Furthermore, any

accidents their vehicles are involved in

are a matter of public record, and this

information could be gathered readily if

the need arises. Accordingly, paragraph

390.3(f)(2) is revised as proposed in the

NPRM.

Section 390.5, Definitions

Accident

The FHWA attempted to clarify the

meaning of the term ‘‘public road’’ in

the definition of ‘‘accident.’’ The term

‘‘public road’’ was defined to include

privately owned roads accessible to the

general public. The intent of the

proposed change was to emphasize that

the defining factor is the road’s

accessibility to the public, rather than

its owner’s identity.

Commenters addressing this issue

were: the Austin Powder Company

(letters from its Director of Safety and

Compliance and another employee who

is Chairman of the American National

Standards Institute A10.7 Standard

Committee), Institute of Makers of

Explosives (IME), International Society

of Explosives Engineers, Viking

Explosives & Supply, Inc., Dyno Nobel,

Inc., Maynes Explosives Company,

Sierra Chemical Company (letters from

three officials and a staff engineer), and

the Ensign-Bickford Company.

The commenters were concerned that

the proposed revision to the definition

of ‘‘accident,’’ and, in particular, the

‘‘public road’’ portion of the definition,

could require many existing explosive

storage facilities (magazines) to be

closed, relocated, or have their storage

capacities reduced. Several commenters

noted that many of these magazines are

currently accessed by private roads, or

are located near private roads.

The associations, manufacturers, and

users of explosives provided consistent

commentary and background for their

positions. The IME first developed a

safety standard to provide protection

from explosives storage sites in 1910.

This was done at the request of the

Bureau of Explosives (now part of the

Department of the Treasury, Bureau of

Alcohol, Tobacco, and Firearms (ATF)).

The standard has been revised and

updated over the years and is currently

published as IME Safety Library

Publication No. 2, ‘‘The American Table

of Distances.’’ This table is incorporated

into the regulations of the Occupational

Safety and Health Administration

(OSHA) (29 CFR 1910.109), the ATF (27

CFR 55.11 and 55.218), State

regulations, ANSI standards, National

Fire Protection Association standards,

Uniform Fire Code, U.S. Army Corps of

Engineers, Building Officials and Code

Administrators, Southern Building

Code, and other national safety

standards and codes. Most of the

commenters on this issue stated they

use ANSI Standard A10.7, ‘‘Commercial

Explosives and Blasting Agents—Safety

Requirements for Transportation

Storage, Handling, and Use’’ to provide
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33257

minimum recommendations for locating

explosive storage sites in reference to

inhabited buildings, public highways,

and passenger railways.

The definition of ‘‘highway’’

applicable to the American Table of

Distances (29 CFR 1910.109(c)(1)(v),

Table H–21) is ‘‘any public street, public

alley, or public road.’’ Commenters

stated that the table has never been used

to refer to ‘‘private’’ roads on

construction sites, distribution sites,

and the like. If the definition were to be

changed to include ‘‘private’’ roads

which may be accessible to the public,

the commenters believed many existing

explosive storage facilities (magazines),

currently accessed by private roads, or

located near private roads, may be

forced to close or to significantly reduce

their capacity due to quantity/distance

restrictions. Several commenters

expressed particular concern with a

sentence in the preamble to the NPRM

which stated: ‘‘Therefore, accessibility

to the public, not the identity of the

owner, is the major factor which

determines whether a road or way is

public.’’ The IME noted:

Explosive storage facilities on mining

properties, quarrying operations, and

construction projects are accessed by mine

and construction roads or are located in

proximity to such roads. These roads have

never been considered ‘‘public roads’’ for

purposes of determining quantity/distance

separations even though the public may have

access to such roads (it would be a physical

impossibility to fence off the hundreds of

square miles on such sites in order to restrict

public accessibility). Although such roads are

generally posted and/or barricaded,

experience has shown that even fences and

roving patrols cannot keep the ‘‘public’’ in

four wheel drive vehicles, all terrain vehicles

(ATVs), snowmobiles, etc. from traveling the

roads, especially during hunting and fishing

seasons.

For over eighty years, the term ‘‘public

road’’ has always been regarded by the

explosives, blasting, mining, quarrying, and

construction industries to mean a road that

was constructed, financed, maintained, and

controlled by some political subdivision.

Two commenters asked for

clarification concerning the

applicability of the proposed definition

to accidents on private property. The

National Automobile Dealers

Association (NADA) asked the FHWA to

clarify whether the definition would

extend to accidents occurring on truck

dealership properties. The State of

Idaho Transportation Department

wished clarification concerning parking

lots, garages, and private roads around

stadiums, shopping malls, and similar

facilities.

FHWA Response

The FHWA has never intended to

expand the definition of ‘‘public road’’

to encompass any roadway only

remotely accessible to the public at

large. The agency’s intent was to codify

an interpretation published in the April

4, 1997, Regulatory Guidance for the

Federal Motor Carrier Safety

Regulations (62 FR 16370, at 16408).

That interpretation reads as follows:

Section 390.5 Definitions

* * * * *

Question 26: What is considered a

‘‘public road’’?

Guidance: A public road is any road

under the jurisdiction of a public agency

and open to public travel or any road on

private property that is open to public

travel.

Many roads performing the identical

access functions of ‘‘public roads’’ are,

in fact, constructed, operated, and,

sometimes, maintained by nongovernmental entities. These entities

include shopping center owners,

commercial real estate developers, and

homeowners associations. These roads

are nearly always designed, constructed,

marked, signed, and signaled in

conformance with national, State, and

local guidelines, regulations, and

ordinances. In these times of scarce

governmental resources, commercial

and private enterprises are more often

being required to provide the immediate

access to their proposed land

developments as a quid pro quo for

obtaining a zoning approval and

construction permit for a facility

generating personal and vehicular travel

on the surrounding roadway network. In

addition, conformity with design and

construction practices is usually a

requirement for a local governmental

entity to take over the maintenance of

the completed facility.

Another term, ‘‘Open to public

travel,’’ found at 23 CFR 460, clearly

expresses the FHWA’s intent. The

definition reads as follows:

Open to public travel means that the

road section is available, except during

scheduled periods, extreme weather or

emergency conditions, passable by fourwheel standard passenger cars, and

open to the general public for use

without restrictive gates, prohibitive

signs, or regulation other than

restrictions based on size, weight, or

class of registration. Toll plazas of

public toll roads are not considered

restrictive gates.

The FHWA believes the definition

specifically addresses the IME’s concern

because it excludes road sections

barricaded or posted.

Another issue is the nature of the

storage of commercial explosives.

Footnote 5 to the American Table of

Distances reads as follows:

This table applies only to the

manufacture and permanent storage of

commercial explosives. It is not

applicable to the transportation of

explosives, or any handling or

temporary storage necessary or incident

thereto. It is not intended to apply to

bombs, projectiles, or other heavily

encased explosives.

The FHWA believes the IME’s and

other commenters’ concerns about the

potential necessity of relocating

explosives magazines may extend

beyond the application of the American

Table of Distances. Many magazines,

such as those used in the earthmoving

stages of road construction projects, are

temporary storage facilities.

The FHWA is substituting the term

‘‘road open to public travel’’ for the term

‘‘public road’’ in the definition of

‘‘accident.’’ It is discussed in detail

under the heading, ‘‘Highway,’’ later in

this document.

The NADA and the State of Idaho

Transportation Department asked about

accidents taking place on a truck

dealership’s property, parking lots,

parking garages, and roads providing

access to shopping malls, stadiums, and

similar facilities. If the property is

‘‘open to public travel,’’ a motor carrier

would be required to record those

accidents under § 390.15. In general, the

FHWA considers the following ungated

facilities to be open to public travel:

Customer parking lots, garages and

access roads to malls, stadiums, etc. On

the other hand, gated parking lots,

garages, etc., are not open to public

travel. The customer parking areas of a

truck dealership are open to the public,

whereas areas of the dealership used to

park or store new and used vehicles

prior to sale generally are not.

Commercial Motor Vehicle

The FHWA proposed to revise the

definition of commercial motor vehicle

to provide consistent definitions of

designed passenger capacity and

transportation of hazardous materials in

§§ 383.5 and 390.5. The FHWA received

no comments on this element of the

proposal.

The definition is, therefore, revised as

proposed in the NPRM, with two minor

changes. The first change deletes the

modifying term ‘‘public’’ (as in ‘‘public

highway’’) because the term ‘‘highway’’

is now defined and added to the

definitions. The second change deletes

the Code of Federal Regulations citation

for the Hazardous Materials Regulations

because the FHWA believes the motor
33258 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

carriers subject to these regulations are

well aware of the reference, and a crossreference here is superfluous.

Several commenters addressed the

issue of the weight threshold for

commercial motor vehicles subject to

the FMCSRs. Those comments appear

under ‘‘Comments to FMCSR sections

not addressed in the NPRM,’’ later in

this document.

Highway

Because of the concern generated by

the FHWA’s proposal to revise the use

of the term ‘‘public road’’ in the

definition of ‘‘accident,’’ the FHWA is

adding the term ‘‘highway’’ to the

definitions of § 390.5. This definition

builds upon the definition in Section 1–

127 of the ‘‘Uniform Vehicle Code and

Model Traffic Ordinance’’ (UVCMTO),

1992 Edition, published by the National

Committee on Uniform Traffic Laws and

Ordinances in Evanston, Illinois, which

reads as follows:

§ 1–127—Highway.—The entire width

between the boundary lines of every way

publicly maintained when any part thereof is

open to the use of the public for purposes of

vehicular travel (emphasis added).

The FHWA has modified this

definition and added it to those

proposed in the NPRM: Highway means

any road, street, or way, whether on

public or private property, open to

public travel. ‘‘Open to public travel,’’

as defined at 23 CFR 460.2, will be

incorporated in this definition.

The key difference between the

Uniform Vehicle Code definition and

the definition the FHWA is adopting is

the public-use nature of the facility,

rather than its ownership or

maintenance.

Intermittent, Casual, or Occasional

Driver

Section 391.63 contains a limited

exemption from certain driver

qualification requirements for an

‘‘intermittent, casual, or occasional

driver.’’ This term is defined in § 390.5

as a driver, who in any period of 7

consecutive days, is employed by more

than a single motor carrier. Section

390.5 also defines a ‘‘regularly

employed driver’’ as a driver employed

or used solely by a single motor carrier

in any period of 7 consecutive days. The

FHWA proposed to replace the term

‘‘intermittent, casual, or occasional

driver’’ with the term ‘‘multipleemployer driver’’ to clarify both

definitions.

Radian International LLC (Radian) is

concerned that the proposed term

‘‘multi-employer driver’’ would

drastically alter the meaning of the

current definition and eliminate the

relief from certain recordkeeping

requirements it provides. Radian, an

environmental engineering firm,

occasionally requires its employees to

drive a company-owned commercial

motor vehicle (CMV) with a gross

vehicle weight rating (GVWR) of more

than 10,000 pounds (4,545 kilograms) to

test sites. It cited a letter of

interpretation issued by the Office of

Motor Carrier Standards on October 2,

1992, advising that its drivers were

intermittent, casual, or occasional in

this situation and that §§ 391.63 and

395.8(j)(2) of the FMCSRs would be

applicable to Radian’s situation.

FHWA Response

The FHWA has reassessed the 1992

letter of interpretation and now believes

it was erroneous. A driver who is

employed by a single motor carrier

meets the definition of a regularly

employed driver in § 390.5 even though

he or she might drive a CMV only

intermittently or occasionally. Radian

provided no information at the time the

interpretation was requested to support

classification of its employees as

anything other than ‘‘regularly

employed drivers,’’ unless they drive

CMVs for other motor carriers during

any period of 7 consecutive days. The

fact that these employees may only

occasionally drive CMVs as part of their

assigned duties does not change this

fact. No other commenter challenged the

revision to the definition, and it is being

adopted as proposed. The 1992 letter of

interpretation is therefore overruled.

The administrative adjustments Radian

must make are not arduous. Potentially,

they can provide Radian with additional

assurance of the safe driving records of

its employees.

The FHWA will delete the second

sentence of the definition proposed in

the NPRM, referencing the

qualifications of these drivers. Under

Subpart G, Limited Exemptions,

§§ 391.63 and 391.65 provide clear

guidance to the exemptions for

multiple-employer drivers and drivers

furnished by other motor carriers.

The term ‘‘single-employer driver’’

replaces the term ‘‘regularly-employed

driver’’ as proposed in the NPRM.

Interstate Commerce

The FHWA proposed to revise the

definition of interstate commerce to

clarify that transportation within a

single State is considered interstate

commerce if this transportation

continues a through movement

originating outside the State, or has a

destination outside the State.

The Advocates for Highway and Auto

Safety (AHAS) stated its strong support

of the proposal to clarify the definition.

The NTTC advised the FHWA to

coordinate with the Research and

Special Programs Administration on

jurisdictional questions of interstate/

intrastate hazardous materials

transportation, and particularly

recommended that the FHWA review

the comprehensive HM–223 and HM–

200 rulemakings concerning operation

of non-specification cargo tank motor

vehicles.

The Distribution and LTL Carriers

Association (LTL) recommended that

paragraph (3) of the definition be

revised to read: ‘‘Between two places in

a State as part of trade, traffic, or

transportation which has originated

from outside the State or is destined by

the shipper to go outside the State.’’

In a related comment, the AHAS

requested the FHWA to address

‘‘commercial vehicle axle and gross

weight limits for trucks operating

wholly intrastate but engaging in

transport that is interstate in character,

hours of service requirements that

diverge from the federal standards of 23

CFR Pt. 395 [sic], and States that

establish overall length limits for trucks

as viewed within the limitations and

grandfathering provisions of 49 U.S.C.

§ 31111(b). We do not regard the

interpretation of these and a number of

other topics as obvious when certain

intrastate commercial movements are

denominated interstate.’’ The AHAS did

not explain how it defined ‘‘transport

that is interstate in character.’’

FHWA Response

Although the LTL’s suggested revision

does not cover international

movements, it is otherwise more

concrete than the proposed definition.

The agency therefore adopts a revised

version of the LTL’s suggested wording.

With respect to the NTTC’s

recommendation, the FHWA continues

to work very closely with the RSPA on

technical, jurisdictional, and

programmatic issues related to all

hazardous materials rulemaking actions.

The concerns of the AHAS about

weights and dimensions of CMVs

operating in interstate commerce are

beyond the scope of this rulemaking,

but we will forward them to the offices

responsible for implementing the CMV

size and weight regulations.

Principal Place of Business

The FHWA proposed to amend this

definition to mean a single location

where records required by parts 382,

387, 390, 391, 395, 396, and 397 of the

FMCSRs will be made available for

inspection within 48 hours after a

request has been made by a special
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33259

agent or authorized representative of the

FHWA. Because the definition is revised

to accompany a new § 390.29,

comments are summarized under the

heading for that section.

Regularly Employed Driver

Section 390.5 defines a ‘‘regularly

employed driver’’ as a driver employed

or used solely by a single motor carrier

in any period of 7 consecutive days. The

FHWA proposed to replace this term

with ‘‘single employer driver’’ to make

it more consistent with the intended

meaning.

The FHWA received no comments on

this item and it will be revised as

proposed in the NPRM.

Section 390.29, Location of Records or

Documents

The FHWA proposed to allow motor

carriers with multiple terminals or

offices to maintain all records required

by Subchapter B at regional offices or

driver work-reporting locations,

provided records can be produced at the

principal place of business or other

specified location within 48 hours after

a request has been made by a special

agent or authorized representative of the

FHWA.

In regulatory guidance issued on

November 17, 1993 [58 FR 60734], the

FHWA allowed inspection, repair, and

maintenance records required under

part 396 to be maintained at a location

of the motor carrier’s choice, but

required the motor carrier to make them

available within two business days

upon the FHWA’s request. The revised

definition of the principal place of

business, and the new § 390.29, extend

these recordkeeping allowances and

provisions to all records required under

parts 382, 387, 390, 391, 395, 396, and

397. The change proposed will provide

motor carriers with increased flexibility

in complying with recordkeeping

requirements of the FMCSRs.

Houston Lighting and Power

Company (Houston L&P), Distribution

and LTL Carriers Association, ABA, and

the National Automobile Dealers

Association (NADA) supported the

proposed revision.

National Tank Truck Carriers, Inc., a

trade association of motor carriers

specializing in cargo tank

transportation, requested that the

FHWA codify regulations concerning

the retention of ‘‘electronic’’ records.

FHWA Response

The definition of ‘‘Principal place of

business’’ in § 390.5 is revised as

proposed in the NPRM with one minor

addition. The NPRM language at 62 FR

3866 inadvertently omitted the

reference to part 397 in the proposed

rule, although it was mentioned in the

preamble. It is included in today’s rule.

The new § 390.29 is added as

proposed in the NPRM, but with the

phrase ‘‘principal place of business’’

added to clarify that a motor carrier may

maintain records or documents at a

headquarters location.

The FHWA will address the specific

issue of electronic recordkeeping and

information transmission in separate

future rulemakings on the subject of

supporting documents and other types

of records.

Section 391.11, Qualifications of Drivers

The heading for § 391.11 is changed

from ‘‘Qualifications of drivers’’ to

‘‘General qualifications of drivers.’’

Although this was not presented for

comment in the NPRM, the FHWA

believes there is good cause for this

minor revision to the title of this

section. The title more appropriately

reflects the coverage of the section—

basic qualifications, of a general nature,

for CMV drivers.

Sections 391.11(b)(4) and (b)(5),

Determining Proper Securement of

Cargo

The FHWA proposed to delete these

provisions from the driver qualifications

section of the FMCSRs. The FHWA

reasoned they were redundant because

§§ 383.111(d) and 392.9(a) address the

topic of a driver’s knowledge and

experience relating to proper

securement of cargo.

