[Federal Register Volume 63, Number 138 (Monday, July 20, 1998)]
[Proposed Rules]
[Pages 38791-38795]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19153]


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DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 395 and 396

[FHWA Docket No. FHWA-98-3414]
RIN 2125-AE35


Out-of-Service Criteria

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Advance notice of proposed rulemaking (ANPRM); request for 
comments.

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SUMMARY: The FHWA seeks public comment concerning use of the ``North 
American Uniform Out-of-Service Criteria'' (OOS Criteria). During 
roadside inspections, Federal, State and local safety inspectors use 
the OOS Criteria as a guide in determining whether to place commercial 
motor vehicles (CMVs) or drivers of CMVs out-of-service. The OOS 
Criteria is a list of those violations which are so unsafe that they 
must be corrected before operations can resume. Correction of other 
less severe violations can be deferred to a more convenient time and 
place. The FHWA is seeking public comment on the future scope and 
effect of the OOS Criteria, which are not part of the Federal Motor 
Carrier Safety Regulations (FMCSRs). The agency is also seeking comment 
on the need to formalize these guidelines.

DATES: Comments should be received on or before September 18, 1998.

ADDRESSES: Signed, written comments should refer to the docket number 
appearing at the top of this document and must be submitted to the 
Docket Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., 
Washington, DC 20590-0001. All comments received will be available for 
examination at the above address between 10 a.m. and 5 p.m., e.t., 
Monday through Friday, except Federal holidays. Those desiring 
notification of receipt of comments must include a self-addressed, 
stamped envelope or postcard.


[[Page 38792]]


FOR FURTHER INFORMATION CONTACT: Mr. Robert F. Schultz, Jr., Office of 
Motor Carrier Research and Standards (HCS-10), (202) 366-4009, or Mr. 
Charles Medalen (HCC-20), Office of the Chief Counsel, (202) 366-1354, 
Federal Highway Administration, Department of Transportation, 400 
Seventh Street, SW., Washington, DC 20590. Office hours are from 7:45 
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal 
holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

    Internet users can access all comments received by the U.S. DOT 
Dockets, Room PL-401, by using the universal resource locator 
(URL):http://dms.dot.gov. It is available 24 hours each day, 365 days 
each year. Please follow the instructions online for more information 
and help.
    An electronic copy of this document may be downloaded using a modem 
and suitable communications software from the Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Federal Register's home page at: http://
www.nara.gov/fedreg and the Government Printing Office's database at: 
http://www.access.gpo.gov/su__docs.

What is the ``North American Uniform Out-of-Service Criteria''?

    The OOS Criteria is a reference guide developed and maintained by 
the Commercial Vehicle Safety Alliance (CVSA) to assist enforcement 
personnel in deciding whether to allow a CMV or driver, found in 
violation of law, to continue in commerce. The CVSA is an association 
of State, local, provincial and Federal officials responsible for the 
administration and enforcement of motor carrier safety laws and 
regulations in the United States, Canada, and Mexico. The CVSA provides 
a mechanism for the development of consensus upon issues of common 
concern. The OOS Criteria is a detailed list of conditions which the 
CVSA membership has agreed are sufficiently hazardous to justify 
restricting further operation by a driver or a CMV. Each year the CVSA 
reviews the OOS Criteria, and makes necessary changes.

How are the OOS Criteria Used?

