[Federal Register Volume 65, Number 55 (Tuesday, March 21, 2000)]
[Rules and Regulations]
[Pages 15092-15110]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-6819]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350 and 355

[Docket No. FMCSA-98-4878 (formerly FHWA Docket No. FHWA-98-4878)]
RIN 2126-AA40 (formerly RIN 2125-AE46)


Motor Carrier Safety Assistance Program

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

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SUMMARY: The FMCSA is revising the Motor Carrier Safety Assistance 
Program (MCSAP) to comply with the congressionally-mandated provisions 
of the Transportation Equity Act for the 21st Century (TEA-21). This 
action broadens the scope of the MCSAP beyond enforcement activities 
and programs by requiring participating States to assume greater 
responsibility for improving motor carrier safety. These rules will now 
require States to develop performance-based plans reflecting national 
priorities and performance goals, revise the MCSAP funding distribution 
formula, and create a new incentive funding program. These rules 
provide States greater flexibility in designing programs to address 
national and State goals for reducing the number and severity of 
commercial motor vehicle (CMV) accidents. This action also includes 
conforming amendments to the regulations on compatibility of State laws 
and regulations affecting interstate motor carrier operations.

DATES: The effective date of this rule is April 20, 2000.

FOR FURTHER INFORMATION CONTACT: Mr. F. Daniel Hartman, National Safety 
Programs Division, MSP-10, (202) 366-9579, Federal Motor Carrier Safety 
Administration, 400 Seventh Street, SW., Washington, DC 20590; or Mr. 
Charles E. Medalen, Office of the Chief Counsel, HCC-20, (202) 366-
1354, Federal Highway Administration, 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 may access all comments submitted to the Docket 
Clerk, U.S. DOT Dockets, Room PL-401, 400 Seventh Street, SW., 
Washington, DC, in response to previous rulemaking notices concerning 
the docket referenced at the beginning of this notice 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 
on-line for more information and help.
    You may download an electronic copy of this document using a modem 
and suitable communications software from the U.S. Government Printing 
Office's Electronic Bulletin Board Service at (202) 512-1661. Internet 
users may reach the Office of the Federal Register's home page at URL: 
http://www.nara.gov/fedreg and from the U.S. Government Printing 
Office's databases at URL: http://www.access.gpo.gov/nara.

Creation of New Agency

    In October 1999, the Secretary of Transportation rescinded the 
authority previously delegated to the Federal Highway Administrator to 
perform the motor carrier functions and operations, and to carry out 
the duties and powers related to motor carrier safety, that are 
statutorily vested in the Secretary. That authority was redelegated to 
the Director of the Office of Motor Carrier Safety (OMCS), a new office 
within the Department (see 64 FR 56270, October 19, 1999, and 64 FR 
58356, October 29, 1999). The OMCS had previously been the FHWA's 
Office of Motor Carriers (OMC).
    The Motor Carrier Safety Improvement Act of 1999 (MCSIA) 
established the Federal Motor Carrier Safety Administration (FMCSA) as 
a new operating administration within the Department of Transportation, 
effective January 1, 2000 (Public Law 106-159, 113 Stat. 1748, December 
9, 1999). The Secretary therefore rescinded the motor carrier authority 
delegated to the Director of the OMCS and redelegated it to the 
Administrator of the FMCSA (65 FR 220, January 4, 2000).
    The staff previously assigned to the FHWA's OMC, and then to the 
OMCS, are now assigned to the FMCSA. The motor carrier functions of the 
FHWA's Resource Centers and Division (i.e., State) Offices have been 
transferred without change to the FMCSA Service Centers and FMCSA 
Division Offices, respectively. For the time being, all phone numbers 
and addresses are unchanged. Similarly, rulemaking activities begun 
under the auspices of the FHWA and continued under the OMCS will be 
completed by the FMCSA.

