[Federal Register Volume 63, Number 117 (Thursday, June 18, 1998)]
[Rules and Regulations]
[Pages 33254-33280]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-15880]


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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.

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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

[[Page 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, Owner-Operator 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 
Sec. 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 Sec. 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, Sec. 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 non-
educational destinations, without any insurance coverage for the 
passengers or the public.

[[Page 33256]]

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

[[Page 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 non-governmental 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 four-wheel 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 Sec. 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 Secs. 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

[[Page 33258]]

carriers subject to these regulations are well aware of the reference, 
and a cross-reference 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 
Sec. 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:

    Sec. 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 Sec. 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 
``multiple-employer 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 
Secs. 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 
Sec. 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, Secs. 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. Sec. 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

[[Page 33259]]

agent or authorized representative of the FHWA. Because the definition 
is revised to accompany a new Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Secs. 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 Secs. 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, Sec. 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 Sec. 383.5 and the driver application procedures for transfer of 
a CDL in Sec. 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 Secs. 391.11(b)(4) and (b)(5) are redesignated as 
Secs. 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, Secs. 391.31 and 391.33. Therefore, this 
section, cross-referencing 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

[[Page 33260]]

Sec. 391.31 and to revise Sec. 391.33. The background of the proposed 
change, the summary of docket comments, and the FHWA's response are 
detailed under the headings for Secs. 391.31 and 391.33. This section 
is retained and redesignated as Sec. 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 Sec. 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 
Sec. 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 Sec. 391.21.
FHWA response
    A driver's application for employment is not a ``qualification'' 
per se. The revised heading of Sec. 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 Sec. 391.21, 
Application for employment. As stated in the preamble to the NPRM, the 
action of removing Sec. 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 Sec. 391.21.
    Accordingly, Sec. 391.11(b)(11) is removed as proposed in the NPRM.

Section 391.13, Responsibilities of Drivers

    The FHWA proposed to delete Secs. 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 Sec. 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 Sec. 392.42 as Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 controlled-substance 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 Secs. 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.

[[Page 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 
controlled-substance 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 Sec. 391.23, 
Investigation and inquiries. DAC recommended changing the proposed 
revision explicitly to recognize the role of third-party information 
services:

    Sec. 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 Sec. 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 Sec. 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 Sec. 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 
Sec. 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

[[Page 33262]]

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 driver-provided information and 
information obtained from State MVRs. This would be especially 
problematic for non-CDL-licensed 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 State-based 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 cross-verification 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 State-administered 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

[[Page 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 
Sec. 391.31.
    As part of its comment to the proposed deletion of Secs. 391.31 and 
391.33 (see above), the OOIDA requested removal of Sec. 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 Sec. 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, Sec. 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 Sec. 391.33(c).
    The provision in Sec. 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 Sec. 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 Sec. 391.31(c).
    The FHWA will replace the words ``valid operator's license'' in 
Sec. 391.33(a)(1) with the phrase ``valid Commercial Driver's License, 
as defined in Sec. 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 
Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 33264]]

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, Sec. 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 Sec. 391.27, the action will remain 
in the list of exemptions under Sec. 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 Sec. 391.11(b)(8), (b)(10), and (b)(11) 
with a reference to Sec. 391.21 only. The FHWA also proposed to delete 
Sec. 391.67(c) to conform to the proposed deletion of part 391, subpart 
D.
    Because the FHWA has decided to retain Sec. 391.11(b)(8) and 
subpart D, the reference will refer to redesignated Secs. 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 
Sec. 391.11(b)(8), (b)(10), and (b)(11) with a reference to Sec. 391.21 
only. Because the FHWA has determined that Sec. 391.11(b)(8) will be 
retained and Sec. 391.11(b)(10) and (b)(11) will be redesignated, the 
section cross-references the redesignated Secs. 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 
Sec. 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 Sec. 391.69 was proposed to be removed and Sec. 391.71 was 
proposed to be removed and reserved, the FHWA proposed to redesignate 
this Sec. 391.73 as Sec. 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.