    The majority of the safety violations found during inspections at 
the roadside relate to the condition of the CMV. Some of these 
violations can be corrected at the roadside; for example, a driver can 
repair a turn signal which is not functioning. Others must be corrected 
at a repair facility. If a particular safety violation presents no 
immediate or undue threat to public safety, it would be an unnecessary 
interruption in the flow of commerce and perhaps even cause a traffic 
safety problem to require the motor carrier to undertake corrective 
action on site. In such cases, the assessment of a warning, fine, or 
other penalty is sufficient; the repairs necessary to prevent further 
deterioration or ultimately correct the condition may safely be 
deferred to another time and place.
    In this sense, the OOS Criteria are usually less stringent than the 
FMCSRs. For example, a CMV with a single headlamp incapable of 
producing a low beam during night-time driving does not comply with the 
FMCSRs (49 CFR 393.9). The OOS Criteria, however, are not operable 
until both headlamps are incapable of producing a low beam. In this 
example, the inspector would cite the motor carrier for the violation 
of the FMCSRs, but permit the CMV to proceed so that repairs to the 
headlamp can be made at a more convenient time and place. In cases such 
as this, the OOS Criteria serve as enforcement tolerances because the 
violation of the FMCSRs is allowed to continue. In other instances, 
provisions of the OOS Criteria correspond precisely with the FMCSRs. 
For example, a CMV with only one rear turn signal working properly does 
not comply with the FMCSRs (49 CFR 393.11). The OOS Criteria also 
provides that the CMV should not be moved until both signals are in 
working order.
    State inspectors with general police powers have authority under 
State law to stop and seize summarily. All States participating in the 
Motor Carrier Safety Assistance Program (MCSAP) have agreed that their 
inspectors will use the OOS Criteria when exercising this power. If an 
inspector, during an inspection activity, observes inherently dangerous 
conditions which are identified in the OOS Criteria, the inspector may 
issue an out-of-service order. Motor carriers and their drivers are 
able to anticipate reasonably uniform treatment of violations in all 
jurisdictions throughout this country because of the general acceptance 
of the OOS Criteria.
    The majority of drivers who are placed out-of-service are so 
treated because they are driving in violation of the maximum hours-of-
service rules under 49 CFR part 395. Such violations are usually 
corrected by the driver being off-duty at least eight consecutive 
hours.
    An FHWA inspector at roadside may order a motor carrier's driver or 
CMV to cease operation.1 When conducting roadside vehicle 
and driver inspections, the FHWA uses the OOS Criteria in deciding 
whether to allow particular motor carriers, CMVs, or drivers to proceed 
in violation of the FMCSRs.
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    \1\ See 49 CFR 395.13(a), and 396.9(c).
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How has the OOS Criteria Evolved?

    Out-of-service criteria for drivers and CMVs have been in existence 
over forty years. Prior to its absorption into the United States 
Department of Transportation in 1967, the Bureau of Motor Carrier 
Safety (BMCS), a part of the former Interstate Commerce Commission, 
developed the first out-of-service criteria in carrying out its 
inspection function. Those criteria continued in use by the FHWA safety 
investigators thereafter.
    In 1980, the FHWA conducted a pilot program to assess the potential 
of States to enforce CMV safety rules at the same time they enforce the 
restrictions on the size and weight of CMVs. Four States participated 
and generated results which were a factor in the enactment of 
legislation in 1982 authorizing the Motor Carrier Safety Assistance 
Program. That program, which provides funding to the States in their 
efforts to enforce motor carrier safety regulations, has been quite 
successful.
    The States were brought together on another front by their search 
for a solution to the problems created by the patchwork of diverse 
State laws and regulations governing motor carrier safety. The States 
came to realize that a larger number of motor carriers could comply 
with safety laws and regulations if greater uniformity in enforcement 
were achieved. Several western States and Canadian Provinces formed the 
CVSA to reach agreement on issues such as inspections and out-of-
service criteria. With the subsequent encouragement and support of the 
FHWA through the MCSAP, the CVSA expanded dramatically. Soon all 50 
States and the District of Columbia became partners with the FHWA by 
adopting and enforcing, with minor variances, the FMCSRs and the 
Hazardous Materials Regulations (HMRs) of the Research and Special 
Programs Administration, and by using uniform inspection criteria.
    In 1988, the FHWA published a comparison of the OOS Criteria and 
the FHWA's inspection criteria in 49 CFR Ch. III, subchapter B, 
appendix G. The fact that this comparison is so outdated and of little 
use today demonstrates one of the issues discussed below in the options 
for further regulatory action.