Background

    The Motor Carrier Safety Assistance Program (MCSAP) is a Federal 
grant-in-aid program. The MCSAP was first authorized in the Surface 
Transportation Assistance Act of 1982 (STAA)(Public Law 97-424, 96 
Stat. 2079, 2154), reauthorized in the Commercial Motor Vehicle Safety 
Act of 1986 (Public Law 99-570, 100 Stat. 3207, 3207-186), and again in 
the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA) 
(49 U.S.C. 31101-31104, as amended). The original authorization 
contained certain eligibility requirements for financial assistance, 
including agreement to adopt and enforce safety regulations compatible 
with the FMCSRs and Hazardous Materials Regulations (HMRs). The 
regulatory compatibility requirement remains today and ensures

[[Page 15093]]

a permanent and consistent enforcement and safety presence throughout 
the nation.
    The Motor Carrier Safety Act of 1984 (Title II of Public Law 98-
554, 98 Stat. 2832, 2838) created the Commercial Motor Vehicle Safety 
Regulatory Review Panel (Safety Panel) to analyze State CMV safety 
requirements and develop recommendations on how to achieve 
compatibility with the Federal regulations. The Safety Panel 
recommended, in part, that the FHWA establish procedures for the 
continual review and analysis of the compatibility of State safety laws 
and regulations with Federal requirements through the MCSAP. Consistent 
with these recommendations, the FHWA incorporated an annual review 
process as a MCSAP eligibility criterion. Section 208 of the 1984 Act 
also authorized the Secretary to preempt those State laws and 
regulations affecting interstate CMV safety found to be inconsistent 
with Federal laws and regulations. Such a finding would have the effect 
of rendering inconsistent State laws and regulations unenforceable.

Summary of TEA-21

    The TEA-21 (Public Law 105-178, 112 Stat. 107) was signed into law 
on June 9, 1998. Section 4003 of the TEA-21 authorized the MCSAP at the 
following funding levels for FY 1998 through FY 2003: $79 million for 
FY 1998, $90 million for FY 1999, $95 million for FY 2000, $100 million 
for FY 2001, $105 million for FY 2002, and $110 million for FY 2003.
    Section 4002 of the TEA-21 adds a new section 31100 to title 49 of 
the U.S. Code which revises the purpose of the grant program. The goals 
and directives outlined in this section closely parallel the concepts 
and principles of a performance-based program. The changes foster 
greater coordination and cooperation between State and Federal 
jurisdictions in improving CMV safety. The changes also give States 
more flexibility to address their particular safety issues through the 
MCSAP. Section 4002 of the TEA-21 also sets forth four current program 
goals:
    (1) Investing in activities achieving maximum accident reductions.
    (2) Assessing and improving statewide program performance by 
setting program outcome goals, improving information and analysis 
systems, and monitoring program effectiveness.
    (3) Ensuring adequate training of enforcement personnel.
    (4) Advancing promising technologies and safe operating procedures.
    Section 4003 of the TEA-21 has expanded the definition of 
``commercial motor vehicle'' to include vehicles with a gross vehicle 
weight (GVW) or gross vehicle weight rating (GVWR) of at least 10,001 
pounds. This amendment simplifies enforcement efforts in cases where a 
vehicle with a GVW of more than 10,001 pounds does not have a 
corresponding manufacturer's GVWR plate or is being operated in excess 
of the manufacturer's GVWR. The hazardous materials portion of the 
definition of ``commercial motor vehicle'' in 49 U.S.C. 31101 is also 
revised to make it consistent with the ``commercial motor vehicle'' 
definition in 49 U.S.C. 31132.
    A key provision of TEA-21 is the section 4003 requirement that 
MCSAP participating States implement performance-based CMV safety 
programs by FY 2000. This provision shifts the emphasis of State 
programs from measuring activity levels or input (e.g., the number of 