Although no commenters addressed

the proposal to delete these provisions,

the FHWA has determined there is good

cause to retain them because they

pertain to the general qualifications of

CMV drivers. An essential element of

safe operations is a driver’s ability to

determine whether cargo is properly

secured and to secure cargo himself/

herself, and for motor carriers to assure

themselves that their drivers have the

necessary knowledge and skills to carry

out these tasks. The paragraphs clearly

complement the provisions of §§ 392.9

and 383.111(d).

The ability of a driver to determine

the proper location, distribution, and

securement is clearly a skill that is

learned through instruction and

experience. A driver might arrive at a

new job without specific experience in

handling a particular type of cargo, but

be well qualified in other respects. The

FHWA believes that skills and practice

in safe cargo handling are more

appropriately categorized as

responsibilities, rather than

‘‘qualifications.’’ For that reason, these

requirements will be placed under a

new heading, Responsibilities of

drivers, § 391.13.

Section 391.11(b)(7), Jurisdiction Issuing

a Commercial Motor Vehicle Operator’s

License

The State of Idaho Transportation

Department (Idaho) requested the

FHWA to consider specifying that the

currently-valid operator’s license be

issued by the driver’s State or

jurisdiction of domicile, rather than

‘‘from one State or jurisdiction.’’ Idaho

reasoned this would be consistent with

the definition of ‘‘State of domicile’’

used for the CDL in § 383.5 and the

driver application procedures for

transfer of a CDL in § 383.71(b).

FHWA Response

The FHWA acknowledges Idaho’s

comment concerning the desirability of

consistent requirements for CMV drivers

required to hold a CDL and CMV drivers

required to hold an operator’s license.

The FHWA raised the issue of a driver’s

domicile in its 1990 NPRM concerning

learner’s permits for drivers seeking to

obtain a CDL (55 FR 34478, August 22,

1990). The FHWA raised the issue of the

domicile requirement in existing CDL

regulations and their impact on drivers

wishing to acquire commercial driver

training in preparation for obtaining a

CDL. The FHWA received a number of

comments, filed under FHWA Docket

Number MC–90–10 (now Department of

Transportation Docket FHWA–97–

2181). The issue of how best to deal

with the definition of jurisdiction of

licensure is still ongoing. The FHWA

will address this issue in future

rulemaking actions.

Because §§ 391.11(b)(4) and (b)(5) are

redesignated as §§ 391.13(a) and (b), this

paragraph is redesignated as (b)(5) and

reads: ‘‘Has a currently valid

commercial motor vehicle operator’s

license issued only by one State or

jurisdiction.’’

Section 391.11(b)(10), Road Test

The FHWA proposed to delete all

requirements related to the road test

contained in subpart D, §§ 391.31 and

391.33. Therefore, this section, crossreferencing the road test provisions, was

proposed to be deleted as well. The

FHWA reasoned the road test

requirement was redundant for driver

applicants required to possess a CDL or

who successfully completed a road test

as part of the process of obtaining

another type of license or as required by

an employer. Additional discussion may

be found under the heading for Section

391.31 later in this document.

The FHWA has determined that it is

in the best interests of safety to retain
33260 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

§ 391.31 and to revise § 391.33. The

background of the proposed change, the

summary of docket comments, and the

FHWA’s response are detailed under the

headings for §§ 391.31 and 391.33. This

section is retained and redesignated as

§ 391.11(b)(8).

Section 391.11(b)(11), Application for

Employment

The FHWA proposed to remove the

section requiring a commercial motor

vehicle driver to furnish the employing

motor carrier with an application for

employment in accordance with

§ 391.21. The agency reasoned that the

completion and furnishing of an

employment application are not driver

qualification standards as such.

However, they are necessary and

important actions to evaluate the

competence of applicants for CMV

driver positions, and they are addressed

in § 391.21.

The ATA opposed the removal of this

provision. It stated, ‘‘Completion of an

application for employment is

fundamental to the process of selecting

safe CMV drivers since the beginning of

structured safety programming and was

published as a trucking industry safety

standard in 1939, 12 years before it was

incorporated into the FMCSRs.’’ The

ATA believed the deletion of the

paragraph would prevent motor carriers

from gathering information to determine

applicants’ qualifications in accordance

with § 391.21.

FHWA response

A driver’s application for employment

is not a ‘‘qualification’’ per se. The

revised heading of § 391.11 as ‘‘General

qualifications’’ clarifies the intent to

include performance-oriented

qualifications. An application for

employment is simply a presentation of

a document. The FHWA is not revising

or removing § 391.21, Application for

employment. As stated in the preamble

to the NPRM, the action of removing

§ 391.11(b)(11) is not intended to affect

the responsibility of CMV drivers to

complete and furnish the motor carrier

considering hiring them with

employment applications containing

certain information required by

§ 391.21.

Accordingly, § 391.11(b)(11) is

removed as proposed in the NPRM.

Section 391.13, Responsibilities of

Drivers

The FHWA proposed to delete

§§ 391.11(b)(4) and (b)(5) concerning a

CMV driver’s knowledge and experience

with methods and procedures for

location, distribution, and securement

of cargo. The FHWA has determined it

is in the best interests of safety to retain

those sections, as discussed above. A

new § 391.13 will be added to the

FMCSRs, and the provisions will be

redesignated to appear under that

heading.

Section 391.15(b), Disqualification for

Loss of Driving Privileges

The FHWA proposed to redesignate

§ 392.42 as § 391.15(b)(2) and to title the

paragraph ‘‘Loss of driving privileges.’’

The provision requires a driver who

receives a notice that his/her license,

permit, or privilege to operate a CMV

has been revoked, suspended, or

withdrawn to notify the employing

motor carrier before the end of the

business day following the day the

driver received the notice. The FHWA

believed the notification requirement

would be more appropriately included

in § 391.15 because it specifically

addresses the disqualification of drivers,

rather than general requirements for safe

driving.

The FHWA also requested State driver

licensing agencies to comment on

whether they send written notification

to the employing motor carrier of a

driver who has had his/her license,

permit, or privilege to operate a CMV

revoked, suspended, or withdrawn. The

FHWA sought information to determine

if § 391.15(b) should be revised to

exempt a driver from the requirement to

notify his/her employing motor carrier if

a State licensing agency sends written

notification to the motor carrier in the

event the driver’s license was revoked,

suspended, or withdrawn. The FHWA

received many comments on this

speculative proposal. Because they were

requested under the heading of § 392.42

in the NPRM, they are summarized

under that heading in this preamble.

The State of Idaho recommended an

additional revision to this section. Idaho

recommended adding a CMV driver’s

refusal to undergo controlled substance

testing as a disqualifying offense, noting

that ‘‘Based on current regulations, a

CDL driver cannot be disqualified for

refusing to undergo a controlled

substance test.’’

FHWA Response

The agency is revising § 391.15(b) as

proposed in the NPRM. The section

contains general provisions to require a

driver notified that a temporary or

permanent limitation has been placed

on his/her CMV driving privilege to

inform the employing motor carrier of

this event.

Because of continuing discussions

regarding how to treat loss-of-privilege

from a jurisdiction other than the one

that issued a license to a driver, the

FHWA has determined it is appropriate

to retain the current title

‘‘Disqualification for loss of driving

privileges.’’ Any proposals concerning

loss-of-privilege actions imposed by the

non-licensing jurisdiction will be

addressed in a future rulemaking action.

The FHWA has determined it is not

appropriate at this time to change the

FMCSRs to require State licensing

agencies to notify motor carrier

employers of licensing actions taken

against drivers. Placing the primary

burden on the State licensing agencies

to notify employers of drivers’

disqualifications would create a

significant unfunded mandate. The

requirement would also be a difficult, if

not impossible, undertaking for most

States due to the high turnover rate of

commercial motor vehicle drivers.

As for Idaho’s comments, the intent of

the current § 392.42 is to require the

driver to inform the motor carrier of

notifications received from State or local

licensing or law enforcement agencies.

In the case of a controlled substance test

administered by a police officer, a

driver’s refusal to test would be covered

by the appropriate State or local laws,

and the driver would be required to

inform the motor carrier of any adverse

license actions related to the event.

On the other hand, Idaho’s belief that

‘‘a CDL driver cannot be disqualified for

refusing a controlled substance test’’ is

not entirely accurate. The disqualifying

offenses under § 391.15(c)(2), which

have not been proposed for revision

here, include driving a CMV under the

influence of a Schedule I drug or other

substance identified in 21 CFR 1308

[Schedule of Controlled Substances]. If

the driver refused to take a controlledsubstance test under the provisions of

49 CFR part 382, the refusal generates

the same consequences as a positive

test. The statute (49 U.S.C. 31306)

requires a motor carrier to test its

drivers under certain circumstances

under regulations promulgated by the

FHWA. One of these circumstances is a

driver’s refusal to comply with the

statute. If the driver does not comply, he

or she must not operate a CMV, and the

motor carrier must not permit or require

the driver to do so until the provisions

of §§ 382.503 and 382.309 have been

met through Substance Abuse

Professional (SAP) evaluation and the

return-to-duty testing process. This

means the driver must take an actual

test to be allowed to resume driving

duties in interstate commerce. In

addition, the driver may be subject to

his or her employer’s policy actions.

In sum, controlled-substance and

alcohol tests administered by an

employer do not fall under State laws.
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33261

The employer is responsible for taking

the appropriate actions in accordance

with the FMCSRs and with company

policy. The FHWA’s regulations

consider a driver’s refusal to submit to

testing a prohibited practice. If a driver

refuses to undergo a test, the motor

carrier must prohibit the driver from

driving a CMV and must provide the

driver with names, addresses, and

telephone numbers of substance abuse

professionals.

The FHWA also believes it is

inappropriate to equate a driver’s refusal

to test or a positive test result under part

382 as equivalent to a criminal

conviction for driving under the

influence of a controlled substance.

Criminal convictions of this nature are

generally based upon a law enforcement

officer’s determination that probable

cause existed to require a test and an

arrest under his/her jurisdiction’s

policies. The criminal process also

generally allows a driver more due

process rights to contest the arrest and

positive test result because the driver’s

license privilege is in jeopardy.

The FHWA is reviewing regulations

and guidance concerning controlledsubstance and alcohol tests

administered by law-enforcement

officials. The agency will address these

issues in a separate rulemaking.

Section 391.25, Annual Review of

Driving Record

The FHWA proposed to revise this

section to replace the annual review of

a driver’s driving record with a specific

requirement to make an inquiry to the

appropriate agency of every State in

which the driver held a CMV operator’s

license or permit during the time

period.

DAC Services (DAC), a consumer

reporting agency and a major provider

of automated driver screening services,

favored the proposed revision. However,

DAC was concerned that the proposed

language could be interpreted to

prohibit third-party firms from

obtaining records on behalf of motor

carriers. DAC noted that the FHWA field

staff occasionally question whether the

information obtained through DAC can

be used to satisfy a motor carrier’s

compliance with § 391.23, Investigation

and inquiries. DAC recommended

changing the proposed revision

explicitly to recognize the role of thirdparty information services:

§ 391.25(a) Except as provided in subpart

G of this part, each motor carrier shall, at

least once every 12 months, make, or cause

to be made by or through its agent, an inquiry

into the driving record of each driver it

employs, covering at least the preceding 12

months, to the appropriate agency of every

State in which the driver held a commercial

motor vehicle operator’s license or permit

during the time period.

DAC also requested the FHWA add

‘‘or its agent on the motor carrier’s

behalf,’’ before the words ‘‘shall make

the following investigations and

inquiries * * *’’ in § 391.23.

The Delaware Department of Public

Safety favored the proposed change

while noting that expanded direct

communications between motor carriers

and State agencies will likely increase

its workload. Taking another point of

view, Duquesne Light Company’s

Nuclear Power Division believed the

current requirements are sufficient, and

implementing the proposed rule change

would place an additional

administrative burden on companies.

FHWA Response

The FHWA is amending § 391.25 as

proposed in the NPRM with a minor

editorial change. The language will be

edited to clarify the requirement for the

motor carrier to maintain a copy of the

responses from each State agency to the

inquiry concerning drivers’ records. The

motor carrier must maintain these

responses regardless of their content.

In response to DAC’s comment, the

definition of ‘‘motor carrier’’ in § 390.5

specifically includes the motor carriers

agents, officers, and representatives.

Since third-party firms providing

reporting and other services to a motor

carrier act as the motor carrier’s agents,

they are already included in the

definition of those entities who are

authorized to obtain records on behalf of

motor carriers.

In response to the Duquesne Light

Company’s concern, the requirement to

make inquiries with each jurisdiction

where the driver held a CMV operator’s

license or permit during the past year is

intended to consider the documented

recordkeeping practices of licensing

jurisdictions, some of which remove

data on drivers’ convictions for various

reasons.

However, as the Delaware Department

of Public Safety pointed out, there are

well-founded concerns about the

workload for both the motor carriers and

the DMVs. The time and cost burdens

associated with the annual review of

driving records are discussed under the

Paperwork Reduction Act section of the

preamble to today’s final rule.

Section 391.27, Record of Violations

The FHWA proposed to delete the

provision that a motor carrier require its

drivers, at least every 12 months, to

prepare and furnish the motor carrier

with a list of all violations of motor

vehicle traffic laws and ordinances

(except those violations involving only

parking), of which the driver has been

convicted or has forfeited bond or

collateral during that period. The

FHWA reasoned that making these

inquiries to State agencies would be a

more effective way to gather this

information because it would not rely

on the driver’s memory or veracity.

Air Products and Chemicals (Air

Products) opposes the proposal to

eliminate the requirement for motor

carriers to require its drivers to furnish

a list of traffic violations resulting in

convictions. Air Products’ experience

has indicated that the information its

outside service obtains from State

sources is not always complete or

timely—it lags behind the information

drivers provide. Air Products maintains

that States need to improve their

collection and transmission of these

data to make them sufficiently reliable

to meet the company’s needs. For the

present, Air Products continues to check

both State records and drivers’ lists.

The ABA supported the proposal as a

method of streamlining the process of

inquiring into drivers’ records.

The AHAS and the AAMVA both

supported the proposal as a more

objective method to gather information,

as well as a way to corroborate

information on violations reported by

drivers. The AAMVA believed waiving

the requirement for drivers to notify

motor carriers is acceptable in the cases

where the State has a mandatory

notification program, but not where the

State’s program is discretionary.

The ATA forwarded concerns

expressed by a motor carrier employing

non-CDL CMV drivers. The motor

carrier was concerned that, if § 391.27

were deleted, a motor carrier could not

check information from a State motor

vehicle record (MVR) against any

information reported by its non-CDL

drivers.

Vermont DMV Inspector R. Moore

recommended making Commercial

Drivers License Information System

(CDLIS) inquiries in each State where a

driver has driven during the preceding

12 months. This would provide a

violation record on a national basis for

each driver.

The ATA recommended allowing the

motor carrier to require a driver to

secure and submit an MVR annually.

The ATA also recommend the FHWA

accept evidence that a motor carrier has

requested records from a State licensing

agency as proof of compliance with the

provision, even if the motor carrier has

not received the State agency’s

response. The ATA maintains that

privacy concerns have resulted in States

developing elaborate procedures for
33262 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

obtaining MVRs, and that delays are

often encountered.

FHWA Response

The FHWA has determined it is in the

best interest of safety to retain this

section. The proposal to delete the

provision was based on two

assumptions which commenters have

questioned. The first assumption was

that State driver-licensing systems

would be able to provide a

comprehensive record of accidents and

traffic violations involving interstate

[non-CDL-holding] CMV drivers. The

second assumption was that the State

records would be far superior and more

objective than the current practice of

relying on a driver’s memory. It appears

that several serious limitations would

prevent successful adoption of such a

rule at this time.

Several commenters expressed

reservations about the completeness and

timeliness of States’ operator license

status information. They believe

significant improvements must be made

in the States’ collection and

transmission of this data before motor

carriers should be asked to rely

completely on it.

Relying completely on State

information sources would also

eliminate a cross-check between driverprovided information and information

obtained from State MVRs. This would

be especially problematic for non-CDLlicensed CMV drivers because there is

no centralized information source

similar to CDLIS, except for the National

Driver Register Problem Driver Pointer

System (NDR–PDPS) sponsored by the

National Highway Traffic Safety

Administration. This system focuses

primarily upon adverse actions against

a licensee, such as suspensions and

revocations. One commenter also

highlighted the administrative difficulty

of gathering State MVR information on

non-CDL drivers when the home States

of the driver and the motor carrier are

different. While this certainly can

present a challenge for a motor carrier

attempting to obtain the information on

its own, the information is commonly

available via third-party providers for a

fee. However, there is no such service

available to obtain NDR–PDPS

information.

As the AAMVA noted, waiving the

requirement for drivers to notify motor

carriers might be acceptable in the cases

where the State has a mandatory

notification program, but not where the

State’s program is discretionary. The

AAMVA noted that, as of mid-1997, no

States had a mandatory program, and

only two States had widespread

voluntary programs, one of which was

limited to intrastate drivers and motor

carriers.

Requesting information from drivers

serves another safety and business

purpose. It is common practice for

motor carriers to require drivers and

driver-applicants to certify the

correctness of information they provide.

Falsification of information is often

grounds for dismissal. Until the

completeness and timeliness of Statebased driver record information is

substantially improved, it is important

for motor carriers to obtain this

information from both the driver and

the State-based source to enable crossverification of information.

The proposal to make an inquiry to

each State where a driver has driven

during the preceding 12 months would

place an undue burden on drivers’

employers and the State recordkeeping

systems supporting the CDLIS. The

FHWA plans to address improvements

in the effectiveness of the CDLIS

recordkeeping functions in a future

rulemaking action.

The primary concern for both motor

carriers and drivers is that a loss of

driving privileges in a jurisdiction other

than the one licensing a driver, is not

always brought to the attention of the

licensing jurisdiction. A common basis

for a loss of driving privileges is the

driver’s failure to appear in court to

respond to a traffic citation. Since

‘‘failure to appear’’ does not have a

specific traffic violation associated with

it, the licensing jurisdiction may choose

not to post it on an MVR. This is a

difficult and complex issue, and the

FHWA expects to address it in a future

NPRM.