[[Page 38793]]

    The Motor Carrier Act of 1991 (the Act) prescribed certain 
penalties for motor carriers or drivers found to have violated out-of-
service orders (49 U.S.C. 31310(g)(2)). The Act made the adoption of 
such penalties by the States, and a program of random reinspection of 
vehicles placed out-of-service, a condition for receipt of Federal 
safety funding under the MCSAP. The Congress also made a State's 
adoption of the penalties for violation of out-of-service orders a 
condition of continued receipt of the State's full allocation of 
highway construction funds (49 U.S.C. 31311). The FHWA published 
implementing regulations on May 18, 1994 (59 FR 26022) (codified in 
part at 49 CFR 383.5 and 390.5, definitions of ``out-of-service 
criteria'').

What is the FHWA's Role in the Development of the OOS Criteria?

    The FHWA is a non-voting member of the CVSA, as are representatives 
of numerous trade organizations, such as the American Trucking 
Associations (ATA), the National Private Truck Council (NPTC), the 
Owner-Operator Independent Drivers Association, Inc. (OOIDA), and the 
National Tank Truck Carriers, Inc. (NTTC). Committees of the CVSA 
consider and recommend modifications to the OOS Criteria, which are 
then accepted or rejected by a vote of CVSA member jurisdictions. The 
revised OOS Criteria are then submitted to the FHWA for its use.
    The FHWA's interest in the OOS Criteria is three-fold. First, as 
part of the MCSAP program, each State develops a Commercial Vehicle 
Safety Plan (CVSP) which the FHWA must approve before authorizing 
funds. At the present time, the CVSPs of all the States provide for use 
of the OOS Criteria in conducting driver, vehicle, and hazardous 
materials inspections at the roadside.
    Second, the FHWA's own safety investigators use the CVSA OOS 
criteria in the limited number of roadside inspections they perform 
each year. By following the CVSA OOS criteria in determining whether to 
place a driver or vehicle out-of-service, the FHWA is promoting 
consistency with these State-developed criteria and further uniformity 
in treatment of carriers nationwide.
    Third, the FHWA also uses the OOS Criteria indirectly in 
determining the safety fitness of motor carriers (49 CFR 385.5). The 
FHWA's safety ratings for motor carriers include three categories: 
Satisfactory, Conditional, or Unsatisfactory (49 CFR 385.7). The 
ratings are based on a number of factors, including compliance with the 
FMCSRs.
    The FHWA has recently placed greater emphasis on the safety 
performance of motor carriers in the rating process, and this action 
has led to additional emphasis on the OOS Criteria. The FHWA considers 
the vehicle out-of-service experience of motor carriers when 
calculating the vehicle factor, one of the six components of a motor 
carrier's safety rating. Rather than taking all roadside violations 
into account, the FHWA considers only out-of-service violations on the 
presumption that, because they are more serious, they are more likely 
to reflect on the inspection, repair, and maintenance programs of motor 
carriers.2
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    \2\ The out-of-service history is drawn from the nearly 2 
million vehicle inspections which are performed each year by the 
States participating in the MCSAP. If a motor carrier experiences a 
ratio of out-of-service inspections to ``clean'' inspections of 34 
percent or greater (minimum of 3 inspections), the initial rating 
for the Vehicle Factor is Conditional. The FHWA believes setting the 
ratio, commonly called the ``out-of-service rate,'' at 34 percent is 
appropriate because the national average is 33 percent.
    For a more detailed explanation of the Safety Fitness Rating 
Methodology, please consult FHWA Docket No. 94-22; FHWA-97-2252 (59 
FR 47203), and see two notices: (1) Notice of Proposed Rulemaking, 
Safety Fitness Procedures; Safety Ratings, May 28, 1997 (62 FR 
28826), and (2) Final Rule, Safety Fitness Procedures, November 6, 
1997 (62 FR 60035).
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Why is the FHWA Undertaking This Action?