vehicles inspected) to focusing program effort on outcomes (e.g., 
reductions in CMV accidents, fatalities, and injuries). States have 
reacted very positively to this change and all participating MCSAP 
jurisdictions have implemented performance-based programs.
    Section 4003 also revised the grant eligibility criteria and the 
State plan format to require references to ``improving'' CMV safety and 
``hazardous materials'' enforcement. This section emphasizes that the 
principal goal of the MCSAP is not simply to enforce regulations but to 
encourage States to assume the responsibility for finding ways to 
actively improve CMV safety. It also reinforces the concept that it is 
equally important to adopt and enforce both the FMCSRs and the HMRs. 
Additional requirements include (1) establishing programs ensuring 
proper and timely correction of safety violations noted during roadside 
inspections, and (2) ensuring that roadside inspections are conducted 
at locations that will adequately protect the safety of both drivers 
and enforcement personnel. These provisions codify and reinforce 
longstanding best practices of State CMV safety programs.
    The legislation expands the existing requirement that State 
agencies coordinate the Commercial Vehicle Safety Plans (CVSP), 
originally called the State Enforcement Plan (SEP), with the State 
Highway Safety Plans under 23 U.S.C. 402. The TEA-21 mandates States 
participating in MCSAP to coordinate the CVSP and data collection and 
information systems with the State agency administering highway safety 
programs under title 23, U.S. Code. The January 1, 1994, deadline for 
SAFETYNET participation, as required by 49 U.S.C. 31102(b)(M), has been 
deleted since all States have met the requirement. Each jurisdiction 
receiving MCSAP funding is required to participate in SAFETYNET and 
other information systems. There is also a new requirement for States 
to exchange information in a timely manner. These requirements 
encourage States and agencies within a State to share best practices 
and develop broader-based safety programs.
    Section 4003(f) of TEA-21 removes the current funding set-asides 
for research and development, traffic enforcement, hazardous materials 
training, public awareness, and demonstration of technologies and 
methodologies. These set-asides were created to encourage uniform State 
implementation of significant national programs but limited States' 
flexibility in allocating their MCSAP resources. The set-asides have 
been replaced by new allocation criteria allowing the administrative 
flexibility needed for States to design programs targeting their unique 
safety problems as well as meeting national priorities. The new funding 
allocation allows up to 5 percent of MCSAP funds to be designated for 
States, local governments, and other persons using and training 
qualified personnel for high priority activities and programs that 
improve CMV safety and compliance with safety regulations. Up to 5 
percent of MCSAP funds will also be available to States, local 
governments, and other persons using and training qualified personnel 
to carry out border CMV safety programs, enforcement activities, and 
other projects. The Secretary may also reimburse State agencies, local 
governments, or other persons up to 100 percent for public education 
activities relating to border or high priority activities, programs, 
and projects.
    The overall MCSAP funding consists of four parts:
    1. Basic Program Funds emphasizing uniform roadside driver and CMV 
safety inspections, data collection and reporting, traffic enforcement, 
drug and alcohol enforcement, educational activities, compliance 
reviews, and current complementary activities.
    2. Incentive Funds encourage States to improve CMV accident 
performance and to meet other safety performance criteria.
    3. High Priority and Border Activity Funds for States to improve 
CMV safety and compliance with safety regulations and to carry border 
CMV safety