The FHWA believes the ATA’s first

suggested revision could place the cost

and time burden of obtaining

information solely upon the driver. This

is not the FHWA’s intent. Furthermore,

the regulation in its current form does

not prohibit a motor carrier from

requiring a driver to provide this

information as a condition of

employment: some motor carriers do, in

fact, require their drivers to obtain their

own MVRs.

The FHWA believes it is premature to

accept the ATA’s second

recommendation, that evidence of an

information request made to a State

driver-licencing agency should

constitute compliance with the section.

This could encourage motor carriers to

delay making these requests until they

were compelled to, rather than

integrating them into their normal

safety-oversight practices. The agency is

aware of recent significant changes in

the reporting process made necessary by

the Driver’s Privacy Protection Act of

1994 (18 U.S.C. 2721–2725) and the

recent amendments to the Fair Credit

Reporting Act (15 U.S.C. 1681–1681u).

Both of these laws are generating

numerous adjustments within licensing

agencies and the business community.

The FHWA will monitor this issue as it

affects driver records and we encourage

users of this information to inform the

agency if there are continuing problems.

Section 391.31, Road Test, and Related

Sections 391.11(b)(10), 391.51(c)(4),

391.51(d)(2), 391.61, 391.67(c),

391.68(c), 391.69, and 391.73

The FHWA proposed to remove all

requirements related to the road test and

equivalent of the road test, with the

exception of the applicability to drivers

who apply for a waiver of physical

disqualification. The FHWA reasoned

the test requirements were redundant

for those driver-applicants required to

hold a CDL or who had successfully

completed a road test as part of the

process of obtaining another type of

license or as required by an employer.

The FHWA also highlighted beneficial

outcomes of providing motor carriers

more flexibility and reducing their

recordkeeping burden.

The Houston Lighting and Power

Company favored removing the

requirement, contending that motor

carriers are in the best position to

determine whether a road test is needed

for a non-CDL driver. The ABA also

supported the proposal, noting ‘‘it is no

longer meaningful for any driver that

has a Commercial Driver’s License.’’

The OOIDA opposed the proposal,

contending that the key assumption is

flawed: a CMV driver’s possession of a

CDL does not necessarily mean the

driver is qualified to operate a CMV.

The OOIDA’s chief concern is that Stateadministered driving and skills tests are

designed to assess a limited scope of

performance. The OOIDA asserted that

it is not uncommon for inexperienced

drivers with little or no commercial

driver training to pass skills tests

administered by State personnel or

State-authorized third-party testers, and

that inadequate State budgets may have

an adverse impact on both the

thoroughness of the skills testing

procedures and the qualifications of

testing personnel. It quoted an ‘‘On

Guard’’ bulletin issued by the FHWA in

January 1997:

A CDL does not indicate that the holder is

a trained or experienced truck or bus driver

. . . Title 49 CFR 391.11(b)(3), (Qualification

of Drivers) requires that a driver be able, by

reason of experience, training, or both, to

safely operate the commercial motor vehicle

he or she drives. This requirement is not met
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33263

by simply ascertaining that a prospective

driver holds a CDL.

Air Products also opposed the

proposal. The firm has found that many

drivers holding CDLs do not possess the

skills necessary to operate the

company’s vehicles safely. Air Products

and the OOIDA shared the concern that

some motor carriers, eager to reduce

costs, would interpret the elimination of

the FMCSR requirement for a road test

as relieving them of all responsibility to

test their drivers prior to hiring them.

FHWA Response

The FHWA has determined that it is

in the best interest of safety to retain

this section. It serves a useful purpose

for both CDL and non-CDL drivers.

Commenters noted that some CDL

holders might not, or do not, possess the

skills necessary to safely operate the

vehicles the company plans to assign

them to drive. This is a particular

concern with drivers who hold

endorsements for cargo tanks and

operation of double and triple trailer

combination vehicles, both of which are

granted on the basis of written tests

rather than road tests.

Section 391.33, Equivalent of Road Test

The FHWA proposed to delete this

entire section as a requirement related

to the road test proposed for deletion

and discussed above. This section

covers documents a driver may present,

and a motor carrier may present, in

place of, and as equivalent to, a road test

required by § 391.31.

As part of its comment to the

proposed deletion of §§ 391.31 and

391.33 (see above), the OOIDA

requested removal of § 391.33(a)(1).

That provision allows a driver to

present and a motor carrier to accept a

valid operator’s license as equivalent to

the road test required under § 391.31.

FHWA Response

As discussed in the previous section,

the FHWA has determined that it is in

the best interest of safety to retain the

requirement for the road test, § 391.31.

The agency has determined that a CDL,

but not the double/triple trailer or cargo

tank vehicle endorsements, may be

considered as the equivalent of a road

test. However, a non-CDL operator’s

license will no longer automatically be

considered the equivalent of a road test.

If a driver presents an operator’s license

(i.e., a State classified operator’s license

that is not a CDL), the motor carrier

must make this determination in

accordance with the existing provisions

of § 391.33(c).

The provision in § 391.33(a)(1)

currently allows a motor carrier to

accept a valid operator’s license

(emphasis added) in place of and as

equivalent to the road test required by

§ 391.31. The operator’s license is

different in many ways from the CDL.

States’ requirements for road tests

required to obtain an operator’s license

vary considerably in their coverage and

depth. On the other hand, the driving

test required for CDL applicants

contains a required series of activities

and maneuvers for the driver to

demonstrate basic vehicle control, safe

driving, use of air brakes, and pre-trip

vehicle inspection.

However, the CDL endorsements

required to operate double/triple trailer

combination CMVs and cargo tank

CMVs are awarded based upon

successfully passing a knowledge test.

No States offer skills tests as a

requirement for obtaining these

endorsements. A motor carrier must still

assess a driver’s skill in operating these

vehicles, using, at minimum, the

maneuvers and operations required

under § 391.31(c).

The FHWA will replace the words

‘‘valid operator’s license’’ in

§ 391.33(a)(1) with the phrase ‘‘valid

Commercial Driver’s License, as defined

in § 383.5 of this subchapter, but not

including double/triple trailer or tank

vehicle endorsements’’.

Section 391.49(d)(5), Copy of Certificate

of Road Test for Drivers Requesting

Waiver of Certain Physical Defects

The FHWA received no comments on

the proposal to revise this section. The

section concerns a copy of a certificate

issued pursuant to a driver’s road test

administered as part of the process of

requesting a physical qualifications

waiver for drivers with specific listed

limb impairments, who are otherwise

qualified to drive a CMV.

FHWA Response

The FHWA has decided to retain this

section as it appears in the current

FMCSRs, including retaining the

existing cross-reference to § 391.31. The

proposed revision would have deleted,

among other things, the requirement for

the driver to successfully demonstrate

performance of a pretrip inspection.

Section 391.51, Driver Qualification

Files

The FHWA proposed to remove

§ 391.51(b)(5) covering ‘‘any other

matter which relates to the driver’s

qualification to drive a commercial

motor vehicle safely.’’ The FHWA noted

that the rules in part 391 are minimum

requirements, that motor carriers are

allowed to maintain any document in a

driver qualification file related to the

driver’s qualifications, and concluded

that this section was unclear and

unnecessary. The FHWA also proposed

to remove paragraph (d), concerning

files for intermittent, casual, or

occasional drivers, and paragraph (e),

concerning drivers employed by another

motor carrier.

Inspector Moore of the Vermont DMV

recommended retention of paragraph

(b)(5) because he believed that it

encompassed a variety of

documentation making up an integral

part of a driver qualification file, and

that the motor carrier might not

otherwise retain such documentation.

Inspector Moore named some examples:

The motor carrier’s periodic inquiries to

State DMVs concerning a driver’s record

[over and above those required by

regulation]; copies of accident reports

not otherwise required to be retained;

correspondence concerning an

individual’s driving; correspondence

concerning regulatory compliance

received from industry, enforcement

agencies, or the public; copies of safe

driving awards; and copies of records of

disciplinary action against the driver by

the motor carrier.

The FHWA received no other

comments concerning § 391.51.

FHWA Response

The FHWA believes most motor

carriers retain all of this information

and more as a normal business practice.

Without a requirement to retain specific

documents, there is a possibility some

motor carriers might be more selective

in their choice of records to be

maintained and retained. The FHWA

proposed to remove paragraph (b)(5)

because it did not provide specific

examples of what information the motor

carrier would be required to retain. This

might be remedied at some future time

through regulatory interpretation.

Accordingly, the section is revised as

proposed in the NPRM, except that the

provisions in the current regulations

concerning the certificate of the driver’s

road test and the list or certificate

relating to violations of traffic laws and

ordinances are retained.

The FHWA is revising the other

elements of § 391.51 as proposed in the

NPRM.

Section 391.61, Drivers Who Were

Regularly Employed Before January 1,

1971

The FHWA proposed to revise this

section which covers limited

exemptions from the part 391 driver

qualification requirements for CMV

drivers who were regularly employed

before January 1, 1971. The agency

proposed to delete the reference to the
33264 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

road test, to change the term ‘‘regularly

employed driver’’ to ‘‘single-employer

driver,’’ and to delete the redundant

final sentence of the section. No

commenters addressed this section.

Except for retaining the reference to the

road test, the FHWA is revising the

section as proposed in the NPRM.

Section 391.63, Intermittent, Casual, or

Occasional Drivers

The FHWA proposed to revise this

section to replace the term

‘‘intermittent, casual, or occasional

drivers’’ with ‘‘multi-employer drivers’’

(see comments and discussion under the

heading, § 390.5 Definitions, earlier in

this document), and to revise the list of

actions a motor carrier is not required to

perform with respect to these drivers.

Because the FHWA has determined it

is not in the interest of safety to remove

the requirement that a driver provide a

record of violations or a certificate in

accordance with § 391.27, the action

will remain in the list of exemptions

under § 391.63.

Section 391.65, Drivers Furnished by

Other Motor Carriers

The FHWA proposed two revisions to

this section which concerns the driver

qualification file requirements for

drivers furnished by other motor

carriers. The first would require a motor

carrier that obtains a driver’s

qualification certificate from his/her

previous motor carrier employer to

contact that motor carrier to verify the

validity of the certificate. The second

would replace the current requirement

for a motor carrier to recall a

qualification certificate if it learns the

driver is no longer qualified under the

regulations of part 391. The revised

regulation would require the motor

carrier to be responsible for the accuracy

of the certificate, and make the

certificate invalid if the driver left the

employment of the issuing motor carrier

or the driver was no longer qualified

under part 391.

No comments were received on these

proposed revisions. The FHWA

incorporates them into the final rule.

Section 391.67, Farm Vehicle Drivers of

Articulated Commercial Motor Vehicles

The FHWA proposed to revise this

section, which covers certain

exemptions from the part 391 driver

qualification requirements provided to

farm vehicle drivers of articulated

CMVs. The agency proposed replacing

the references to § 391.11(b)(8), (b)(10),

and (b)(11) with a reference to § 391.21

only. The FHWA also proposed to

delete § 391.67(c) to conform to the

proposed deletion of part 391, subpart

D.

Because the FHWA has decided to

retain § 391.11(b)(8) and subpart D, the

reference will refer to redesignated

§§ 391.11(b)(6) and 391.11(b)(8), and

retain the references to subparts C, D,

and F.

Section 391.68, Private Motor Carriers of

Passengers (Nonbusiness)

The FHWA proposed to revise

paragraph (a) of this section, concerning

certain exemptions from the part 391

driver qualification requirements

provided to CMV drivers of nonbusiness

private motor carriers of passengers. The

agency proposed replacing the

references to § 391.11(b)(8), (b)(10), and

(b)(11) with a reference to § 391.21 only.

Because the FHWA has determined that

§ 391.11(b)(8) will be retained and

§ 391.11(b)(10) and (b)(11) will be

redesignated, the section crossreferences the redesignated

§§ 391.11(b)(6) and (b)(8). Private motor

carriers of passengers (nonbusiness)

continue to be exempt from the

requirement relating to a driver’s

application for employment.

Since the NPRM was published, a

technical amendment published July 11,

1997 (62 FR 37150) removed all

requirements and references to part 391,

subpart H, from parts 355 through 391

of the FMCSRs. This was necessary

because the implementation of part 382

made part 391, subpart H, obsolete. The

final rule will also reflect this change.

Section 391.69, Drivers Operating in

Hawaii

This section provides a limited

exemption from certain driver

qualification requirements for drivers

who have been regularly employed by

motor carriers operating in the State of

Hawaii for a continuous period

beginning prior to April 1, 1975. The

FHWA believed the exemption provided

was redundant and proposed to remove

it.

The FHWA received no comments on

this item. Accordingly, it will be

removed.

Section 391.71, Intrastate Drivers of

Commercial Motor Vehicles

Transporting Class 3 Combustible

Liquids

The FHWA proposed to delete this

section that deals with certain

exceptions to the part 391 driver

qualification requirements for intrastate

drivers of commercial motor vehicles

transporting Class 3 combustible

liquids. The agency reasoned it had no

authority to support application of parts

390 through 399 of the FMCSRs to a

motor carrier or driver operating a CMV

in intrastate commerce, whether or not

the motor carrier has an interstate

operation. However, the FHWA noted

the requirements of parts 382, 383, and

387 would continue to apply.

The FHWA received two comments

concerning the proposal to delete this

section. Houston L&P favored the

proposal and supported the FHWA’s

assertion that the Hazardous Material

Regulations cover these vehicles and

drivers. The AWHMT also favored the

proposal, although it questioned the

rationale described in the preamble to

the NPRM.

FHWA Response

The FHWA removes and reserves this

section as proposed in the NPRM.

The preamble to the NPRM explained

in detail the FHWA’s reason for

proposing to delete the section (see 62

FR 3855, at 3859). The agency

concluded that 49 CFR 177.804 was

never intended to make the FMCSRs

applicable to intrastate commerce.

Section 177.804 requires motor carriers

subject to part 177 to comply with 49

CFR parts 390–397 ‘‘to the extent those

regulations apply.’’ Its purpose was to

make the civil penalty provisions of the

Hazardous Materials Transportation Act

applicable to hazardous materials

carriers already subject to the FMCSRs.

The assertion of jurisdiction over

intrastate commerce in § 391.71, limited

though it may be, is beyond the FHWA’s

authority. Section 391.71 is therefore

being removed.

However, the Controlled Substances

and Alcohol Use and Testing standards

in 49 CFR part 382, and the CDL

standards in 49 CFR part 383, apply to

drivers and their employers who operate

CMVs transporting hazardous materials

in a quantity requiring placarding, in

intrastate commerce. The financial

responsibility requirements in part 387

still apply to motor carriers operating

motor vehicles transporting certain

types of hazardous materials, hazardous

substances, and hazardous waste in

certain types of containment systems, in

intrastate commerce.

Section 391.73, Private Motor Carriers of

Passengers (Business)

Because § 391.69 was proposed to be

removed and § 391.71 was proposed to

be removed and reserved, the FHWA

proposed to redesignate this § 391.73 as

§ 391.69. This would place the section

concerning provisions for private motor

carriers of passengers (nonbusiness)

directly after those for private motor

carriers of passengers (business) in a

more logical sequence in the FMCSRs.
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33265

The agency did not propose revisions to

the scope or content of the section.

The FHWA received no comments on

this proposal. The section will be

redesignated as proposed in the NPRM.

Section 392.7, Equipment, Inspection,

and Use; Section 392.8, Emergency

Equipment, Inspection, and Use

The FHWA proposed to remove these

sections. They cover the driver’s

responsibility to satisfy himself/herself

that specified CMV parts, accessories,

and emergency equipment are in good

working order, and require the driver to

use them when and as needed. The

agency reasoned that they duplicated

both § 396.13(a), which requires a driver

to be satisfied the CMV is in safe

operating condition before driving it,

and the equipment requirements of part

393.

The FHWA received four comments

concerning the proposal to remove these

sections. Air Products recommended the

specific language of § 392.7 be relocated

to § 396.13(a), rather than being deleted.

Air Products believes it is necessary for

drivers to have instructions specifically

identifying critical safety components.

Inspector Moore of Vermont DMV

expressed much the same concerns.

The ATA favored the proposal to

remove the sections and to rely on the

provisions in § 396.13 as an interim

measure. However, the ATA was

concerned that distributing ‘‘initial

compliance’’ requirements among other

sections of the FMCSRs may tend to

diminish the importance of this issue in

the minds of drivers: ‘‘We believe

drivers tend to focus their attention on

parts 392 and 395 which have an

inherently greater impact on their

actions.’’ The ATA also believed that

incorporating driver vehicle inspection

report requirements in part 396 and

moving the ‘‘pre-trip inspection’’

checklist from part 392 to part 396

could send drivers the unintended

message that these activities, and the

completion and submittal of records

associated with them, were of lesser

importance.

The AAMVA expressed much the

same concern regarding instructions for

drivers on precautions for unattended

vehicles and driving under hazardous

conditions.

FHWA Response

The FHWA is retaining these two

sections. The agency agrees with the

commenters that there is a need for

drivers to have instructions specifically

identifying critical safety components.

Also, the FMCSRs provide a specific,

prescriptive basis for motor carriers to

develop their own policies and

procedures.

Section 392.9, Safe Loading, Drivers of

Trucks and Truck Tractors

The FHWA proposed to remove this

section, covering requirements for a

driver to assure the proper loading and

securement of cargo prior to driving,

inspecting the cargo and its securement

within the first 25 miles, and

reexamining the cargo and its

securement at a change of duty status or

after 3 hours or 150 miles of driving.

The FHWA received two comments

on this section. Houston L&P favored

the proposed removal. It asserted that

each motor carrier has a responsibility

to ensure all loads are properly

distributed and secured. Removing this

section would give motor carriers this

flexibility.