    The agency believes that the OOS Criteria serve as guides for 
enforcement personnel in the exercise of discretion. The inspector 
determines if there is a violation of the underlying substantive safety 
regulation, whether it be the FMCSRs, a State law or regulation 
compatible with the FMCSRs, or the HMRs. When this determination has 
been made, the inspector faces a second question: may this particular 
driver or vehicle resume operations immediately in the face of this 
violation? The inspector exercises his or her discretion in answering 
this question. The OOS Criteria serve as guidelines to help the 
inspector determine whether the condition that he or she is observing 
is sufficiently hazardous to warrant placing the driver or CMV out-of-
service, or conversely, whether the condition is not serious enough to 
prevent the driver and CMV from proceeding in violation of the 
regulation, deferring the repairs until a more convenient time and 
location. Thus, the OOS Criteria take on the character of enforcement 
tolerances.
    The FHWA is responding today, however, to a growing perception 
within the industry that the CVSA OOS Criteria play a significant role 
in the enforcement of the FMCSRs, and that publication of the criteria 
as a part of the FMCSRs is therefore warranted. The FHWA believes that 
the time has come for a full discussion of the OOS Criteria: what are 
they; what is their purpose; how are they used; who is responsible for 
implementing them; and whether they are regulatory or merely guides for 
the use of necessary discretion in the enforcement of motor carrier 
safety.
    The FHWA is undertaking this action because there has been 
criticism of the manner in which the CVSA OOS Criteria are currently 
utilized. On May 1, 1989, the Maine State Police petitioned the FHWA to 
incorporate the CVSA OOS Criteria by reference within the FMCSRs. On 
October 29, 1993, the CVSA, petitioned the FHWA to define ``out-of-
service criteria,'' and incorporate the CVSA OOS Criteria into the 
FMCSRs by reference. On June 13, 1994, the OOIDA filed a motion with 
the FHWA to stay the imposition of certain final FHWA rules pertaining 
to penalties for violation of out-of-service orders, and cited in 
support of its motion the failure of the FHWA to formally incorporate 
these standards within the FMCSRs (FHWA Docket No. MC-92-13; FHWA-97-
2279 at 59 FR 26022).
    On April 20, 1995, the National Tank Truck Carriers, Inc. 
petitioned the FHWA to propose a rulemaking to establish the OOS 
Criteria as an appendix to the FMCSRs. On June 10, 1997, the FHWA 
granted the NTTC's petition, stating as part of the order entered that 
the FHWA would ``publish a rulemaking to discuss the entire issue and 
propose a resolution.'' This ANPRM initiates that rulemaking.
    Public comment on the issues raised in this ANPRM will assist the 
FHWA in determining whether any further regulatory action is required.

What Should be the Future Scope and Effect of the OOS Criteria?

    1. Maintain the current FHWA policy.
    As stated above, the FHWA uses the current CVSA OOS Criteria in 
several ways. The FHWA has treated these criteria as enforcement 
tolerances, as guidelines for its own staff, and as acceptable 
alternatives for States to use in their State Enforcement Plans adopted 
under the Motor Carrier Safety Assistance Program. Although these 
criteria are mentioned in the Federal Motor Carrier Safety Regulations 
(see, e.g., 49 CFR sections 383.5 and 390.5, definitions of ``out-of-
service orders''), the criteria themselves have not been adopted by the 
FHWA pursuant to notice and comment rulemaking. As

[[Page 38794]]