[[Page 15094]]

programs, enforcement, and other projects.
    4. Administrative set-aside of 1.25 percent to cover program 
administration and State personnel training costs.

General Discussion of the NPRM

    The notice of proposed rulemaking (NPRM) to amend the regulations 
governing the MCSAP and to request comments was published in the 
Federal Register on March 9, 1999 (64 FR 11414). In the preamble to the 
NPRM, proposed changes to the regulations were thoroughly explained.

Discussion of Responses to the NPRM

    The comment period of the NPRM closed on May 10, 1999. Forty-three 
comments were received. Of these, thirty-three were from MCSAP 
agencies, six were from various safety associations, one was from a 
trucking company, one from a Federal agency, one from the Upper Great 
Plains Transportation Institute, and one from an individual.

Specific Concerns

Definitions
    Four commenters believed that ``large truck'' should be defined.
    The FMCSA agrees and, for the purpose of distributing Incentive 
Funds for reducing the number and rate of large truck-involved fatal 
accidents, is using the Fatality Analysis Reporting System (FARS) 
definition of a ``large truck.''
    The State of Louisiana supported the revised definition of a CMV.
    The term ``performance factor'' has been deleted, since the 
proposal to adjust the States' basic program funding level by applying 
a factor based upon a State's reduction in its CMV accident rate has 
been removed.
    While the calculation of ``accident rate'' and ``10-year average 
accident rate'' were described in detail in the NPRM, those terms were 
not included in the definitions section. Those definitions have been 
added. For the purpose of determining States' eligibility under 
Sec. 350.327(b)(2) Incentive Funds, the definition of ``10-year average 
accident rate'' has been added to Sec. 350.105. For example, for the FY 
2000 distribution:
    1. The FMCSA would calculate a State's 10-year average accident 
rate period from 1987 through 1996. The average 10-year accident rate 
would be calculated by dividing the number representing the State's 
aggregated number of large truck-involved fatal crashes as reported in 
the FARS from 1987 through 1996 by the number representing the State's 
aggregate vehicle miles traveled (VMT) as reported by the FHWA for the 
same 10-year period.
    2. The FMCSA would then calculate the State's 1997 accident rate by 
dividing the number of large truck-involved fatal crashes as reported 
in the FARS by the number representing the State's vehicle miles 
traveled (VMT) and compare that to the average 10-year accident rate.
    3. If a comparison reveals the State's accident rate has increased, 
the State would not be eligible to receive accident-rate incentive 
shares for the current funding year since there was no reduction.
    4. If a comparison reveals that the accident rate has decreased, 
the State would be eligible to receive accident-rate incentive shares 
for the current funding year.
    5. If a comparison reveals the State's 1997 accident rate is within 
the lowest 10 percent of accident rates and the 1997 rate is the same 
as the State's 10-year average accident rate, the State would be 
eligible to receive accident rate incentive shares for the current 
funding year.
    6. The calculations in steps 1 through 5 would be repeated in FY 
2001 through 2003, adjusting the 10-year period and average and using 
the most recent calendar year for which data are available for 
comparison to the 10-year average.
    Finally, the term ``crash'' has been replaced by the term 
``accident'' throughout the preamble and the rule to more accurately 
reflect the nature of our CMV safety program.
Basic Program Funds Allocation Formula
    While most of the respondents support the performance-based 
concept, the greatest source of disagreement on the Basic Program Funds 
allocation formula concerned the new performance factor. Twenty-three 
different comments suggested that the performance factor be dropped 
from the formula or that some measure other than accidents be used to 
determine performance. States believe that the Basic Program Funds 
should be left intact in order to provide funding continuity from year 
to year. Most States with a low fatality count were concerned that a 
single fatal accident could significantly affect the amount of funds 
received. It was noted that using the fatal accident rate both to 
penalize a State's receipt of Basic Program Funds and also to fail to 
reward a State with Incentive Funds appears to be double jeopardy. 
States believed that reducing a State's Basic Program Funds based on 
fatal accidents, which can be caused by factors not directly 
controllable by the State's safety programs (e.g., weather), is unfair.
    The FMCSA agrees that applying a performance factor to the basic 
program fund allocation could have a negative effect on MCSAP programs 
within a State and, therefore, will remove the performance factor 
(proposed Sec. 350.325) from the Basic Program Funds formula process.
    The States of Idaho, Vermont, Wyoming, and Montana, and the 
American Trucking Associations (ATA), questioned the use of population 
as a formula factor, stating that population is not a direct measure of 
commercial vehicle activity.
    Because the major goal of the MCSAP is to reduce the number and 
severity of CMV accidents and population provides an indirect measure 
of accident exposure, the FMCSA has determined that population is a 
relevant formula factor and will be retained in the basic formula.
    California and New York, two States with large urban populations, 
recommended the use of lane miles rather than highway road miles.
    The FMCSA analyzed the use of lane miles as a potential formula 
factor and found that it correlated highly with highway road miles. 
Because of this high correlation and because highway road miles were 
already an accepted factor, the FMCSA decided that there was no need to 
change from highway road miles to lane miles.
    The States of Idaho and Wyoming recommended the use of CMV miles 
traveled (CVMT) rather than total VMT in the formula, stating that non-
commercial vehicle travel has little to do with CMV safety activities.
    The FMCSA considered the use of CVMT as a factor. The CVMT 
(calculated as the VMT of combination and heavy single-unit trucks) is 
highly correlated to total VMT but has the disadvantage of requiring 
additional calculations. In addition, one State does not report VMT 
data for CMVs. Finally, a majority of fatal accidents involving CMVs 
also involve other vehicles. As a result, the FMCSA decided to use 
total VMT as a direct indicator of accident exposure.
    Oregon and Montana suggested that highway road miles within 
federally controlled lands (e.g., those areas controlled by the Bureau 
of Land Management (BLM)) and any road open to CMVs be included in the 
mileage factor.
    The source of the mileage used in the MCSAP formula is the totals 
column of Table HM-10 of the FHWA's