Air Products agreed with the FHWA’s

explanation of the reason for

eliminating the paragraph, but was

concerned how motor carriers would

develop policies and procedures

without guidance currently provided in

the FMCSRs. Air Products maintained

that many motor carriers rely on the

specific prescriptive nature of the

FMCSRs. It recommended that the

FHWA place a requirement in § 393.100

to emphasize the need for motor carriers

to develop adequate cargo securement

inspection procedures for their drivers

to follow.

FHWA Response

The FHWA retains this section in the

FMCSRs. Although the section appears

highly prescriptive, it is supported by

operational practices and by

contemporary research, including the

nearly-completed Load Securement

Study sponsored by the Ontario

Ministry of Transportation and

Communications, Transport Canada,

and the FHWA. The U.S. Department of

Transportation published an advance

notice of proposed rulemaking on

October 17, 1996 (61 FR 54142) and

established a public docket, FHWA–97–

2289 (formerly FHWA Docket MC–96–

41) on this subject. The Canadian

Council of Motor Transport

Administrators (CCMTA), one of the

members of a drafting group developing

a model set of cargo securement

guidelines based upon the results of the

research, has posted information on the

Internet. Its website is http://

www.ab.org/ccmta/ccmta.html.

Section 392.9(c), Safe Loading, Buses

The FHWA proposed redesignating

§ 392.9(c)(1) as § 392.62, deleting

§ 392.9(c)(2), and redesignating

§ 392.9(c)(3) as § 392.9(b). This

redesignation was proposed to

consolidate several requirements related

to transportation of passengers in a

single location in the regulations and to

remove a redundant requirement. No

commenters addressed this proposal.

The FHWA removes and redesignates

the sections as proposed in the NPRM

with one minor editorial change. The

term ‘‘freight’’ in the current

§ 392.9(c)(3) embraces the term ‘‘express

packages,’’ so the phrase ‘‘or express’’ is

deleted in the final rule.

Section 392.9b, Hearing Aid to Be Worn

The FHWA proposed to remove this

section because it duplicates the

information contained in the Medical

Examiner’s Certificate at § 391.45(g),

‘‘[Driver] qualified only when wearing a

hearing aid.’’

The agency received no comments on

this proposal. Accordingly, the section

is removed as proposed.

Section 392.10(b)(1) and (3), Railroad

Grade Crossings, Stopping Required

The provisions of § 392.10 require

CMVs transporting passengers or

hazardous materials requiring

placarding to stop prior to crossing

railroad tracks at grade, except in

certain specified cases described in

paragraphs (b)(1) through (b)(5). The

FHWA proposed to add another

exception, to permit these CMVs to

cross without stopping at locations

equipped with an active warning device

(signal, gate, lights) when the device is

not activated to warn drivers of the

approach of an oncoming train.

The FHWA received 22 comments

responding to this provision of the

proposal. Four commenters favored the

proposed revision.

The National Transportation Safety

Board (NTSB) restated its 1981 Safety

Recommendation H–81–77, the basis for

the proposal. The NTSB

recommendation stated:

[T]he FHWA amend § 392.10, consistent

with the Uniform Vehicle Code, to require

trucks carrying bulk hazardous materials to

stop at crossings with active warning devices

only when the devices are activated to warn

drivers of an approaching train. The Safety

Board is not aware of any accident data nor

has the Safety Board investigated any

accident which suggests that the proposed

revision would have an adverse impact on

commercial vehicle or hazardous materials

safety.

The ATA also favored revising the

regulation. It pointed to considerations

of disruption of the flow of traffic, as

well as the potential of rear-end

collisions and unsafe passing by other

vehicles at the crossings. The ATA

stated it had discussed the issue with
33266 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

safety professionals from 4 major tank

truck carriers [not named] at a meeting

of the ATA’s Safety Management

Council, and that they supported the

proposed regulatory revision. The ATA

also recommended the FHWA urge

States to amend their laws, noting that

only 11 States provide relief from stops

at active railroad crossings.

Mr. Hoy A. Richards, Principal,

Richards & Associates and Senior

Scientist, Texas Transportation

Institute, also supported the proposal.

He asserts stopped CMVs are a safety

hazard unless pull-out lanes are

provided; that State highway safety

statistics (especially those from Texas,

Illinois, and Oregon) ‘‘will show that

there are twice as many no-train motor

vehicle accidents as there are motor

vehicle/train accidents.’’ He also

believes most drivers have no

understanding of why CMVs stop at

non-activated [dark] signals, although

he stated he could not quote statistics.

Mr. Richards did not cite reports nor

provide references to the accident

statistics he cited in his comments.

Mr. Richards also recommended

several countermeasures based upon

changes to traffic signs and signals,

including use of a black-on-white

crossbuck at all active highway-rail

intersections and installation of a green

traffic signal in all active devices. He

also recommended engineering studies

to determine whether standard highway

traffic signal control devices could be

installed at branch line and industrial

grade crossings.

The State of Connecticut’s DOT

(Connecticut) noted that its State

statutes require passenger and

hazardous-materials-laden CMVs to stop

before crossing any railroad tracks at

grade. Connecticut said it has recently

established a committee to study

highway-rail crossing matters,

including, among other things, the

requirement for school buses to stop at

all active crossings. Although it stated

that no consensus had been reached on

this issue, Connecticut said it would

generally support the proposed revision,

provided the FHWA addressed two

issues. It requested the FHWA to

address the definition of an ‘‘active

warning device’’ and limit it to those

grade crossings with standard railroad

flashing lights and gates. It also

recommended specific regulatory

signage at exempt crossings used

exclusively for industrial switching

purposes.

The remainder of the commenters

were strongly opposed to the proposal.

These commenters were: the

Association of Waste Hazardous

Materials Transporters; Air Products

and Chemicals, Inc.; the North Dakota

DOT; the City of Littleton, Colorado,

Fire Department; New York Operation

Lifesaver; the Association of American

Railroads; CSX Transportation; the

American Association of Motor Vehicle

Administrators; the United

Transportation Union; the International

Association of Fire Fighters; Louisiana

Railroads; Northeast Illinois Regional

Commuter Railroad Corporation (Metra);

Missouri Department of Economic

Development; Operation Lifesaver, Inc.;

Brotherhood of Locomotive Engineers;

National School Transportation

Association; and Vermont Railway/

Clarendon and Pittsford.

Commenters raised numerous

concerns relating to the availability of

current data to support the proposed

regulatory revision, differentiation

between active and passive grade

crossings (availability and meaning of

warning signals, habituation of CMV

drivers to stop at one type of crossing

but not another), reliability of the active

warning devices, other drivers’

expectations of tank vehicles and buses

stopping at railroad grade crossings, and

the use of a Federal standard as a

foundation for States’ motor carrier

safety regulations and motor carriers’

company policies. Some commenters

also reflected upon their own and

colleagues’ experiences with nearmisses and in dealing with the

aftermath of rail-motor vehicle

collisions. The following summaries are

representative of these comments.

CSX Transportation noted ‘‘In nearly

every case involving a collision between

any motor vehicle and a train, the

primary contributing factor is failure to

stop on behalf of the motor vehicle.’’

Operation Lifesaver emphasized a need for

contemporary research [T]o determine

whether actions recommended [by the NTSB]

12 to 16 years ago are relevant or even

advisable today from a safety perspective.

Many highway-rail crossing safety issues

have been addressed successfully during the

past 16 years by federal, state, and local

governments, and by private organizations,

including Operation Lifesaver. In fact,

highway-rail collisions nationwide have

dropped from 8,500 in 1981 to 4,000 in 1995,

a decrease of 53 percent. Given this marked

safety improvement, the 1981 and 1985

recommendations may not reflect priority

concerns in 1997.

Operation Lifesaver also criticized a

1985 FHWA study that recommended

rescinding the CMV stopping

requirement, although it also projected

an increase in the number of hazardous

materials-carrying CMVs, school buses,

and passenger buses striking trains.

Louisiana Railroads stated that

available data indicate approximately 50

percent of accidents occur at crossings

where an active warning device is

present, whether or not the device is

activated.

The United Transportation Union

commented:

In 1995, there were 579 deaths at public

highway crossings, and 1,888 injuries were

sustained. During the first 11 months of 1996

(the latest figures available) there have been

3,214 accidents at public crossings involving

motor vehicles, and resulting in 328 deaths

and 1,234 injured. It is important to keep in

mind that these tragedies occurred even

when CMVs are required to stop at all

crossings. To permit such vehicles to

continue through crossings when there is no

signal activation will create an even more

hazardous situation than currently exists.

The Brotherhood of Locomotive

Engineers commented:

Locomotive Engineers are a unique party in

this proceeding because we are usually the

only witness to the real world at a highway

rail crossing * * * Reckless behavior at the

crossing is a sorry sight at best, a stupid and

painful tragedy at worst. When the vehicle is

one carrying hazardous material or

passengers, the careless behavior at the

crossing may literally destroy hundreds,

perhaps thousands, of lives and wield

tremendous economic damage. The

consequences of a train collision with a large

truck carrying hazardous materials or a bus

carrying passengers could be so severe there

seems little rational argument to support

removing the extra measure of safety that is

provided by stopping before crossing.

Several commenters pointed out the

proposed change would negate many

State statutes, and advised that the

language of the proposed rule would not

require a stop at an activated warning

device.

FHWA Response

The FHWA has determined that it is

in the best interest of highway safety to

retain § 392.10 of the FMCSRs in its

current format at this time.

The NTSB’s Safety Recommendations,

H–81–77 and H–89–36, if looked at

together, propose that § 392.10 of the

FMCSRs be amended by rescinding

paragraph (b)(1) (exclusively for

industrial switching) and revising the

balance of the section. The FHWA’s

proposal would have revised the

FMCSRs to require placarded hazardous

materials laden CMVs, as well as

passenger CMVs, to stop at only those

railroad grade crossings equipped with

active warning devices, and only when

the devices are activated to warn drivers

of an approaching train.

Data furnished by the Federal

Railroad Administration that the FHWA

forwarded to the NTSB show a constant

and dramatic decrease in railroad grade

crossing accidents involving
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33267

commercial motor vehicles during the

past 10 years. While there is no data

directly linking the FHWA’s grade

crossing regulations with this

documented decline in grade crossing

accidents, neither is there data to

substantiate the hypothesis that

changing § 392.10 of the FMCSRs to

reflect the Board’s recommendations is

likely to result in a decline in grade

crossing accidents. However, the trend

information available substantiates the

FHWA’s experience that the current

grade crossing requirements are

warranted and, we believe, at least

partially responsible for reducing the

number of such accidents. We continue

to be concerned that the

recommendations, if implemented,

would reduce the effectiveness of the

current requirements and undo some of

the progress that has been made in

railroad grade crossing safety.

The text of § 11–702 of the UVCMTO,

‘‘Certain vehicles must stop at all

railroad grade crossings,’’ has not

changed substantively since the NTSB

issued its Safety Recommendations.

Although paragraph (b) of § 11–702

indicates certain types of railroad grade

crossings where vehicles would not be

required to stop, paragraph (c) states

that the State officials ‘‘shall adopt such

regulations as may be necessary

describing the vehicles which must

comply with the stopping requirements

of this section * * * [and] shall give

consideration to the number of

passengers carried by the vehicle and

the hazardous nature of any substance

carried by the vehicle. Such regulations

shall correlate with and so far as

possible conform to the most recent

regulation of the United States

Department of Transportation.’’ The

footnotes to the 1979, 1987, and 1992

editions of the UVCMTO refer to

§ 392.10 of the FMCSRs.

No commenters favoring the proposed

revision addressed motor carriers’

proactive actions to prevent rear-end

collisions. Many CMVs carrying

hazardous-materials have a sign, ‘‘This

vehicle stops at all RR crossings’’ placed

on the rear of the vehicle so it is clearly

visible to other motorists. The statement

that drivers of other vehicles do not

understand why CMVs stop at railroad

crossings was contradicted by several

commenters in favor of retaining the

current regulation.

Finally, none of the commenters

favoring the proposed change provided

current data in support of their

positions. Mr. Richards’ comments did

not specify whether the ‘‘no-train’’

accidents he cited were all accidents in

those States, or only those at or near

grade crossings.

Sections 392.13, Drawbridges, Slowing

Down of Commercial Motor Vehicles;

Section 392.14, Hazardous Conditions,

Extreme Caution; Section 392.15,

Required and Prohibited Use of Turn

Signals

The FHWA proposed to delete these

sections because they are currently, and

more appropriately, enforced through

State and local traffic laws. In addition,

the FHWA concluded that the

provisions of § 392.14 are fundamental

safe driving practices and are probably

incorporated into most motor carriers’

policy manuals.

Air Products generally supported the

proposal to remove and reserve the

three sections. However, it was

concerned about potential nonuniformity of various State requirements

and recommended that the FHWA issue

guidelines to the States to minimize

conflicts.

The ATA supported removing

§ 392.15 (a) through (c), but not

paragraphs (d) and (e). The ATA

asserted the prohibitions are unique to

the FMCSRs and provided some history.

The ‘‘parking’’ use prohibition in

§ 392.15(d) was a response to the use of

turn signals on one side of the CMV

prior to the advent of four-way flashers.

The ‘‘do pass’’ prohibition in § 392.15(e)

was incorporated into the FMCSRs with

the support of the trucking industry

because of lawsuits against motor

carriers whose drivers had given this

signal to a following driver who was

then struck by a third vehicle. The ATA

recommended that the FHWA review

State laws on these topics before making

a decision on revoking the provisions.

The Pennsylvania DOT was

concerned that removing § 392.15

would limit enforcement because State

personnel who are not sworn police

officers cannot enforce traffic laws.

Inspector Moore of the Vermont DMV

commented that the Vermont State

statutes contain no provisions similar to

§ 392.14, and that Vermont traffic laws

require use of turn signals only for

vehicles traveling on limited-access

highways.

FHWA Response

The FHWA believes State and local

traffic laws and motor carriers’ safe and

prudent operating practices cover these

situations. Therefore, the FHWA is

removing and reserving §§ 392.13 and

392.15 as proposed in the NPRM.

However, the FHWA has determined it

is in the interest of highway safety to

retain § 392.14. This section provides a

specific basis for motor carriers to

develop their own safety policies and

procedures for operating a CMV when

adverse environmental conditions limit

visibility or reduce traction.

The FHWA included § 392.15(d) and

(e) in the recodification of the FMCSRs

on December 26, 1968 (33 FR 19700), a

year after the motor carrier safety

regulations of the former Interstate

Commerce Commission had been

transferred to the new Department of

Transportation. A review of the National

Highway Traffic Safety Administration’s

Federal Motor Vehicle Safety Standard

(FMVSS) suggests that the uses of turn

signals described in § 392.15(d) and (e)

have been made obsolete by the

availability of vehicle hazard warning

signal flashers, commonly known as

‘‘four-ways.’’ Table 1, Required Motor

Vehicle Lighting Equipment Other than

Headlamps (Multipurpose Passenger

Vehicles, Trucks, Trailers, and Buses, of

80 or more inches Overall Width) of

FMVSS 108 (49 CFR 571.108) references

Society of Automotive Engineers (SAE)

Recommended Practice J945, issued in

February 1966.

The use of vehicle hazard warning

signals also is described in the

UVCMTO § 12–215. The UVCMTO was

revised in 1968 to permit vehicles to be

equipped with lamps for the purpose of

warning the operators of other vehicles

of the presence of a vehicular traffic

hazard requiring the exercise of unusual

care in approaching, overtaking, or

passing. The same year, the UVCMTO

also added a requirement that every bus,

truck, truck-tractor, trailer semitrailer,

or pole trailer 80 inches or more in

overall width, or 30 feet for more in

overall length be equipped with lamps

meeting these requirements. Finally,

paragraphs (f) and (g) of UVCMTO § 12–

215 state:

(f) The driver of any vehicle equipped with

vehicular hazard warning lights may activate

such lights whenever necessary to warn the

operators of following vehicles that the

signaling vehicle may itself constitute a

traffic hazard.

(g) The driver of a truck, bus, or truck

tractor pulling a trailer or trailers, equipped

with vehicular hazard warning lights may

activate such lights when that vehicle is

proceeding up a grade, or under other

conditions requiring it to be operated at a

speed less than the prevailing speed of

traffic.

The FHWA believes these UVCMTO

citations adequately address the

concerns of the ATA and other

commenters concerning the proper use

of vehicular hazard warning lights.

In its current form, the section only

considers potential hazards to

passengers in the event a CMV is

operated during adverse environmental

conditions. The FHWA plans to address

this issue as it relates in more general
33268 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

terms to other highway users in a future

rulemaking action.

Section 392.20, Unattended Commercial

Motor Vehicles; Precautions

The FHWA proposed to remove the

section prohibiting a commercial motor

vehicle from being left unattended until

the parking brake has been set and all

reasonable precautions have been taken

to prevent the vehicle from moving. The

agency reasoned that State and local

government authorities are in a better

position to monitor and enforce

regulations of this nature for

commercial motor vehicles transporting

non-hazardous materials (special

regulations for HM-laden commercial

motor vehicles are covered in part 397

of the FMCSRs). The FHWA received no

comments, and the section is removed

and reserved as proposed in the NPRM.

Section 392.22, Emergency Signals;

Stopped Commercial Motor Vehicles

The FHWA proposed to revise

paragraph (b) of this section, concerning

the placement of warning devices in the

event a CMV is stopped on the traveled

portion or the shoulder of a highway for

any cause other than necessary traffic

stops. The agency believes drivers often

do not place warning devices at the

locations or distances specified in the

regulation because the instructions are

not clear and because it is difficult for

them to estimate distances by eye. The

agency proposed to revise the section to

make the language clearer and to

include the number of paces as well as

the required linear distances at which

warning devices are to be placed.

The ATA provided the only comment

on this section. It recommended listing

the distances in paces first, as they were

when this regulation was first

promulgated by the ICC.

FHWA Response

The FHWA agrees with the ATA’s

recommendation to list the locations for

placing warning devices in paces,

followed by the approximate linear

distances in meters and feet. The final

rule describes the locations as ‘‘x paces

(approximately y meters or z feet)’’

where x, y, and z are the appropriate

dimensions in § 392.22(b)(1) (i), (ii), and

(iii).