noted above, some industry representatives believe that the FHWA's use 
of these criteria has evolved to the point where adoption of the 
criteria pursuant to notice and comment rulemaking is warranted and 
desirable.
    As part of this rulemaking, the FHWA will consider the scope and 
effect of the OOS criteria and the use to which the FHWA puts these 
criteria. One possible alternative is to limit the use of the criteria 
in ways that do not require adoption of the criteria as regulations. 
Under its current policy, the FHWA considers the OOS criteria to be a 
tool to determine whether violations of the FMCSRs (or compatible State 
safety regulations) are so serious as to warrant ordering a motor 
carrier to cease using the driver or vehicle in question. The criteria 
themselves do not establish separate standards of conduct for regulated 
entities, nor is it intended that use of the criteria excuses other 
less serious violations of applicable safety regulations.
    Accordingly, comment is requested on the fundamental question of 
how the FHWA should use any OOS criteria. Comment is also solicited on 
the desirability of adopting the OOS criteria after notice and 
opportunity for comment, even if such opportunity for further public 
participation is not required.
    2. Adoption of the OOS Criteria in the FMCSRs.
    Comment is requested on the alternative of adopting the OOS 
criteria as part of the Federal Motor Carrier Safety Regulations, 
either because of the use to which the criteria is or should be put or 
because of the desirability of the opportunity for public participation 
inherent in the process of adopting these criteria as Federal 
regulations. If the FHWA should adopt out-of-service criteria by 
regulation, can the FHWA avoid undermining the general principle that 
compliance with all applicable safety regulations is required? Should 
the FHWA specifically require the use of such federally adopted out-of-
service criteria by States as a condition of MCSAP, or could the 
adopted criteria be one of several acceptable sets of criteria States 
could use? How would, or should, adoption of such criteria limit the 
discretion or Federal and State safety investigators to address 
discovered driver and vehicle safety violations at the roadside? Should 
investigators be limited to issuing out-of-service orders only to cases 
that expressly meet the adopted criteria? Should investigators be 
required to issue out-of-service orders in all cases where the criteria 
are met? How much discretion should investigators retain to address 
safety hazards discovered at the roadside that may not be precisely 
covered in the adopted criteria?
    3. How should out-of-service criteria be adopted?
    In addition to the basic question of whether the FHWA should adopt 
these criteria as regulations, the FHWA is requesting comment on the 
most desirable way to accomplish any such adoption. As explained above, 
the existing criteria are developed by the CVSA. Section 12 of Pub. L. 
104-113 (see 5 U.S.C. 272 note) directs agencies to use technical 
standards that are developed or adopted by voluntary consensus 
standards bodies. The FHWA appreciates the work done by the CVSA in 
maintaining the current criteria, and recognizes the value of that 
effort. The FHWA is also mindful of the role of the States in the MCSAP 
program and the desirability of using State-developed criteria or 
standards in the MCSAP program whenever possible. Therefore, the FHWA 
is seeking specific comment on how the FHWA should adopt any out-of-
service criteria. Should the FHWA, for example, consider adopting the 
CVSA criteria and incorporating them in the FMCSRs, either as an 
appendix to the FMCSRs or by seeking approval from the Director of the 
Office of the Federal Register to incorporate by reference the CVSA 
criteria into the FMCSRs? Should the FHWA set forth the text of any 
criteria adopted in the body of its safety regulations? What 
implications, if any, would there be for continued State development of 
out-of-service criteria if the FHWA adopts separate criteria or 
incorporates existing criteria? How can the FHWA best address the 
federalism implications of adopting out-of-service criteria that may be 
used by the States which have concurrent motor carrier safety 
jurisdiction? How can national uniformity be promoted, and how can 
maximum State and industry acceptance of the criteria be gained, by any 
proposed alternative adoption method?

Request for Comments

    A copy of the CVSA OOS criteria has been placed in the docket and 
may be accessed and viewed electronically following the instructions 
provided at the beginning of the Supplementary Information section of 
this ANPRM. Copies of the OOS Criteria may also be obtained at offices 
of the Federal Highway Administration's Office of Motor Carriers 
located in each State. The telephone numbers of the State offices may 
be obtained by telephoning 1-800-832-5660.
    The FHWA invites public comment on the OOS Criteria: What are they? 
Who should be responsible for implementing them? How should they be 
used? Are they appropriate for regulatory treatment, or should they 
remain as guides to the enforcement of motor carrier safety by 
participating jurisdictions? What should the scope and effect of the 
OOS Criteria be? Should they be referred to in the FMCSRs? If so, in 
what manner? Should they continue to be used in safety fitness 
determinations? The FHWA welcomes the presentation of alternatives to 
the approaches outlined in this document. The FHWA is not, however, 
seeking comment on the substance of the OOS Criteria at this time.