[[Page 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 Sec. 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 
Sec. 392.7 be relocated to Sec. 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 Sec. 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 Sec. 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 Sec. 392.9(c)(1) as Sec. 392.62, 
deleting Sec. 392.9(c)(2), and redesignating Sec. 392.9(c)(3) as 
Sec. 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 Sec. 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 
Sec. 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 Sec. 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 Sec. 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

[[Page 33266]]

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 near-misses 
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 Sec. 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 Sec. 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

[[Page 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 Sec. 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 Sec. 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 
Sec. 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 
Sec. 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 
Sec. 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 non-
uniformity of various State requirements and recommended that the FHWA 
issue guidelines to the States to minimize conflicts.
    The ATA supported removing Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Secs. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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 Sec. 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

[[Page 33268]]

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 Sec. 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 
flame-producing 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 
Sec. 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 Sec. 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 Sec. 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, Sec. 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 Sec. 392.42, to Sec. 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 
Sec. 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 Secs. 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

[[Page 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 one-
time 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 Sec. 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 Sec. 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 Sec. 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.

[[Page 33270]]

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, Sec. 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 Sec. 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 Sec. 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 
Secs. 395.1(l) through 395.1(o) as Secs. 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 Secs. 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 
Secs. 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 Sec. 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 Sec. 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-of-Service 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 Sec. 396.11. CSS

[[Page 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 Secs. 396.11 and 396.13 be combined into a 
single requirement. The requirements for pre-and 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-
of-service 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 Sec. 396.11(c)(3) and revising Sec. 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 phase-in 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.

[[Page 33272]]

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 Sec. 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 (Sec. 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 zero-
base 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-of-service 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 Secs. 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 
Zero-Base Regulatory Reform initiative.

Section 393.70, Coupling Devices and Towing Methods, Except for 
Driveaway-Towaway 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 Secs. 393.70 and 393.71.

Section 395.1(e), 100 Air-Mile Radius Driver

    This provision concerns the exemption from the requirements of 
Sec. 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 Sec. 395.8 exemption 
to three of the five requirements in the current regulation: (1) the 
driver's on-duty 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 on-duty. The LTL also raised the 
possibility of increasing the consecutive hours of the work shift in 
Sec. 395.1(e)(2), but it did not specify a figure or range.

[[Page 33273]]

    The LTL provided historical and operational perspectives to support 
its proposal. In 1980, the 100 air-mile exemption was increased from 50 
air-miles. 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 larger-capacity 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 
air-mile 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 
Sec. 395.8. The FHWA will address the issue of distance- and time-based 
exemptions to Sec. 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 out-of-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         Renamed: Multiple-employer  
 driver..                                    driver.                    
Interstate commerce.......................  Revised.                    
Principal place of business...............  Revised.                    
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 Sec.  391.69
                                             and revised.               
392.9(c)..................................  Redesignated as Sec.  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 Sec.        
                                             391.15(b)(2) and revised.  
392.51....................................  Revised.                    
392.52....................................  Removed and reserved.       

[[Page 33274]]

                                                                        
392.68....................................  Removed and reserved.       
395.1(g)..................................  Removed.                    
395.1(h)..................................  Redesignated as Sec.        
                                             395.1(g).                  
395.1(i)..................................  Redesignated as Sec.        
                                             395.1(h).                  
395.1(j)..................................  Redesignated as Sec.        
                                             395.1(i).                  
395.1(k)..................................  Redesignated as Sec.        
                                             395.1(j).                  
395.1(l)..................................  Redesignated as Sec.        
                                             395.1(k).                  
395.1(m)..................................  Redesignated as Sec.        
                                             395.1(l).                  
395.1(n)..................................  Redesignated as Sec.        
                                             395.1(m).                  
395.1(o)..................................  Redesignated as Sec.        
                                             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 Sec. 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

[[Page 33275]]

certificate. This requirement is included in the following information 
collection required under Sec. 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 Sec. 387.5, the definitions For-hire carriage and Motor 
carrier are revised to read as follows:


Sec. 387.5  Definitions.

* * * * *
    For-hire carriage means 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:


Sec. 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 Sec. 387.29, the definitions of the terms Motor common 
carrier and Motor contract carrier are removed and the definitions of 
For-hire carriage and Motor carrier are revised to read as follows:


Sec. 387.29  Definitions.

* * * * *

[[Page 33276]]

    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:


Sec. 390.3  General applicability.

* * * * *
    (f) * * *
    (2) Transportation performed by the Federal government, a State, or 
any political subdivision of a State, or an agency established under a 
compact between States that has been approved by the Congress of the 
United States;
* * * * *
    7. In Sec. 390.5, the definition of the term Accident is revised; 
the 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:


Sec. 390.5  Definitions.

* * * * *
    Accident means--
    (1) Except as provided in paragraph (2) of this definition, an 
occurrence involving a commercial motor vehicle operating on a 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 four-
wheel 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:


Sec. 390.29  Location of records or documents.