Section 392.25, Emergency Signals;

Dangerous Cargoes

The FHWA proposed to delete this

section prohibiting the use of flameproducing devices on CMVs carrying

certain hazardous materials cargoes or

fueled by compressed gas. The agency

reasoned it was unnecessary to prohibit

the use of flame-producing devices

because § 393.95(g) of the FMCSRs

prohibits those devices from being

carried on a CMV transporting the same

classes of placarded hazardous materials

described in § 392.25.

Several commenters opposed

removing this section. Mr. O. Bruce

Bugg, a law enforcement officer with

experience in CMV and HM safety,

stated that it is not uncommon for CMV

drivers to borrow warning devices from

other drivers to replace or to

supplement their own equipment. He

said other drivers, highway department

personnel, and police officers could

supply flame-producing devices to CMV

drivers transporting placarded

‘‘flammable’’ cargoes. The Pennsylvania

DOT had a similar comment.

The AHAS and Inspector Moore of the

Vermont DMV also opposed removing

the requirement. They noted this section

contains the only specific prohibition

on the use of these flame-producing

devices. The AHAS recommended

merging the proscription against use of

the devices with the proscription

against carrying the devices at

§ 393.95(g). Mr. Bugg recommended the

provision be combined with sections in

parts 393 or 396.

FHWA Response

The FHWA is retaining this section,

and is also changing the heading to

‘‘Flame producing devices’’ to make the

intent more clear. As several

commenters pointed out, someone else

(perhaps even a law-enforcement

official) could give a flame-producing

device to a CMV driver, with potentially

serious consequences.

The FHWA believes the ‘‘use’’

provisions of part 392, the ‘‘equipment’’

provisions of part 393, and the

‘‘inspection’’ provisions of part 396 of

the FMCSRs need to be considered in

their own contexts. Section 392.25

specifically prohibits use of these

devices. On the other hand, § 393.95(g),

codified in an FMCSR part that

describes requirements for ‘‘equipment’’

rather than its use, specifically prohibits

carrying these devices.

Section 392.42, Notification of License

Revocation

The FHWA proposed to move the

requirement for a driver to notify the

employing motor carrier of a license

revocation, which is currently

addressed in § 392.42, to § 391.15(b)(2).

The agency also proposed to change the

title of paragraph (b) to ‘‘Loss of driving

privileges.’’ The change was proposed

because the section addresses

conditions relating to driver

disqualification, rather than general safe

driving provisions.

The FHWA also requested State driver

licensing agencies to comment on

whether they send written notification

to the employing motor carrier of a

driver who has had his/her license,

permit, or privilege to operate a CMV

revoked, suspended, or withdrawn.

These comments were to be considered

to determine if the FHWA should

further revise § 391.15(b) to exempt a

driver from the requirement to notify

his/her employing motor carrier if a

State licensing agency sends written

notification to the motor carrier in the

event the driver’s license was revoked,

suspended, or withdrawn.

The sole commenter favoring this

speculative revision was Houston L&P.

Houston L&P believed the MVR issued

by a State licensing agency provides

adequate means for obtaining

information on convictions,

disqualifications, license suspensions,

revocations and cancellations as

required under §§ 383.31(a) and 383.33.

However, Houston L&P did not

comment on whether these sections,

applicable to CDL holders, provided

comparable information for non-CDL

CMV drivers.

All other commenters opposed the

intent and direction of such a revision.

The AAMVA, the States of Wisconsin,

Delaware, Idaho, Missouri, Vermont,

and Wisconsin, and one private motor

carrier addressed this issue.

The AAMVA stated it would strongly

oppose a requirement for DMVs to

notify motor carriers of convictions or

adverse licensing actions against motor

carriers’ employees’ driving records. It

noted that only a few Departments of

Motor Vehicles (DMVs) have programs

to notify motor carriers of any violations

added to a driver’s record. The AAMVA

pointed out that California’s statutory

requirement and New York’s voluntary

program require motor carriers to pay

participation fees. Finally, the AAMVA

advised that these programs are costly to

administer. Because employment

turnover rates in the trucking industry

are high, the single task of processing

employer change notices requires

significant resources.

Delaware, Idaho, Missouri

(Department of Revenue), and Vermont

stated they do not have a program in

place to notify motor carriers when

drivers lose their driving privilege. The

Delaware DPS added it could not notify

employers of CMV driver violations

because it does not, nor does it propose

to, maintain records of drivers’

employers. This function would require

a legislative change the Delaware DPS

believes would be difficult or

impossible to pass. The Delaware DPS

stated it could not support a method
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33269

where the State would be held

responsible or liable for this reporting.

Delaware also identified many of the

issues noted by the AAMVA concerning

the significant difficulty in maintaining

current basic information, such as a

driver’s address. Delaware was

profoundly concerned that the transfer

of these responsibilities to State

agencies could take place without the

Federal government adequately

assessing the costs to the States. It cited

‘‘the anticipated transfer of medical

qualification determinations’’ [the

subject of an ongoing FHWA negotiated

rulemaking] as an example of such a

transfer.

The North Dakota Department of

Transportation stated it would not be

able to comply with a requirement that

a State notify a driver’s employer. North

Dakota DOT noted many States do not

keep records of drivers’ employers, and

many drivers do not work for the same

motor carrier for any substantial length

of time.

The Wisconsin Department of

Transportation stated that it does not

send a written notification to a motor

carrier when a driver’s privilege is

withdrawn, and would oppose such a

requirement. The State has a voluntary

‘‘Employer Notification Program’’

enabling them to receive notification of

‘‘hits’’ on an employee’s record. The

program requires the employer to keep

the DMV informed when drivers leave

the company or retire. Employers are

charged a $20 annual base fee, a onetime fee of $2 per employed driver, and

a fee of $3 per driver record abstract

change generated by an accident,

conviction, withdrawal from the

program, or other event. During 1996,

1,012 employers received over 52,000

driver abstracts.

Air Products also strongly opposed

the revision on the ground that each

employee has a responsibility to report

any issue negatively affecting his or her

ability to perform job functions. Further,

if a driver fails to report a license

revocation, and that driver is involved

in an accident while driving for the

employing motor carrier, the motor

carrier is still liable and responsible for

the driver’s actions. Air Products

contends that ‘‘by exempting drivers

from this requirement, a message is

being sent to the drivers that it is

acceptable to remain quiet.’’

The Delaware DPS’ point of view was

similar to that of Air Products—motor

carriers are in the key position to review

and assess the safety of the drivers they

employ. Delaware DPS also commented

that the FMCSRs might be amended to

require at least an annual record check

of the safest (i.e., violation-free) drivers

and more frequent checks of the records

of ‘‘problem’’ drivers.

FHWA Response

Section 392.42 is redesignated as

§ 391.15(b)(2) as proposed in the NPRM.

The issue of loss of driving privileges

on the basis of citations from a driver’s

licensing State or a State or other

jurisdiction other than the licensing

State is a complex one. The FHWA will

consider it in a future rulemaking

action. The title of § 391.15(b) remains

‘‘Disqualification for loss of driving

privileges.’’

No changes are made to require State

licensing agencies to notify motor

carrier employers of licensing actions

taken against drivers. Placing the

primary burden on the State licensing

agencies to notify employers of drivers’

disqualifications would create a

significant unfunded mandate. The

requirement would also be a difficult, if

not impossible, undertaking for most

States due to the high turnover rate of

commercial motor vehicle drivers.

Section 392.51, Reserve Fuel

The FHWA proposed to remove this

section. The section prohibits carrying

fuel for propulsion or operation of

accessories except in a properly

mounted fuel tank. The agency believed

there was no sound reason to prohibit

carrying small amounts of fuel under

those circumstances while (by

implication) allowing the practice if the

fuel were to be used to power

machinery transported on the CMV.

The FHWA received two comments.

The AWHMT asked the FHWA to clarify

the rationale for removing this

regulation. It raised two concerns: (1)

The definition of ‘‘small package;’’ and

(2) how the carriage of small packages

containing fuel would be made

consistent with the Hazardous Materials

Regulations (HMRs). Houston L&P

supported the proposal, citing the

‘‘Materials of Trade’’ exceptions to the

HMRs issued in January 1997.

FHWA Response

Just prior to the publication of the

FHWA’s NPRM, the Research and

Special Programs Administration issued

a final rule, on January 8, 1997 (62 FR

1208). The RSPA final rule, effective

October 1, 1997, with a compliance date

of October 1, 1998 (see 62 FR 49560,

September 22, 1997), applies a uniform

system of safety regulations to all

hazardous materials transported in

commerce throughout the United States

and requires intrastate motor carriers

and shippers to comply with the HMRs,

with certain exceptions. One set of

exceptions applies to ‘‘materials of

trade.’’

The RSPA defines a ‘‘material of

trade’’ as a hazardous material, other

than a hazardous waste, that is carried

on a motor vehicle: (1) For the purpose

of protecting the health and safety of the

motor vehicle operator or passengers; (2)

for the purpose of supporting the

operation or maintenance of a motor

vehicle (including its auxiliary

equipment); or (3) by a private motor

carrier (including vehicles operated by a

rail carrier) in direct support of a

principal business that is other than

transportation by motor vehicle. See 49

CFR 171.8. The exceptions codified at

49 CFR 173.6 cover materials and

amounts, packaging, hazard

communication, and aggregate gross

weight provisions for the ‘‘materials of

trade.’’

Several of these exceptions apply to

fuels. Packaging for gasoline must be

made of metal or plastic and conform to

requirements of 49 CFR parts 171, 172,

173, and 178, or requirements of the

Occupational Safety and Health

Administration contained in 29 CFR

1910.106. For a Packing Group II

(including gasoline), Packing Group III

(including aviation fuel and fuel oil), or

ORM–D, the material is limited to 30 kg

(66 pounds) or 30 L (8 gallons). A

Division 2.1 material (flammable gas) in

a cylinder is limited to a gross weight

of 100 kg (220 pounds). The RSPA final

rule states that the aggregate gross

weight of all materials of trade on a

motor vehicle may not exceed 200 kg

(440 pounds).

The FHWA provides references to the

RSPA regulation in the FMCSRs. For

ready reference, the gross weight limits

of commonly-used fuels (gasoline,

diesel, and flammable gases) and the

packaging requirements for gasoline are

restated in today’s final rule.

Accordingly, the FHWA will revise

§ 392.51 to allow small amounts of fuel

for the operation or maintenance of a

commercial motor vehicle (including its

auxiliary equipment) to be carried as

defined under ‘‘materials of trade,’’ 49

CFR 171.8.

Section 392.52, Buses; Fueling

The FHWA proposed to remove the

section prohibiting buses from being

fueled in a closed building with

passengers aboard. The agency reasoned

that this is a rare occurrence, does not

influence highway safety, and does not

warrant a Federal prohibition. No

comments were received on this

proposal. Accordingly, the section is

removed and reserved as proposed in

the NPRM.
33270 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

Section 392.68, Motive Power Not To Be

Disengaged

The FHWA proposed to remove and

reserve this section, which prohibits

CMVs from being driven with the source

of motive power disengaged from the

driving wheels. The agency reasoned

that this prohibition is more

appropriately monitored and enforced

by State and local officials. This

prohibition is, in fact, contained in the

Uniform Vehicle Code and Model

Traffic Ordinance, § 11–1108, Coasting

Prohibited:

(a) The driver of any motor vehicle when

traveling upon a down grade shall not coast

with the gears or transmission of such

vehicle in neutral.

(b) The driver of a truck or bus when

traveling upon a down grade shall not coast

with the clutch disengaged.

The FHWA received no comments on

the proposal to remove this section. It is

removed and reserved as proposed in

the NPRM.

Sections 395.1(g), Hours of Service of

Drivers; Retention of Driver’s Record of

Duty Status

The FHWA proposed to remove

§ 395.1(g), Retention of driver’s record

of duty status. This section covered the

divided record authority provisions for

records of duty status. As described

earlier in this document, the FHWA

proposed to allow motor carriers with

multiple terminals or offices to maintain

all records required by Subchapter B at

regional offices or driver work-reporting

locations, provided records can be

produced at the principal place of

business or other specified location

within 48 hours after a request has been

made by a special agent or authorized

representative of the FHWA.

No commenters addressed this

section, and the final rule incorporates

the proposed change.

Sections 395.1(h), (i), and (j), and (k);

Sleeper Berths, State of Alaska, State of

Hawaii, Travel time, Agricultural

operations, Ground Water Well Drilling

Operations, Construction Materials and

Equipment, Utility Service Vehicles

Because the FHWA proposed to delete

§ 395.1(g), it proposed to redesignate the

four paragraphs following it. The agency

proposed no substantive changes and

received no comments concerning the

redesignations for these sections.

However, the FHWA inadvertently

neglected to propose to redesignate the

last four paragraphs in the section,

395.1(l) through 395.1(o). The final rule

implements the proposed redesignations

as well as redesignating by technical

amendment §§ 395.1(l) through 395.1(o)

as §§ 395.1(k) through 395.1(n).

Section 395.2, Definitions, ‘‘On-duty

Time’’

The FHWA proposed to revise the

definition by removing paragraph (2),

inspection of equipment as required by

§§ 392.7 and 392.8, because the agency

had proposed to delete those sections.

Although the FHWA has determined it

is in the interest of safety to retain those

sections (see discussion earlier in this

document under those headings), the

agency believes the proposed text, ‘‘all

time inspecting, servicing, or

conditioning any commercial motor

vehicle at any time,’’ includes the

equipment, parts, and accessories

described in §§ 392.7 and 392.8. The

proposed language is therefore being

adopted.

Paragraph (7) under the definition of

on-duty time covers time spent

providing a breath sample or urine

specimen, including travel time to and

from the collection site, in order to

comply with the FHWA and USDOT

controlled substance and alcohol testing

regulations. The paragraph refers to

subpart H of part 391. After the NPRM

was published, the regulations in

subpart H of part 391 were removed

because they have been superseded by

part 382. The FHWA published a

technical amendment describing this

action on July 11, 1997 (62 FR 37150).

No commenters addressed the

proposed revision of § 395.2. The

FHWA has made several minor editorial

changes (such as deleting the phrase ‘‘of

this section’’) from the text proposed in

the NPRM. The reference to subpart H

is also removed as a technical

amendment.

Section 395.8, Driver’s Record of Duty

Status

The FHWA proposed revising

paragraph (k)(1) to reflect the proposal

described earlier in this document to

allow motor carriers with multiple

terminals or offices to maintain all

records required by Subchapter B at

regional offices or driver work-reporting

locations, provided records can be

produced at the principal place of

business or other specified location

within 48 hours after a request has been

made by a special agent or authorized

representative of the FHWA.

No commenters addressed the

provision as reflected in this section and

it is revised as proposed.

Section 396.11(b), Driver Vehicle

Inspection Report(s); Report Content

The proposed revision to this

paragraph was editorial in nature

(‘‘vehicle’’ for ‘‘motor vehicle’’ and

‘‘report’’ for ‘‘vehicle inspection

report’’). The FHWA received no

comments on the proposed revision,

and the final rule incorporates the

proposed changes.

Section 396.11(c), Corrective Action

The proposed revision to this

paragraph made the language consistent

with other parts of the FMCSRs (‘‘prior

to operating’’ replaced with ‘‘prior to

requiring or permitting a driver to

operate’’). The FHWA received no

comments, and this section is revised as

proposed in the NPRM.

Sections 396.11(c)(1) Through (c)(3),

396.11(d), and 396.13(b), Concerning

Driver Vehicle Inspection Report(s)

The FHWA proposed to remove

§ 396.11(c)(3), requiring a legible copy

of the last driver vehicle inspection

report (DVIR) to be carried on the power

unit. Other paragraphs within the

section would be revised to reflect this

change. The agency believed the

administrative burden of requiring the

DVIR to be carried on the power unit

outweighed its benefits. The NPRM

stated that the presence or absence of a

DVIR was not a factor in the decision to

conduct a roadside inspection of a CMV

and noted that failure to have the DVIR

is not an out-of-service violation under

the CVSA North American Out-ofService Criteria. However, the FHWA

emphasized that the proposed removal

of the requirement was not intended to

affect the driver’s access to the DVIR

and the requirement for the driver to

review it before driving a CMV.

The FHWA received six comments

concerning the proposal to delete these

provisions. Two commenters favored

the proposal, one suggested revisions to

the proposed language, and three

opposed it.

The ATA favored the proposal, but

believed it was insufficient to ‘‘alleviate

the burdens and costs of the remaining

‘paper chase’.’’ The ATA also

recommended the FHWA remove the

requirement that the motor carrier or its

agent certify correction of the defects on

the DVIR and require the next driver to

sign it. It contended that a review of a

motor carrier’s work orders, generated

in response to specific defects reported

by drivers, would be a more useful way

to ascertain whether maintenance

practices are effective at keeping CMVs

safe.

Houston L&P supported the proposal

as promoting performance-oriented

flexibility.

Consolidated Safety Services, Inc.

(CSS), a nationwide occupational safety

and health organization, offered

comments concerning the text of the

proposed revisions to § 396.11. CSS
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33271

interpreted the proposed language to

imply there is only one copy of the

DVIR. CSS maintains the industry

practice has been to use a two-copy

form (original and legible copy). CSS

recommended minor changes to the

proposed revision to clarify the

requirement for a single copy of the

DVIR as follows:

396.11(c)(1) Every motor carrier or its agent

shall certify on the original driver vehicle

inspection report which lists any defect or

deficiency that the defect or deficiency has

been repaired or that repair is unnecessary

before the vehicle is operated again.

396.11(c)(2) Every motor carrier shall

maintain the original driver vehicle

inspection report and the certification of

repairs, and the certification of the driver’s

review, for three months from the date the

written report was prepared.

The Colorado Department of Public

Safety (CDPS), the Pennsylvania DOT

(PennDOT), and Inspector Moore of the

Vermont DMV opposed the proposal.