Rulemaking Analyses and Notices

    All comments received before the close of business on the comment 
closing date indicated above will be considered and will be available 
for examination in the docket room at the above address. Comments 
received after the comment closing date will be filed in the docket and 
will be considered to the extent practicable. In addition to late 
comments, the FHWA will also continue to file in the docket relevant 
information that becomes available after the comment closing date, and 
interested persons should continue to examine the docket for new 
material.

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

    The FHWA has determined that this action is not significant within 
the meaning of Executive Order 12866 or significant within the meaning 
of Department of Transportation regulatory policies and procedures. Due 
to the preliminary nature of this document and lack of necessary 
information on costs, the FHWA is unable to evaluate the economic 
impact of the potential regulatory changes being considered in this 
rulemaking. Based on the information received in response to this 
notice, the FHWA intends to carefully consider the costs and benefits 
associated with various alternative requirements. Comments, 
information, and data are solicited on the economic impact of any 
potential change.

Regulatory Flexibility Act

    Due to the preliminary nature of this document and lack of 
necessary information on costs, the FHWA is unable to evaluate the 
effects of the potential regulatory changes on small entities. Based on 
the information received in response to this notice, the

[[Page 38795]]

FHWA intends, in compliance with the Regulatory Flexibility Act (5 
U.S.C. 601-612), to carefully consider the economic impact of these 
potential changes on small entities. The FHWA solicits comments, 
information and data on these impacts.

Unfunded Mandates Reform Act

    The FHWA will analyze any proposed rule to determine whether it 
would result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any one year, as required by the Unfunded Mandates 
Reform Act of 1995 (2 U.S.C. 1532).

Executive Order 12612 (Federalism Assessment)

    This action has been analyzed using the principles and criteria 
contained in Executive Order 12612. Because of the preliminary nature 
of this document, it is not possible to determine whether this proposal 
will have sufficient federalism implications to warrant the preparation 
of a federalism assessment. The FHWA is presenting this rulemaking as 
an opportunity to air complex issues.
    These issues appear to have federalism implications. For example, 
adoption by the FHWA of the OOS Criteria as part of the FMCSRs would 
have an effect on States and municipalities. By making the OOS Criteria 
a part of the FMCSRs, the FHWA would be exercising control over those 
criteria. The CVSA might experience a diminished role in the 
development of policy standards for the exercise of enforcement 
discretion. Its member States might likewise experience a reduced role 
in their relationships with the Federal government. Incorporation by 
reference within the FMCSRs might have less of a federalism impact. The 
FHWA would have to conduct a rulemaking whenever the CVSA developed 
revisions of the OOS Criteria. But, because the language of the OOS 
Criteria would be more directly under the control of the CVSA, the 
federalism impact would be less than in the first approach. Maintaining 
the current policy would appear to have minimal federalism impact. The 
State-Federal partnership which has been operative in this area would 
presumably continue, and the CVSA and its member States would continue 
to play a large role in the maintenance of the OOS Criteria.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program. Catalog of Federal Domestic Assistance 
Program Number 20.217, Motor Carrier Safety.

Paperwork Reduction Act

    This action does not contain a collection of information 
requirement for purposes of the Paperwork Reduction Act of 1995, 44 
U.S.C. 3501-3520.

National Environmental Policy Act

    The agency has analyzed this action for purposes of the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and it 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 395

    Highway safety, Motor carriers, Reporting and recordkeeping 
requirements.

49 CFR Part 396

    Highway safety, Motor carriers, Motor vehicle safety, Reporting and 
recordkeeping requirements.

    Authority: 49 U.S.C. 31133, 31136, 31310, and 31502; sec. 345, 
Pub.L. 104-59, 109 Stat. 568, 613; and 49 CFR 1.48.)

    Issued on: July 10, 1998.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-19153 Filed 7-17-98; 8:45 am]
BILLING CODE 4910-22-P