[[Page 15095]]

publication, ``Highway Statistics.'' \1\ This table includes both rural 
and urban highway road miles as submitted by the States to the FHWA. 
The FMCSA acknowledges that the exclusion of the BLM road miles from 
the FHWA's statistics beginning with 1998 could adversely affect CMV 
safety in States with a significant number of BLM road miles. Since 
States perform safety tasks on these roads, the FMCSA has decided to 
use the 1997 FHWA Road Miles calculation through FY 2003.
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    \1\ ``Highway Statistics'' is published annually by the Federal 
Highway Administration. It is available for inspection and copying 
as prescribed at 49 CFR part 7 and may be purchased from the 
Superintendent of Documents, U.S. Government Printing Office, 
Washington, DC 20402.
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    The Commonwealth of the Northern Mariana Islands and the Government 
of Guam requested reconsideration of reducing grants to the 
Territories. The NPRM noted that grants were proposed to be reduced 
from prior funding levels because Territories had lower population 
levels, road miles, and VMT and did not report special fuel 
consumption. These commenters explained that their special geographic 
situation and taxation system were different from the 50 States, which 
caused their reporting system to be different. They also asserted that 
a reduction in funding level would adversely affect their programs.
    The FMCSA acknowledges the difference in reporting requirements but 
significant differences remain between the Territories and the 50 
States in terms of population and road miles. With the increased funds 
authorized by the TEA-21, the FMCSA will add more funding to the 
Territories (Guam, American Samoa, Northern Mariana Islands, and the 
Virgin Islands) and hold them closer to their FY 1999 funding level. 
This amount is fixed at $350,000 and will not change through FY 2003.
    The State of Idaho, which has a large percentage of Federal land, 
suggested using Federal acreage as a formula factor because the 
building of new roads is restricted within Federal lands, which 
penalizes the State's ability to increase its total highway mileage.
    The FMCSA considered acreage and rejected it because the existence 
of large land areas, without extensive road miles, simply does not 
relate to accident potential.
    The Owner-Operator Independent Drivers Association (OOIDA) 
recommended that the number of CMV accidents be used as a formula 
factor, where the number of accidents is directly proportional to the 
amount of money received (i.e., States that have more accidents would 
receive more funding).
    The FMCSA considered the possibility of using CMV accidents as a 
factor in the formula for distribution of Basic Program Funds. 
Incorporation of CMV accidents was rejected because (1) there is not 
currently a valid source of complete CMV accident data, (2) the four 
formula factors, as described, apportion funds to those States with the 
greatest accident exposure, and (3) using accidents as a factor does 
not place emphasis on accident reduction (a performance goal).
    North Carolina suggested that a State's economy should be 
reconsidered as a formula factor because a booming economy would 
directly correlate to the number of CMVs traveling in a State.
    The FMCSA determined that the use of special fuels (e.g., diesel) 
was a better measure of CMV activity in a State.
    Louisiana suggested using traffic density as a factor.
    The FMCSA examined traffic density in detail because it appeared to 
be a reasonable measure of accident potential. For States that are 
consistently urban (high traffic density; e.g., Washington, D.C.) or 
consistently rural (low traffic density; e.g., North Dakota), a measure 
of traffic density makes sense. For States with a combination of very 
urban areas and great expanses of rural areas (e.g., Texas), however, 
the logic of an overall traffic density factor for the entire State 
fails. Therefore, traffic density will not be incorporated as a factor 
in the formula.
    The State of Illinois asserted that if a performance factor had to 
be applied to the Basic Program Funds allocation, then strong 
consideration should be given to adding a comparison of each State to 
the National accident rate.
    Since the performance factor has been deleted, this recommendation 
is no longer a consideration.
Distribution of Basic Program Funds and Incentive Funds
    Ten respondents disagreed with dividing the MCSAP funds into the 
Basic Program Funds and Incentive Funds by percentages which changed 
each year (i.e., a 90-10 split in the year 2000; 85-15 split in the 
year 2001; 80-20 split in the year 2002; and 75-25 split in the year 
2003, etc.). While the National Association of Governors' Highway 
Safety Representatives and the Commercial Vehicle Safety Alliance 
(CVSA) recommended that the Basic Program Funds not be decreased in 
order to provide more funding for Incentive Funds, State agencies in 
New York, Minnesota, and Illinois recommended different percentages for 
the splits. States commented that the final MCSAP Basic Program Funds 
distribution should be continued at the States' current levels of 
funding to encourage enrichment or enhancement of those efforts in 
areas of greatest safety potential.
    After careful consideration of these comments, the FMCSA has 
adjusted the percentages for dividing the MCSAP funds. The revised 
percentages are shown in the table below. The MCSAP Basic Program Funds 
distribution has been increased to provide funding in FY 2000 above the 
FY 1999 funding amount of $80,000,000, thereby providing a modest 
growth in the Basic Program Funds through FY 2003. Therefore, the 
Incentive Funds have been recalculated to begin at 5 percent of the 
total MCSAP funds available in FY 2001, with an increase of 3 percent 
per year, with the final percent in FY 2003 at 11 percent.
    The MCSIA has provided additional funding for the motor carrier 
safety grant program. Section 103(b)(1) of the MCSIA increased the 
amount available in fiscal years 2001, 2002 and 2003 for motor carrier 
safety grants by $65 million per fiscal year. This amount was reduced 
by a total of $10 million per fiscal year for FY's 2001 through 2003 to 
fund the Commercial Motor Vehicle Crash Causation Study (section 
224(f), $5 million) and data collection and analysis activities 
(section 225(f), $5 million) of the MCSIA. Accordingly, the table 
entitled ``MCSAP Funds Distribution Based on TEA-21 and MCSIA 
Authorization Levels'' has been revised to reflect a net increase of 
$55,000,000 per fiscal year in FY's 2001 through 2003 for motor carrier 
safety grants.