    (a) A motor carrier with multiple offices or terminals may maintain 
the records and documents required by this subchapter at 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:


Sec. 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;

[[Page 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 
Sec. 391.27;
    (7) Is not disqualified to drive a commercial motor vehicle under 
the rules in Sec. 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 
Sec. 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 Sec. 391.33.
    11. Section 391.13 is added to read as follows:


Sec. 391.13.  Responsibilities of drivers.

    In order to comply with the requirements of Sec. 392.9(a) and 
Sec. 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:


Sec. 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:


Sec. 391.25  Annual inquiry and review of driving record.

    (a) Except as provided in subpart G of this part, each motor 
carrier shall, at least once every 12 months, make an inquiry into the 
driving record of each driver it employs, covering at least the 
preceding 12 months, to the appropriate agency of every State in which 
the driver held a commercial motor vehicle operator's license or permit 
during the time period.
    (b) Except as provided in subpart G of this part, each motor 
carrier shall, at least once every 12 months, review the driving record 
of each driver it employs to determine whether that driver meets 
minimum requirements for safe driving or is disqualified to drive a 
commercial motor vehicle pursuant to Sec. 391.15.
    (1) The motor carrier must consider any evidence that the driver 
has violated any applicable Federal Motor Carrier Safety Regulations 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:


Sec. 391.33  Equivalent of road test.

    (a) * * *
    (1) A valid Commercial Driver's License as defined in Sec. 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:


Sec. 391.51  General requirements for driver qualification files.

    (a) Each motor carrier shall maintain a driver qualification file 
for each driver it employs. A driver's qualification file may be 
combined with his/her personnel file.
    (b) The qualification file for a driver must include:
    (1) The driver's application for employment completed in accordance 
with Sec. 391.21;
    (2) A written record with respect to each past employer who was 
contacted and a copy of the response by each State agency, pursuant to 
Sec. 391.23 involving investigation and inquiries;
    (3) The certificate of driver's road test issued to the driver 
pursuant to Sec. 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 Sec. 391.33;
    (4) The response of each State agency to the annual driver record 
inquiry required by Sec. 391.25(a);
    (5) A note relating to the annual review of the driver's driving 
record as required by Sec. 391.25(c)(2);
    (6) A list or certificate relating to violations of motor vehicle 
laws and ordinances required by Sec. 391.27;
    (7) The medical examiner's certificate of his/her physical 
qualification to drive a commercial motor vehicle as required by 
Sec. 391.43(f) or a legible photographic copy of the certificate; and
    (8) A letter from the Regional Director of Motor Carriers granting 
a waiver of a physical disqualification, if a waiver was issued under 
Sec. 391.49.
    (c) Except as provided in paragraph (d) of this section, each 
driver's qualification file shall be retained for as long as a driver 
is employed by that motor carrier and for three years thereafter.
    (d) The following records may be removed from a driver's 
qualification file three years after the date of execution:

[[Page 33278]]

    (1) The response of each State agency to the annual driver record 
inquiry required by Sec. 391.25(a);
    (2) The note relating to the annual review of the driver's driving 
record as required by Sec. 391.25(c)(2);
    (3) The list or certificate relating to violations of motor vehicle 
laws and ordinances required by Sec. 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 Sec. 391.43(f); and
    (5) The letter issued under Sec. 391.49 granting a waiver of a 
physical disqualification.

(Approved by the Office of Management and Budget under control 
number 2125-0065)

    16. Section 391.61 is revised to read as follows:


Sec. 391.61  Drivers who were regularly employed before January 1, 
1971.

    The provisions of Sec. 391.21 (relating to applications for 
employment), Sec. 391.23 (relating to investigations and inquiries), 
and Sec. 391.33 (relating to road tests) do not apply to a driver who 
has been a single-employer driver (as defined in Sec. 390.5 of this 
subchapter) of a motor carrier for a continuous period which began 
before January 1, 1971, as long as he/she continues to be a single-
employer driver of that motor carrier.
    17. Section 391.63 is revised to read as follows:


Sec. 391.63  Multiple-employer drivers.

    (a) If a motor carrier employs a person as a multiple-employer 
driver (as defined in Sec. 390.5 of this subchapter), the motor carrier 
shall comply with all requirements of this part, except that the motor 
carrier need not--
    (1) Require the person to furnish an application for employment in 
accordance with Sec. 391.21;
    (2) Make the investigations and inquiries specified in Sec. 391.23 
with respect to that person;
    (3) Perform the annual driving record inquiry required by 
Sec. 391.25(a);
    (4) Perform the annual review of the person's driving record 
required by Sec. 391.25(b); or
    (5) Require the person to furnish a record of violations or a 
certificate in accordance with Sec. 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:


Sec. 391.65  Drivers furnished by other motor carriers.