The CDPS and Inspector Moore asserted

that a roadside inspector’s review of a

DVIR provides opportunities to

determine a driver’s knowledge of how

to perform a vehicle inspection, to

assess an example of a motor carrier’s

maintenance procedures, and to

determine whether education, review,

or enforcement actions are warranted.

The CDPS proposed that §§ 396.11

and 396.13 be combined into a single

requirement. The requirements for preand post-trip inspections would be

retained, but motor carriers would

determine which one would be

documented and the documentation

filed.

The PennDOT also found

inappropriate the FHWA’s rationale for

proposing to delete this section. The

PennDOT noted that, if the out-ofservice criteria were the only basis for

a regulatory requirement, then many of

the other existing regulations would

need to be eliminated as well.

Inspector Moore of the Vermont DMV

believed many motor carriers will

probably continue to carry the DVIR in

the vehicle because they find it

convenient to do so.

FHWA Response

The FHWA is removing § 396.11(c)(3)

and revising § 396.13(b) as proposed in

the NPRM, and incorporating the

modifications that CSS suggested. The

FHWA continues to believe that the

presence or absence of a DVIR in the

power unit is not a primary factor in a

decision to conduct a roadside

inspection. The FHWA believes the

concerns of the CDPS regarding

documentation of the inspection are

addressed because there is no change in

the requirement to document the results

of an inspection and certification of

corrective action.

The FHWA is not removing the

requirement for certification of

corrective action, as the ATA had

recommended be done. The ATA’s

recommendation of reviewing a work

order would significantly increase the

complexity and time required to

determine how a reported CMV defect

had been resolved. It would require a

driver to contact maintenance personnel

who might not be available when the

driver was being dispatched. It would

also require FHWA motor carrier safety

specialists to examine and cross-check

separate maintenance and operational

records. The final rule otherwise adopts

the changes proposed in the NPRM.

Section 397.19, Transportation of

Hazardous Materials; Driving and

Parking Rules; Instructions and

Documents

The FHWA proposed to revise the text

of this section to remove the reference

to the motor carrier’s principal place of

business in paragraph (b) to reflect the

proposal described earlier in this

document. The effect of this change

would be to allow motor carriers with

multiple terminals or offices to maintain

all records required by Subchapter B at

regional offices or driver work-reporting

locations, provided records can be

produced at the principal place of

business or another specified location

within 48 hours after a request has been

made by a special agent or authorized

representative of the FHWA.

No commenters addressed this

provision and it is revised as proposed.

Comments on FMCSR Sections Not

Addressed in the NPRM Definition of

CMV

Houston L&P, Alabama Power, and

Southern Company Services, Inc.,

believe a CMV should be defined to

include vehicles of 26,001 or more

pounds. The AAMVA and Ameritech

Corporation (Ameritech) recommended

the FHWA reconcile the weight

definitions in parts 383 and 390 ‘‘so

only one definition exists.’’ Ameritech

believed the FHWA should evaluate the

current GVWR criteria for the CMV

definitions, weigh the regulatory burden

and return on safety performance, and

assess the different points where States

apply the intrastate CMV safety

regulations. Ameritech also stated the

FMCSRs should apply to ‘‘all applicable

drivers * * * whether they operate a

12,000 pound utility truck or an 80,000

pound long-haul vehicle.’’

FHWA Response

The FHWA is currently addressing

the issue of the application of the

FMCSRs to different weight classes of

CMVs, the motor carriers operating

them, and their drivers, in several

ongoing regulatory activities. Section

344 of the National Highway System

Designation Act of 1995 (Pub. L. 104–

59, 109 Stat. 568) calls for a ‘‘Motor

Carrier Regulatory Relief and

Demonstration Project’’ to exempt CMVs

and their drivers from elements of the

FMCSRs for a 3-year pilot period (49

U.S.C. 31136(e)(2)). Applicant motor

carriers must have an exemplary safety

history to participate. The Secretary of

Transportation will oversee safety

through monitoring and reporting of

safety-related data. A Notice of Final

Determination for this project was

published in the Federal Register on

June 10, 1997 (62 FR 31655). The FHWA

is accepting applications through June

30, 1998.

State Conformity With Interstate

Regulations

The Pennsylvania DOT noted that its

State Vehicle Code is automatically

revised to conform to changes in the

FMCSRs. It added that not all States

have this provision, and

incompatibilities between State and

Federal regulations could arise.

FHWA Response

Several other States have brought

similar concerns to the FHWA’s

attention from time to time. Because of

differences in State laws and

administrative procedures, the process

to adopt FMCSR revisions into State

regulations takes one of three paths.

Twenty-four States adopt the FMCSRs

by reference. Nineteen others adopt the

FMCSRs into their State regulations

following an administrative review

process performed by executive-branch

agencies (such as the State Department

of Transportation). Nine States adopt

changes after legislative review and

process. One State adopts most changes

through administrative process, but

requires a legislative process for others.

The FHWA’s MCSAP provides a phasein period of no longer than three years

for States to revise their regulations to

respond to revisions to the FMCSRs.

Despite the variation in State adoption

procedures and schedules, however, the

MCSAP has produced a degree of

national uniformity in commercial

motor vehicle safety regulations never

before achieved.
33272 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

Enforcement Powers of Civilian State

Motor Carrier Safety Personnel

The Pennsylvania DOT staffs its

motor carrier safety programs with

uniformed personnel from State and

local police forces, as well as with

civilian Public Utilities Commission

and DOT inspectors. The Pennsylvania

DOT advises the FHWA that its civilian

officials, who are not sworn police

officers, have limited enforcement

powers. For example, they cannot

enforce local traffic regulations

concerning the use of turn signals, but

they can cite a CMV driver under a

State’s version of 49 CFR 392.15,

Required and prohibited use of turn

signals.

FHWA Response

There are many more sworn officers

in any given jurisdiction than there are

civilian motor carrier safety officials.

Although the Pennsylvania DOT may

have to limit civilian inspectors to

certain tasks, the FHWA believes there

will be little, if any, negative impact

from deleting § 392.15, as well as

several other regulations adequately

covered under State and local traffic

laws.

Performance Oriented Compliance

Criteria

Houston L&P suggested motor carriers

with a satisfactory safety rating be

relieved of certain regulatory

requirements and be allowed to

maintain ‘‘core records.’’ These could

include the Driver Qualification File

(§ 391.51), Alcohol and Drug Testing

(part 382, pre-employment drug testing,

post-accident testing, random testing at

a 25 percent rate for drugs and 10

percent rate for alcohol), and documents

pertaining to financial responsibility

requirements (part 387), Inspection,

repair, and maintenance (part 396), and

hazardous materials. Houston L&P

believes that, if a motor carrier were

assigned an ‘‘Unsatisfactory’’ safety

rating, the motor carrier should be

required to add hours of service (part

395) and increase the random testing

rates to 50 percent for drugs and 25

percent for alcohol.

FHWA Response

The FHWA may consider these

comments in future rulemaking actions

as part of the Zero-Base Regulatory

Reform Initiative.

Other Simplifications, Clarifications

Requested

Alabama Power and Southern

Company Services, Inc. believe the zerobase process must continue to address

regulations they consider burdensome

and of questionable value for safety:

‘‘Each section of the FMCSRs should be

considered individually and impacted

industries allowed to debate the

requirements.’’ They believe further

simplification and clarification of some

regulations is needed, including raising

the threshold for FMCSR applicability

to 26,000 pounds, requiring States to be

more consistent regarding waivers and

exemptions, and revising the hours-ofservice regulations.

FHWA Response

The FHWA is currently addressing all

of these issues. The agency is

implementing a demonstration program

required under Section 344 of the

National Highway System Designation

Act to exempt motor carriers operating

vehicles with a GVWR of 10,001 to

26,000 pounds from certain regulations

(61 FR 44385). The FHWA’s MCSAP

program activities and its consultative

role in the CVSA continually address

compatibility between State and federal

determinations of applicability to motor

carrier safety regulations. The FHWA

has also initiated a rulemaking to revise

the hours-of-service regulations (61 FR

57252, November 5, 1996).

Section 392.10(a), Railroad Grade

Crossings; Stopping Required

The ATA recommended the FHWA

delete this section’s prohibition against

shifting gears while crossing railroad

tracks. The ATA contends that without

this provision, CMVs would be able to

negotiate grade crossings in shorter

periods of time. The ATA based this

conclusion upon results of a computer

simulation performed by a major engine

manufacturer (the ATA did not name

the company). The simulation modeled

crossing times for an 80,000 pound

CMV consisting of a tractor powered by

a 330-hp engine with 10-speed

transmission towing a 53-foot

semitrailer. For an upshift from third to

fifth gear, times for crossing a single

track were computed to be reduced from

13.6 to 9.9 seconds. For crossing a

double track, the times were computed

to be reduced from 14.8 to 10.6 seconds.

FHWA response

The FHWA appreciates this

information. However, before a

regulatory change can be considered,

more analyses will be needed, similar to

the work performed by the University of

Michigan Transportation Research

Institute for the FHWA in 1985 and

reported in Consequences of Mandatory

Stops at Rail-Highway Crossings (Report

FHWA/RD–86/014). Those analyses

should explore the influence of engine

power ratings, longer trailer

combinations including multiple

trailers, multiple-track grade crossings,

and different grades at the crossings.

Section 392.33, Obscured Lamps or

Reflectors

The Colorado DPS suggested this

section be removed because State law

already requires that lamps be visible

and §§ 396.3(a)(1) and 396.7 appear to

cover this violation.

FHWA Response

The FHWA will consider this in a

separate rulemaking as part of its ZeroBase Regulatory Reform initiative.

Section 393.70, Coupling Devices and

Towing Methods, Except for DriveawayTowaway Operations

Inspector Moore of the Vermont DMV

requested the FHWA to revise the

section to include a discussion of

coupling device requirements for the

towing of semitrailers not equipped

with fifth wheel assemblies, such as

those using pintle hook devices.

FHWA Response

The FHWA is addressing coupling

devices and towing methods in a

separate NPRM published April 14,

1997 (62 FR 18170). Among other

things, the NPRM proposes revising

§§ 393.70 and 393.71.

Section 395.1(e), 100 Air-Mile Radius

Driver

This provision concerns the

exemption from the requirements of

§ 395.8 for drivers who operate within a

100 air-mile radius of the drivers’

normal work reporting location and

return to the normal work reporting

location and are released from work

within 12 consecutive hours.

The Distribution and LTL Carriers

Association (LTL) recommended the

FHWA increase the 100 air-mile radius

to 150 air-miles, or, alternatively,

provide the exemption to drivers who

report to and are released from a normal

reporting location and who are on duty

for 12 hours or less. The LTL also

suggested linking the § 395.8 exemption

to three of the five requirements in the

current regulation: (1) the driver’s onduty status was 12 consecutive hours

from start to finish of the shift; (2) the

driver commences and concludes work

at points where the motor carrier can

verify the driver’s on-duty status; and

(3) the employer maintains accurate

time records on shift starting time,

completion time, and total hours onduty. The LTL also raised the possibility

of increasing the consecutive hours of

the work shift in § 395.1(e)(2), but it did

not specify a figure or range.
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33273

The LTL provided historical and

operational perspectives to support its

proposal. In 1980, the 100 air-mile

exemption was increased from 50 airmiles. The same year, economic

deregulation provided motor carriers the

opportunity to expand their operations

to meet customer needs. The LTL

asserted that flexibility to meet those

needs ‘‘may necessitate more routine

operations beyond 100 miles from

terminals.’’ According to the LTL, other

factors, such as the use of largercapacity 28-foot doubles trailers for

linehaul operations, improvements to

road networks, and increased

operational scope of terminals and

warehouses in large metropolitan areas,

make it possible for runs within a 150-

mile radius to be performed safely and

efficiently under the current 10-hour

driving limit, and within 12 hours of the

time a driver reports to work.

According to the LTL, approximately

24 percent of the employees of

distribution and LTL motor carriers are

local or shorthaul drivers. Based on that

figure, extending the exemption could

relieve some 100,000 drivers of the

paperwork burden of records of duty

status. The LTL noted that the States of

Illinois, Maryland, and Texas already

permit a 150-air-mile radius exemption

for intrastate transportation under the

MCSAP Tolerance Guidelines, but that

the FHWA had determined Florida’s

200 air-mile radius exemption did not

conform to the Guidelines.

FHWA Response

The FHWA recognizes that some

drivers operating outside the 100 airmile radius might drive less than a

driver operating within the 100 air-mile

radius. This brings into question the

value of a distance-based compliance

‘‘floor’’ for records of the type required

under § 395.8. The FHWA will address

the issue of distance- and time-based

exemptions to § 395.8 in a future

rulemaking.

Section 395.8(k), Retention of Driver’s

Record of Duty Status

The Department of California

Highway Patrol (CHP) suggests that the

FHWA define ‘‘supporting documents’’

using the text of the November 1993

Regulatory Guidance (58 FR 60734).

FHWA Response

As part of the Hazardous Materials

Transportation Authorization Act of

1994 (Sec. 113, Pub.L. 103–311, 108

Stat. 1673, 1676), the Congress directed

the Secretary of Transportation to

prescribe regulations to improve

compliance with the hours of service

requirements, and to improve the

effectiveness and efficiency of Federal

and State officials reviewing such

compliance. As part of that mandate,

Congress directed the FHWA to specify

the supporting documents that motor

carriers must maintain. The FHWA is

addressing this issue in a Notice of

Proposed Rulemaking published April

20, 1998 (63 FR 19457). The docket

number is FHWA–98–3706. Comments

are requested by June 19, 1998.

Section 396.9(d), Inspection of Motor

Vehicles in Operation; Motor Carrier

Disposition

Section 396.9(d) requires correction of

violations or defects noted in the report,

and requires the motor carrier to certify

those corrections within 15 days

following receipt of the report. In his

comments, Inspector Moore of the

Vermont DMV contended that motor

carriers interpret this to mean they have

15 days to correct the violation.

Inspector Moore requested this

statement be amended to advise motor

carriers that ‘‘violations or defects

identified on an inspection report, but

which have not been designated as outof-service violations, be repaired or

corrected prior to use of the vehicle for

any purpose other than the specific

assignment it was engaged in at the time

of the inspection.’’

FHWA Response

The FHWA believes the current

language of the regulation adequately

addresses this issue.

Other Comments

Virginia Power and the Petroleum

Marketers Association of America stated

that they supported all the proposed

changes.

For ease of reference the following

distribution table is provided:

Old section New section

387:5 ......................... 387.5.

For-hire carriage ........ Revised.

Motor carrier .............. Revised.

None .......................... 387.27(b)(4) [added].

387.29 ....................... 387.29.

Motor common carrier Removed.

Motor contract carrier Removed.

For-hire carriage ........ Revised.

Motor carrier .............. Revised.

390.3(f)(2) .................. Revised.

390.5 ......................... 390.5 definitions revised.

Accident ..................... Revised.

Commercial motor vehicle.Revised.

Highway ..................... Added.

Intermittent, casual, or

occasional driver..

Renamed: Multipleemployer driver.

Interstate commerce Revised.

Principal place of

business.

Revised.

Old section New section

Regularly employed

driver.

Renamed: Single-employer driver.

None .......................... 390.29 added.

391.11 ....................... 391.11 section heading revised.

391.11(b)(4), (b)(5) .... Redesignated as

391.13(a),(b).

391.11(b)(6) ............... 391.11(b)(4).

391.11(b)(7) ............... 391.11(b)(5) and revised.

391.11(b)(8) ............... 391.11(b)(6).

391.11(b)(9) ............... 391.11(b)(7).

391.11(b)(10) ............. 391.11(b)(8) and revised.

391.11(b)(11) ............. Removed.

None .......................... 391.13 added.

391.15(b) ................... 391.15(b)(1) and (2).

391.25 ....................... Revised.

391.33(a)(1) ............... Revised.

391.51(a) ................... Revised.

391.51(b) introduction Revised.

391.51(b)(1) ............... 391.51(b)(7).

391.51(b)(2) ............... 391.51(b)(8).

391.51(b)(3) ............... 391.51(b)(5).

391.51(b)(4) ............... 391.51(b)(6).

391.51(b)(5) ............... Removed.

391.51(c) introduction Removed.

391.51(c)(1) ............... Removed.

391.51(c)(2) ............... 391.51(b)(1).

391.51(c)(3) ............... 391.51(b)(2).

391.51(c)(4) ............... 391.51(b)(3).

None .......................... 391.51(b)(4).

391.51(d) ................... Removed.

391.51(e) ................... Removed.

391.51(f) .................... 391.51(c).

391.51(g) ................... Removed.

391.51(h) intro ........... 391.51(d) intro.

391.51(h)(1) ............... 391.51(d)(4).

391.51(h)(2) ............... 391.51(d)(2).

391.51(h)(3) ............... 391.51(d)(3).

391.51(h)(4) ............... 391.51(d)(5).

None .......................... 391.51(d)(1).

391.61 ....................... Revised.

391.63 ....................... Revised.

391.65(b) and (c) ...... Revised.

391.67 ....................... Revised.

391.68 ....................... Revised.

391.69 Drivers operating in Hawaii.Removed.

391.71 ....................... Removed and reserved.

391.73 ....................... Redesignated as

§ 391.69 and revised.

392.9(c) ..................... Redesignated as

§ 392.62 and revised.

392.9b ....................... Removed.

392.13 ....................... Removed and reserved.

392.15 ....................... Removed and reserved.

392.20 ....................... Removed. and reserved.

392.22(b)(1) ............... Revised.

392.25 ....................... Revised section

heading.

392.42 ....................... Redesignated as

§ 391.15(b)(2) and

revised.

392.51 ....................... Revised.

392.52 ....................... Removed and reserved.
33274 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

Old section New section

392.68 ....................... Removed and reserved.

395.1(g) ..................... Removed.

395.1(h) ..................... Redesignated as

§ 395.1(g).

395.1(i) ...................... Redesignated as

§ 395.1(h).

395.1(j) ...................... Redesignated as

§ 395.1(i).