* * * * *
    (b) A motor carrier that obtains a certificate in accordance with 
paragraph (a)(2) of this section shall:
    (1) Contact the motor carrier which certified the driver's 
qualifications under this section to verify the validity of the 
certificate. This contact may be made in person, by telephone, or by 
letter.
    (2) Retain a copy of that certificate in its files for 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:


Sec. 391.67  Farm vehicle drivers of articulated commercial motor 
vehicles.

    The following rules in this part do not apply to a farm vehicle 
driver (as defined in Sec. 390.5 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:


Sec. 391.68  Private motor carrier of passengers (nonbusiness).

    The following rules in this part do not apply to a private motor 
carrier of passengers (nonbusiness) and its drivers:
    (a) Section 391.11(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 Secs. 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).


Sec. 391.69  [Removed]

    21. Section 391.69, Drivers operating in Hawaii, is removed.


Sec. 391.71  [Removed and Reserved]

    22. Section 391.71 is removed and reserved.


Sec. 391.73  [Redesignated as Sec. 391.69]

    23. Section 391.73 is redesignated as new Sec. 391.69 and revised 
to read as follows:


Sec. 391.69  Private motor carrier of passengers (business).

    The provisions of Sec. 391.21 (relating to applications for 
employment), Sec. 391.23 (relating to investigations and inquiries), 
and Sec. 391.31 (relating to road tests) do not apply to a driver who 
was a single-employer driver (as defined in Sec. 390.5 of this 
subchapter) of a private motor carrier of passengers (business) as of 
July 1, 1994, so long as the driver continues to be a single-employer 
driver of that motor carrier.

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.


Sec. 392.9  [Amended]

    25. Section 392.9(c) is redesignated as Sec. 392.62 in subpart G 
and revised to read as follows:


Sec. 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 Sec. 393.90 of this subchapter;
    (b) All aisle seats in the bus conform to the requirements of 
Sec. 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.

[[Page 33279]]

Sec. 392.9b  [Removed]

    26. Section 392.9b is removed.


Sec. 392.13  [Removed and Reserved]

    27. Section 392.13 is removed and reserved.


Sec. 392.15  [Removed and Reserved]

    28. Section 392.15 is removed and reserved.


Sec. 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:


Sec. 392.22  Emergency signals; stopped commercial motor vehicles.

* * * * *
    (b) Placement of warning devices--
    (1) General rule. Except as provided in paragraph (b)(2) of this 
section, whenever a commercial motor vehicle is stopped upon the 
traveled portion or the shoulder of a highway for any cause other than 
necessary traffic stops, the driver shall, as soon as possible, but in 
any event within 10 minutes, place the warning devices required by 
Sec. 393.95 of this subchapter, in the following manner:
    (i) One on the traffic side of and 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:


Sec. 392.25  Flame producing devices.

* * * * *


Sec. 392.42  [Removed]

    32. Section 392.42 is removed.
    33. Section 392.51 is revised to read as follows:


Sec. 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).


Sec. 392.52  [Removed and Reserved]

    34. Section 392.52 is removed and reserved.


Sec. 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.


Sec. 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:


Sec. 395.2  Definitions.

* * * * *
    On duty time means all time from the time a driver begins to work 
or is required to be in readiness to work until the time 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, post-accident, 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:


Sec. 395.8  Driver's record of duty status.

* * * * *
    (k) Retention of driver's record of duty status. (1) Each motor 
carrier shall maintain records of duty status and all supporting 
documents for each driver it employs for a period of six months from 
the date of receipt.
* * * * *

PART 396--INSPECTION, REPAIR, AND MAINTENANCE

    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:


Sec. 396.11  Driver vehicle inspection report(s).

* * * * *
    (b) Report content. The report shall identify the vehicle and list 
any defect or deficiency discovered by or reported to the driver which 
would affect the safety of operation of the vehicle or result in its 
mechanical breakdown. If no defect or deficiency is discovered by or 
reported to the driver, the report shall

[[Page 33280]]

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:


Sec. 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:


Sec. 397.19  Instructions and documents.

* * * * *
    (b) A driver who receives documents in accordance with paragraph 
(a) of this section must sign a receipt for them. The motor carrier 
shall maintain the receipt for a period of one year from the date of 
signature.
* * * * *
[FR Doc. 98-15880 Filed 6-17-98; 8:45 am]
BILLING CODE 4910-22-P