395.1(k) ..................... Redesignated as

§ 395.1(j).

395.1(l) ...................... Redesignated as

§ 395.1(k).

395.1(m) .................... Redesignated as

§ 395.1(l).

395.1(n) ..................... Redesignated as

§ 395.1(m).

395.1(o) ..................... Redesignated as

§ 395.1(n).

395.2: ........................ 395.2 definitions revised.

On-duty time .............. Revised.

395.8(k)(1) ................. Revised.

396.11(b) ................... Revised.

396.11(c) ................... Revised.

396.11(c)(1) ............... Revised.

396.11(c)(2) ............... Revised.

396.11(c)(3) ............... Removed.

396.11(d) ................... Revised.

396.13(b) ................... Revised.

397.19(b) ................... Revised.

Rulemaking Analyses and Notices

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this

regulatory action is not significant

under Executive Order 12866 or

regulatory policies and procedures of

the DOT. It is anticipated that the

economic impact of this rulemaking will

be minimal. In addition, this regulatory

action is not expected to cause an

adverse effect on any sector of the

economy. The regulations which are the

subject of this rulemaking are obsolete,

redundant, unnecessary, ineffective,

burdensome, more appropriately

regulated by State and local authorities,

better addressed by company policy, in

need of clarification, or more

appropriately contained in another

section. Thus, the rulemaking actually

lessens the burden imposed by

regulations which are being removed,

amended, or redesignated. No serious

inconsistency or interference with

another agency’s actions or plans will

result because this rulemaking deals

exclusively with the FMCSRs. In

addition, the rights and obligations of

recipients of Federal grants will not be

materially affected by this regulatory

action. In light of this analysis, the

FHWA finds that a full regulatory

evaluation is not required.

Regulatory Flexibility Act

In compliance with the Regulatory

Flexibility Act (5 U.S.C. 601–612), the

FHWA has evaluated the effects of this

rule on small entities. The FHWA

believes this rule will not have a

significant economic impact on a

substantial number of small entities.

For the most part, this rulemaking

will reduce the burden of complying

with the FMCSRs by making the

regulations clearer and less repetitious.

As a result, all entities which are subject

to these regulations would benefit,

regardless of size. Any benefits resulting

from this action, however, would not be

of sufficient magnitude to generate a

significant economic impact on small

entities that would require a full

regulatory flexibility analysis to be

performed.

This regulatory action will also

facilitate compliance with the FMCSRs

by removing certain regulations that are

more appropriately addressed by

company policy. This action will

provide motor carriers with more

flexibility in furthering the safety of

their operations.

Unfunded Mandates Reform Act of 1995

The Unfunded Mandates Reform Act

of 1995 (Pub. L. 104–4; 2 U.S.C. 1532)

requires each agency to assess the

effects of its regulatory actions on State,

local, and tribal governments and the

private sector. Any agency promulgating

a final rule likely to result in a Federal

mandate requiring expenditures by a

State, local, or tribal government or by

the private sector of $100 million or

more in any one year must prepare a

written statement incorporating various

assessments, estimates, and descriptions

that are delineated in the Act. The

FHWA has determined that the changes

in this rulemaking will not have an

impact of $100 million or more in any

one year.

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 this

rule does not have sufficient federalism

impacts to warrant the preparation of a

Federalism Assessment.

These changes to the FMCSRs will not

preempt any State law or regulation and

no additional costs or burdens will be

imposed on the States. In fact,

regulatory burdens will be reduced as a

result of this rulemaking. In addition,

this action will not have a significant

effect on the States’ ability to execute

traditional State governmental

functions.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.217,

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

Although this rulemaking does not

impose new information collection

requirements, it will change existing

information collections. These changes

were submitted to the Office of

Management and Budget (OMB) for

approval in accordance with the

Paperwork Reduction Act of 1995, 44

U.S.C. 3501–3520. The final rule revises

two elements and deletes one element

within the existing information

collections.

The first element is a recordkeeping

requirement, Annual inquiry into

drivers’ driving records, included in the

following information collection at

§ 391.51 OMB Control Number 2125–

0065:

Title: Driver Qualification Files.

Affected Public: Approximately

405,000 motor carriers.

Abstract: Motor carriers are required

to maintain a driver qualification file for

each CMV driver to document that the

driver meets the qualification standards

to drive in interstate commerce.

Need: To ensure motor carriers

employ only qualified interstate CMV

drivers.

Requested Time Period of Approval:

Three years.

Estimated Annual Burden: Based on

an estimate of 5,500,000 interstate CMV

drivers, and 405,000 motor carriers

subject to the regulation, the initial

employment applications impose an

annual burden of 23,833 hours on

drivers and 11,917 hour on motor

carriers. Initial inquiry into drivers’

records and investigations into

employment records impose a burden of

178,750 hours. Annual inquiries into

drivers’ driving records impose an

estimated annual burden of 398,750

hours. The recordkeeping requirements

related to the list of certification of

violations impose an estimated annual

burden of 159,500 hours. The total

estimated burden is 777,333 hours. The

OMB has approved this information

collection through October 31, 2000.

The second information collection

revision involves the requirement that

motor carriers who use a driver

furnished by another motor carrier

obtain information regarding the

validity of the driver’s qualification
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33275

certificate. This requirement is included

in the following information collection

required under § 391.63 and

documented under OMB Control

Number 2125–0081:

Title: Qualification Certificate.

Affected Public: Approximately

405,000 motor carriers.

Abstract: A motor carrier that

employs a driver who is furnished by

another motor carrier, is exempt from

maintaining a driver qualification file

for such driver, provided a qualification

certificate is obtained from the

furnishing motor carrier.

Need: To ensure motor carriers

employ only qualified interstate CMV

drivers.

Requested Time Period of Approval:

Three years.

Estimated Annual Burden: The

proposed information collection

involving contacts to verify the validity

of qualification certificates increases the

total estimated annual burden of

qualification certificates (approved by

the OMB under control number 2125–

0081) by 13,750 hours, from 13,750 total

hours to 27,500 total hours. This

information collection was approved by

OMB through April 30, 2000.

The third information collection

revision deletes the requirement

codified at 49 CFR 396.11(c)(3) for a

copy of the driver vehicle inspection

report to be carried on the CMV’s power

unit.

Title: Inspection, Repair, and

Maintenance.

OMB Number: 2125–0037.

Abstract: Motor carriers must

maintain, or cause to be maintained,

records that document the inspection,

repair, and maintenance activities

performed on their owned or leased

motor vehicles. There are no prescribed

forms. The records are used by the

FHWA and its representatives to verify

motor carriers’ compliance with the

inspection, repair, and maintenance

standards in part 396 of the FMCSRs.

Respondents: 405,000 motor carriers.

Estimated Total Annual Burden per

Record: 3,848,000 hours for routine

inspection, repair, and maintenance

records; 32,271,702 hours for driver

vehicle inspection reports; 145,431

hours for the motor carrier disposition;

87,333 hours for the periodic

inspection; 9,330 hours for the records

of inspector qualifications; and 10,361

hours for the evidence of brake

inspector qualifications.

Revision to Information collection

budget for this item: The FHWA has

determined safety will not be adversely

impacted if it removes the requirement

for a copy of the driver vehicle

inspection report to be carried on the

CMV’s power unit. This will reduce the

time burden by 4,661,468 hours for this

item from the current 33,114,100 hours

to 28,452,600 hours for the overall

information collection. This information

collection was approved by OMB

through October 31, 2000. A discussion

of this revision appears under the

comments concerning part 396.

National Environmental Policy Act

The agency has analyzed this action

for the purpose of the National

Environmental Policy Act of 1969 (42

U.S.C. 4321–4347) and has determined

that this action would not have any

effect on the quality of the environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects

49 CFR Part 387

Hazardous materials transportation,

Highway safety, Insurance,

Intergovernmental relations, Motor

carriers, Motor vehicle safety, Penalties,

Reporting and recordkeeping

requirements, Surety bonds.

49 CFR Part 390

Highway safety, Motor carriers, Motor

vehicle safety, Reporting and

recordkeeping requirements.

49 CFR Part 391

Highway safety, Motor carriers, Motor

vehicle safety, Reporting and

recordkeeping requirements.

49 CFR Part 392

Highway safety, Motor carriers, Motor

vehicle safety.

49 CFR Part 395

Global positioning systems, Highway

safety, Intelligent transportation

systems, Motor carriers, Motor vehicle

safety, Reporting and recordkeeping

requirements.

49 CFR Part 396

Highway safety, Motor carriers, Motor

vehicle maintenance, Motor vehicle

safety, Reporting and recordkeeping

requirements.

49 CFR Part 397

Hazardous materials transportation,

Highway safety, Intergovernmental

relations, Motor carriers, Motor vehicle

safety, Reporting and recordkeeping

requirements.

Issued on: June 9, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

In consideration of the foregoing, the

FHWA amends title 49, Code of Federal

Regulations, chapter III, subchapter B,

parts 387, 390, 391, 392, 395, 396, and

397 as set forth below:

PART 387—MINIMUM LEVELS OF

FINANCIAL RESPONSIBILITY FOR

MOTOR CARRIERS

1. The authority citation for part 387

continues to read as follows:

Authority: 49 U.S.C. 13101, 13301, 13906,

14701, 31138, and 31139; and 49 CFR 1.48.

2. In § 387.5, the definitions For-hire

carriage and Motor carrier are revised to

read as follows:

§ 387.5 Definitions.

* * * * *

For-hire carriage means the business

of transporting, for compensation, the

goods or property of another.

* * * * *

Motor carrier means a for-hire motor

carrier or a private motor carrier. The

term includes, but is not limited to, a

motor carrier’s agent, officer, or

representative; an employee responsible

for hiring, supervising, training,

assigning, or dispatching a driver; or an

employee concerned with the

installation, inspection, and

maintenance of motor vehicle

equipment and/or accessories.

* * * * *

3. Section 387.27 is amended by

removing ‘‘and’’ at the end of paragraph

(b)(2), by removing the period at the end

of paragraph (b)(3) and adding ‘‘; and’’

in its place, and by adding paragraph

(b)(4) to read as follows:

§ 387.27 Applicability.

* * * * *

(b) Exception. * * *

* * * * *

(4) A motor vehicle operated by a

motor carrier under contract providing

transportation of preprimary, primary,

and secondary students for

extracurricular trips organized,

sponsored, and paid by a school district.

4. In § 387.29, the definitions of the

terms Motor common carrier and Motor

contract carrier are removed and the

definitions of For-hire carriage and

Motor carrier are revised to read as

follows:

§ 387.29 Definitions.

* * * * *
33276 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

For-hire carriage means the business

of transporting, for compensation,

passengers and their property, including

any compensated transportation of the

goods or property or another.

* * * * *

Motor carrier means a for-hire motor

carrier. The term includes, but is not

limited to, a motor carrier’s agent,

officer, or representative; an employee

responsible for hiring, supervising,

training, assigning, or dispatching a

driver; or an employee concerned with

the installation, inspection, and

maintenance of motor vehicle

equipment and/or accessories.

* * * * *

PART 390—FEDERAL MOTOR

CARRIER SAFETY REGULATIONS;

GENERAL

5. The authority citation for part 390

is revised to read as follows:

Authority: 49 U.S.C. 13301, 13902, 31132,

31133, 31136, 31502, and 31504; sec. 204,

Pub. L. 104–88, 109 Stat. 803, 941 (49 U.S.C.

701 note); and 49 CFR 1.48.

6. Section 390.3 is amended by

revising paragraph (f)(2) to read as

follows:

§ 390.3 General applicability.

* * * * *

(f) * * *

(2) Transportation performed by the

Federal government, a State, or any

political subdivision of a State, or an

agency established under a compact

between States that has been approved

by the Congress of the United States;

* * * * *

7. In § 390.5, the definition of the term

Accident is revised; the term Highway is

added; the term Intermittent, casual, or

occasional driver is removed; the term

Multiple-employer driver is added; the

term Regularly employed driver is

removed; the term Single-employer

driver is added; and the terms

Commercial motor vehicle, Interstate

commerce, and Principal place of

business are revised. All are placed in

alphabetical order and read as follows:

§ 390.5 Definitions.

* * * * *

Accident means—

(1) Except as provided in paragraph

(2) of this definition, an occurrence

involving a commercial motor vehicle

operating on a highway in interstate or

intrastate commerce which results in:

(i) A fatality;

(ii) Bodily injury to a person who, as

a result of the injury, immediately

receives medical treatment away from

the scene of the accident; or

(iii) One or more motor vehicles

incurring disabling damage as a result of

the accident, requiring the motor

vehicle(s) to be transported away from

the scene by a tow truck or other motor

vehicle.

(2) The term accident does not

include:

(i) An occurrence involving only

boarding and alighting from a stationary

motor vehicle; or

(ii) An occurrence involving only the

loading or unloading of cargo.

* * * * *

Commercial motor vehicle means any

self-propelled or towed vehicle used on

a highway in interstate commerce to

transport passengers or property when

the vehicle—

(1) Has a gross vehicle weight rating

or gross combination weight rating of

4,537 kg (10,001 lb) or more; or

(2) Is designed to transport 16 or more

passengers, including the driver; or

(3) Is of any size and is used in the

transportation of materials found to be

hazardous for the purposes of the

Hazardous Materials Transportation Act

(49 U.S.C. 5101 et seq.) and which

require the motor vehicle to be

placarded under the Hazardous

Materials Regulations (49 CFR chapter I,

subchapter C).

* * * * *

Highway means any road, street, or

way, whether on public or private

property, open to public travel. ‘‘Open

to public travel’’ means that the road

section is available, except during

scheduled periods, extreme weather or

emergency conditions, passable by fourwheel standard passenger cars, and

open to the general public for use

without restrictive gates, prohibitive

signs, or regulation other than

restrictions based on size, weight, or

class of registration. Toll plazas of

public toll roads are not considered

restrictive gates.

Interstate commerce means trade,

traffic, or transportation in the United

States—

(1) Between a place in a State and a

place outside of such State (including a

place outside of the United States);

(2) Between two places in a State

through another State or a place outside

of the United States; or

(3) Between two places in a State as

part of trade, traffic, or transportation

originating or terminating outside the

State or the United States.

* * * * *

Multiple-employer driver means a

driver, who in any period of 7

consecutive days, is employed or used

as a driver by more than one motor

carrier.

* * * * *

Principal place of business means the

single location designated by the motor

carrier, normally its headquarters, for

purposes of identification under this

subchapter. The motor carrier must

make records required by parts 382, 387,

390, 391, 395, 396, and 397 of this

subchapter available for inspection at

this location within 48 hours

(Saturdays, Sundays, and Federal

holidays excluded) after a request has

been made by a special agent or

authorized representative of the Federal

Highway Administration.

* * * * *

Single-employer driver means a driver

who, in any period of 7 consecutive

days, is employed or used as a driver

solely by a single motor carrier. This

term includes a driver who operates a

commercial motor vehicle on an

intermittent, casual, or occasional basis.

* * * * *

8. Section 390.29 is added to read as

follows:

§ 390.29 Location of records or

documents.

(a) A motor carrier with multiple

offices or terminals may maintain the

records and documents required by this

subchapter at its principal place of

business, a regional office, or driver

work-reporting location unless

otherwise specified in this subchapter.

(b) All records and documents

required by this subchapter which are

maintained at a regional office or driver

work-reporting location shall be made

available for inspection upon request by

a special agent or authorized

representative of the Federal Highway

Administration at the motor carrier’s

principal place of business or other

location specified by the agent or

representative within 48 hours after a

request is made. Saturdays, Sundays,

and Federal holidays are excluded from

the computation of the 48-hour period

of time.

PART 391—QUALIFICATIONS OF

DRIVERS

9. The authority citation for part 391

continues to read as follows:

Authority: 49 U.S.C. 504, 31133, 31136,

and 31502; and 49 CFR 1.48.

10. Section 391.11 is amended by

revising the section heading and by

revising paragraph (b) to read as follows:

§ 391.11 General qualifications of drivers.

* * * * *

(b) Except as provided in subpart G of

this part, a person is qualified to drive

a motor vehicle if he/she—

(1) Is at least 21 years old;
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33277

(2) Can read and speak the English

language sufficiently to converse with

the general public, to understand

highway traffic signs and signals in the

English language, to respond to official

inquiries, and to make entries on reports

and records;

(3) Can, by reason of experience,

training, or both, safely operate the type

of commercial motor vehicle he/she

drives;

(4) Is physically qualified to drive a

commercial motor vehicle in accordance

with subpart E—Physical Qualifications

and Examinations of this part;

(5) Has a currently valid commercial

motor vehicle operator’s license issued

only by one State or jurisdiction;

(6) Has prepared and furnished the

motor carrier that employs him/her with

the list of violations or the certificate as

required by § 391.27;

(7) Is not disqualified to drive a

commercial motor vehicle under the

rules in § 391.15; and

(8) Has successfully completed a

driver’s road test and has been issued a

certificate of driver’s road test in

accordance with § 391.31, or has

presented an operator’s license or a

certificate of road test which the motor

carrier that employs him/her has

accepted as equivalent to a road test in

accordance with § 391.33.

11. Section 391.13 is added to read as

follows:

§ 391.13. Responsibilities of drivers.

In order to comply with the

requirements of § 392.9(a) and § 393.9 of

this subchapter, a motor carrier shall not

require or permit a person to drive a

commercial motor vehicle unless the

person—

(a) Can, by reason of experience,

training, or both, determine whether the

cargo he/she transports (including

baggage in a passenger-carrying

commercial motor vehicle) has been

properly located, distributed, and

secured in or on the commercial motor

vehicle he/she drives;

(b) Is familiar with methods and

procedures for securing cargo in or on

the commercial motor vehicle he/she

drives.

12. Section 391.15 is amended by

revising paragraph (b) to read as follows:

§ 391.15 Disqualification of drivers.

* * * * *

(b) Disqualification for loss of driving

privileges. (1) A driver is disqualified

for the duration of the driver’s loss of

his/her privilege to operate a

commercial motor vehicle on public

highways, either temporarily or

permanently, by reason of the

revocation, suspension, withdrawal, or

denial of an operator’s license, permit,

or privilege, until that operator’s

license, permit, or privilege is restored

by the authority that revoked,

suspended, withdrew, or denied it.

(2) A driver who receives a notice that

his/her license, permit, or privilege to

operate a commercial motor vehicle has

been revoked, suspended, or withdrawn

shall notify the motor carrier that

employs him/her of the contents of the

notice before the end of the business

day following the day the driver

received it.

* * * * *

13. Section 391.25 is revised to read

as follows:

§ 391.25 Annual inquiry and review of

driving record.

(a) Except as provided in subpart G of

this part, each motor carrier shall, at

least once every 12 months, make an

inquiry into the driving record of each

driver it employs, covering at least the

preceding 12 months, to the appropriate

agency of every State in which the

driver held a commercial motor vehicle

operator’s license or permit during the

time period.

(b) Except as provided in subpart G of

this part, each motor carrier shall, at

least once every 12 months, review the

driving record of each driver it employs

to determine whether that driver meets

minimum requirements for safe driving

or is disqualified to drive a commercial

motor vehicle pursuant to § 391.15.

(1) The motor carrier must consider

any evidence that the driver has

violated any applicable Federal Motor

Carrier Safety Regulations in this

subchapter or Hazardous Materials

Regulations (49 CFR chapter I,

subchapter C).

(2) The motor carrier must consider

the driver’s accident record and any

evidence that the driver has violated

laws governing the operation of motor

vehicles, and must give great weight to

violations, such as speeding, reckless

driving, and operating while under the

influence of alcohol or drugs, that

indicate that the driver has exhibited a

disregard for the safety of the public.

(c) Recordkeeping. (1) A copy of the

response from each State agency to the

inquiry required by paragraph (a) of this

section shall be maintained in the

driver’s qualification file.

(2) A note, including the name of the

person who performed the review of the

driving record required by paragraph (b)

of this section and the date of such

review, shall be maintained in the

driver’s qualification file.

14. Section 391.33, paragraph (a)(1) is

revised to read as follows:

§ 391.33 Equivalent of road test.

(a) * * *

(1) A valid Commercial Driver’s

License as defined in § 383.5 of this

subchapter, but not including double/

triple trailer or tank vehicle

endorsements, which has been issued to

him/her to operate specific categories of

commercial motor vehicles and which,

under the laws of that State, licenses

him/her after successful completion of a

road test in a commercial motor vehicle

of the type the motor carrier intends to

assign to him/her; or

15. Section 391.51 is revised to read

as follows:

§ 391.51 General requirements for driver

qualification files.

(a) Each motor carrier shall maintain

a driver qualification file for each driver

it employs. A driver’s qualification file

may be combined with his/her

personnel file.

(b) The qualification file for a driver

must include:

(1) The driver’s application for

employment completed in accordance

with § 391.21;

(2) A written record with respect to

each past employer who was contacted

and a copy of the response by each State

agency, pursuant to § 391.23 involving

investigation and inquiries;

(3) The certificate of driver’s road test

issued to the driver pursuant to

§ 391.31(e), or a copy of the license or

certificate which the motor carrier

accepted as equivalent to the driver’s

road test pursuant to § 391.33;

(4) The response of each State agency

to the annual driver record inquiry

required by § 391.25(a);

(5) A note relating to the annual

review of the driver’s driving record as

required by § 391.25(c)(2);

(6) A list or certificate relating to

violations of motor vehicle laws and

ordinances required by § 391.27;

(7) The medical examiner’s certificate

of his/her physical qualification to drive

a commercial motor vehicle as required

by § 391.43(f) or a legible photographic

copy of the certificate; and

(8) A letter from the Regional Director

of Motor Carriers granting a waiver of a

physical disqualification, if a waiver

was issued under § 391.49.

(c) Except as provided in paragraph

(d) of this section, each driver’s

qualification file shall be retained for as

long as a driver is employed by that

motor carrier and for three years

thereafter.

(d) The following records may be

removed from a driver’s qualification

file three years after the date of

execution:
33278 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

(1) The response of each State agency

to the annual driver record inquiry

required by § 391.25(a);

(2) The note relating to the annual

review of the driver’s driving record as

required by § 391.25(c)(2);

(3) The list or certificate relating to

violations of motor vehicle laws and

ordinances required by § 391.27;

(4) The medical examiner’s certificate

of the driver’s physical qualification to

drive a commercial motor vehicle or the

photographic copy of the certificate as

required by § 391.43(f); and

(5) The letter issued under § 391.49

granting a waiver of a physical

disqualification.

(Approved by the Office of Management and

Budget under control number 2125–0065)

16. Section 391.61 is revised to read

as follows:

§ 391.61 Drivers who were regularly

employed before January 1, 1971.

The provisions of § 391.21 (relating to

applications for employment), § 391.23

(relating to investigations and inquiries),

and § 391.33 (relating to road tests) do

not apply to a driver who has been a

single-employer driver (as defined in

§ 390.5 of this subchapter) of a motor

carrier for a continuous period which

began before January 1, 1971, as long as

he/she continues to be a singleemployer driver of that motor carrier.

17. Section 391.63 is revised to read

as follows:

§ 391.63 Multiple-employer drivers.

(a) If a motor carrier employs a person

as a multiple-employer driver (as

defined in § 390.5 of this subchapter),

the motor carrier shall comply with all

requirements of this part, except that the

motor carrier need not—

(1) Require the person to furnish an

application for employment in

accordance with § 391.21;

(2) Make the investigations and

inquiries specified in § 391.23 with

respect to that person;

(3) Perform the annual driving record

inquiry required by § 391.25(a);

(4) Perform the annual review of the

person’s driving record required by

§ 391.25(b); or

(5) Require the person to furnish a

record of violations or a certificate in

accordance with § 391.27.

(b) Before a motor carrier permits a

multiple-employer driver to drive a

commercial motor vehicle, the motor

carrier must obtain his/her name, his/

her social security number, and the

identification number, type and issuing

State of his/her commercial motor

vehicle operator’s license. The motor

carrier must maintain this information

for three years after employment of the

multiple-employer driver ceases.

(Approved by the Office of Management and

Budget under control number 2125–0081)

18. Section 391.65 is amended by

revising paragraphs (b) and (c) to read

as follows:

§ 391.65 Drivers furnished by other motor

carriers.

* * * * *

(b) A motor carrier that obtains a

certificate in accordance with paragraph

(a)(2) of this section shall:

(1) Contact the motor carrier which

certified the driver’s qualifications

under this section to verify the validity

of the certificate. This contact may be

made in person, by telephone, or by

letter.

(2) Retain a copy of that certificate in

its files for three years.

(c) A motor carrier which certifies a

driver’s qualifications under this section

shall be responsible for the accuracy of

the certificate. The certificate is no

longer valid if the driver leaves the

employment of the motor carrier which

issued the certificate or is no longer

qualified under the rules in this part.

19. Section 391.67 is revised to read

as follows:

§ 391.67 Farm vehicle drivers of

articulated commercial motor vehicles.

The following rules in this part do not

apply to a farm vehicle driver (as

defined in § 390.5 of this subchapter)

who is 18 years of age or older and who

drives an articulated commercial motor

vehicle:

(a) Section 391.11(b)(1), (b)(6) and

(b)(8) (relating to general qualifications

of drivers);

(b) Subpart C (relating to disclosure

of, investigation into, and inquiries

about the background, character, and

driving record of drivers);

(c) Subpart D (relating to road tests);

and

(d) Subpart F (relating to maintenance

of files and records).

20. Section 391.68 is revised to read

as follows:

§ 391.68 Private motor carrier of

passengers (nonbusiness).

The following rules in this part do not

apply to a private motor carrier of

passengers (nonbusiness) and its

drivers:

(a) Section 391.11(b)(1), (b)(6) and

(b)(8) (relating to general qualifications

of drivers);

(b) Subpart C (relating to disclosure

of, investigation into, and inquiries

about the background, character, and

driving record of, drivers);

(c) So much of §§ 391.41 and 391.45

as require a driver to be medically

examined and to have a medical

examiner’s certificate on his/her person;

and

(d) Subpart F (relating to maintenance

of files and records).

§ 391.69 [Removed]

21. Section 391.69, Drivers operating

in Hawaii, is removed.

§ 391.71 [Removed and Reserved]

22. Section 391.71 is removed and

reserved.

§ 391.73 [Redesignated as § 391.69]

23. Section 391.73 is redesignated as

new § 391.69 and revised to read as

follows:

§ 391.69 Private motor carrier of

passengers (business).

The provisions of § 391.21 (relating to

applications for employment), § 391.23

(relating to investigations and inquiries),

and § 391.31 (relating to road tests) do

not apply to a driver who was a singleemployer driver (as defined in § 390.5 of

this subchapter) of a private motor

carrier of passengers (business) as of

July 1, 1994, so long as the driver

continues to be a single-employer driver

of that motor carrier.

PART 392—DRIVING OF COMMERCIAL

MOTOR VEHICLES

24. The authority citation for part 392

continues to read as follows:

Authority: 49 U.S.C. 31136 and 31502; and

49 CFR 1.48.

§ 392.9 [Amended]

25. Section 392.9(c) is redesignated as

§ 392.62 in subpart G and revised to

read as follows:

§ 392.62 Safe operation, buses.

No person shall drive a bus and a

motor carrier shall not require or permit

a person to drive a bus unless—

(a) All standees on the bus are

rearward of the standee line or other

means prescribed in § 393.90 of this

subchapter;

(b) All aisle seats in the bus conform

to the requirements of § 393.91 of this

subchapter; and

(c) Baggage or freight on the bus is

stowed and secured in a manner which

assures—

(1) Unrestricted freedom of movement

to the driver and his proper operation of

the bus;

(2) Unobstructed access to all exits by

any occupant of the bus; and

(3) Protection of occupants of the bus

against injury resulting from the falling

or displacement of articles transported

in the bus.
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations 33279

§ 392.9b [Removed]

26. Section 392.9b is removed.

§ 392.13 [Removed and Reserved]

27. Section 392.13 is removed and

reserved.

§ 392.15 [Removed and Reserved]

28. Section 392.15 is removed and

reserved.

§ 392.20 [Removed and Reserved]

29. Section 392.20 is removed and

reserved.

30. Section 392.22 is amended by

revising paragraph (b)(1) to read as

follows:

§ 392.22 Emergency signals; stopped

commercial motor vehicles.

* * * * *

(b) Placement of warning devices—

(1) General rule. Except as provided

in paragraph (b)(2) of this section,

whenever a commercial motor vehicle is

stopped upon the traveled portion or the

shoulder of a highway for any cause

other than necessary traffic stops, the

driver shall, as soon as possible, but in

any event within 10 minutes, place the

warning devices required by § 393.95 of

this subchapter, in the following

manner:

(i) One on the traffic side of and 4

paces (approximately 3 meters or 10

feet) from the stopped commercial

motor vehicle in the direction of

approaching traffic;

(ii) One at 40 paces (approximately 30

meters or 100 feet) from the stopped

commercial motor vehicle in the center

of the traffic lane or shoulder occupied

by the commercial motor vehicle and in

the direction of approaching traffic; and

(iii) One at 40 paces (approximately

30 meters or 100 feet) from the stopped

commercial motor vehicle in the center

of the traffic lane or shoulder occupied

by the commercial motor vehicle and in

the direction away from approaching

traffic.

* * * * *

31. Section 392.25 is amended by

revising the section heading to read as

follows:

§ 392.25 Flame producing devices.

* * * * *

§ 392.42 [Removed]

32. Section 392.42 is removed.

33. Section 392.51 is revised to read

as follows:

§ 392.51 Reserve fuel; materials of trade.

Small amounts of fuel for the

operation or maintenance of a

commercial motor vehicle (including its

auxiliary equipment) may be designated

as materials of trade (see 49 CFR 171.8).

(a) The aggregate gross weight of all

materials of trade on a motor vehicle

may not exceed 200 kg (440 pounds).

(b) Packaging for gasoline must be

made of metal or plastic and conform to

requirements of 49 CFR Parts 171, 172,

173, and 178 or requirements of the

Occupational Safety and Health

Administration contained in 29 CFR

1910.106.

(c) For Packing Group II (including

gasoline), Packing Group III (including

aviation fuel and fuel oil), or ORM–D,

the material is limited to 30 kg (66

pounds) or 30 L (8 gallons).

(d) For diesel fuel, the capacity of the

package is limited to 450 L (119

gallons).

(e) A Division 2.1 material in a

cylinder is limited to a gross weight of

100 kg (220 pounds). (A Division 2.1

material is a flammable gas, including

liquefied petroleum gas, butane,

propane, liquefied natural gas, and

methane).

§ 392.52 [Removed and Reserved]

34. Section 392.52 is removed and

reserved.

§ 392.68 [Removed and Reserved]

35. Section 392.68 is removed and

reserved.

PART 395—HOURS OF SERVICE OF

DRIVERS

36. The authority citation for part 395

continues to read as follows:

Authority: 49 U.S.C. 31133, 31136, and

31502; sec. 345, Pub. L. 104–59, 109 Stat.

568, 613; and 49 CFR 1.48.

§ 395.1 [Amended]

37. Section 395.1 is amended by

removing paragraph (g) and

redesignating paragraphs (h) through (o)

as paragraphs (g) through (n),

respectively.

38. Section 395.2 is amended by

revising the definition of On duty time

to read as follows:

§ 395.2 Definitions.

* * * * *

On duty time means all time from the

time a driver begins to work or is

required to be in readiness to work until

the time the driver is relieved from work

and all responsibility for performing

work. On duty time shall include:

(1) All time at a plant, terminal,

facility, or other property of a motor

carrier or shipper, or on any public

property, waiting to be dispatched,

unless the driver has been relieved from

duty by the motor carrier;

(2) All time inspecting, servicing, or

conditioning any commercial motor

vehicle at any time;

(3) All driving time as defined in the

term driving time;

(4) All time, other than driving time,

in or upon any commercial motor

vehicle except time spent resting in a

sleeper berth;

(5) All time loading or unloading a

commercial motor vehicle, supervising,

or assisting in the loading or unloading,

attending a commercial motor vehicle

being loaded or unloaded, remaining in

readiness to operate the commercial

motor vehicle, or in giving or receiving

receipts for shipments loaded or

unloaded;

(6) All time repairing, obtaining

assistance, or remaining in attendance

upon a disabled commercial motor

vehicle;

(7) All time spent providing a breath

sample or urine specimen, including

travel time to and from the collection

site, in order to comply with the

random, reasonable suspicion, postaccident, or follow-up testing required

by part 382 of this subchapter when

directed by a motor carrier;

(8) Performing any other work in the

capacity, employ, or service of a motor

carrier; and

(9) Performing any compensated work

for a person who is not a motor carrier.

* * * * *

39. Section 395.8 is amended by

revising paragraph (k)(1) to read as

follows:

§ 395.8 Driver’s record of duty status.

* * * * *

(k) Retention of driver’s record of duty

status. (1) Each motor carrier shall

maintain records of duty status and all

supporting documents for each driver it

employs for a period of six months from

the date of receipt.

* * * * *

PART 396—INSPECTION, REPAIR,

AND MAINTENANCE

40. The authority citation for part 396

continues to read as follows:

Authority: 49 U.S.C. 31133, 31136, and

31502; 49 CFR 1.48.

41. Section 396.11 is amended by

revising paragraphs (b), (c), and (d) to

read as follows:

§ 396.11 Driver vehicle inspection

report(s).

* * * * *

(b) Report content. The report shall

identify the vehicle and list any defect

or deficiency discovered by or reported

to the driver which would affect the

safety of operation of the vehicle or

result in its mechanical breakdown. If

no defect or deficiency is discovered by

or reported to the driver, the report shall
33280 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 /Rules and Regulations

so indicate. In all instances, the driver

shall sign the report. On two-driver

operations, only one driver needs to

sign the driver vehicle inspection

report, provided both drivers agree as to

the defects or deficiencies identified. If

a driver operates more than one vehicle

during the day, a report shall be

prepared for each vehicle operated.

(c) Corrective action. Prior to

requiring or permitting a driver to

operate a vehicle, every motor carrier or

its agent shall repair any defect or

deficiency listed on the driver vehicle

inspection report which would be likely

to affect the safety of operation of the

vehicle.

(1) Every motor carrier or its agent

shall certify on the original driver

vehicle inspection report which lists

any defect or deficiency that the defect

or deficiency has been repaired or that

repair is unnecessary before the vehicle

is operated again.

(2) Every motor carrier shall maintain

the original driver vehicle inspection

report, the certification of repairs, and

the certification of the driver’s review

for three months from the date the

written report was prepared.

(d) Exceptions. The rules in this

section shall not apply to a private

motor carrier of passengers

(nonbusiness), a driveaway-towaway

operation, or any motor carrier

operating only one commercial motor

vehicle.

42. Section 396.13 is amended by

revising paragraph (b) to read as follows:

§ 396.13 Driver inspection.

* * * * *

(b) Review the last driver vehicle

inspection report; and

* * * * *

PART 397—TRANSPORTATION OF

HAZARDOUS MATERIALS; DRIVING

AND PARKING RULES

43. The authority citation for part 397

continues to read as follows:

Authority: 49 U.S.C. 322; 49 CFR 1.48.

Subpart A also issued under 49 U.S.C. 31136,

31502. Subparts C, D, and E also issued

under 49 U.S.C. 5112, 5125.

44. Section 397.19 is amended by

revising paragraph (b) to read as follows:

§ 397.19 Instructions and documents.

* * * * *

(b) A driver who receives documents

in accordance with paragraph (a) of this

section must sign a receipt for them.

The motor carrier shall maintain the

receipt for a period of one year from the

date of signature.

* * * * *

[FR Doc. 98–15880 Filed 6–17–98; 8:45 am]

BILLING CODE 4910–22–P