                     MCSAP Funds Distribution Based on TEA-21 and MCSIA Authorization Levels
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                   Fiscal year                         2000            2001            2002            2003
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Total MCSAP Funds...............................     $95,000,000    $100,000,000    $105,000,000    $110,000,000

[[Page 15096]]

 
                                                                      55,000,000      55,000,000      55,000,000
                                                                 -----------------------------------------------
                                                                     155,000,000     160,000,000     165,000,000
Administrative Takedown*........................       1,187,500       1,937,500       2,000,000       2,062,500
High Priority Activities........................       4,750,000       7,750,000       8,000,000       8,250,000
Border Activities...............................       4,750,000       7,750,000       8,000,000       8,250,000
Basic Program Funds.............................      84,312,500     130,684,375     130,640,000     130,329,375
                                                                           (95%)           (92%)           (89%)
Incentive Funds.................................             0**       6,878,125      11,360,000      16,108,125
                                                                            (5%)            (8%)          (11%)
----------------------------------------------------------------------------------------------------------------
* Minimum of 75 percent is dedicated for training State Personnel.
** No Incentive Funds were distributed in fiscal year 2000.

    The table entitled ``MCSAP Funds Distribution'' has been removed 
from proposed Sec. 350.313(d) due to the uncertainty that the annual 
congressional MCSAP appropriation will be identical to the current 
authorized funding level.
Incentive Funds Allocation
    Eight States and two organizations asserted that the philosophy of 
rewarding States for cutting down on their accident problem was 
illogical. They stated that the funds should go to those States with 
the biggest accident problems in order to deal with those problems.
    The objective of the MCSAP is not to distribute funds to the 
States, the objective is to reduce accidents, injuries, and fatalities. 
Simply providing more funds to States with increased accidents, 
injuries and fatalities provides no incentive to improve safety. 
However, the four-factor formula for allocating Basic Program Funds, 
while not based on the number of accidents, does provide the greatest 
amount of funds to those States with the greatest potential for 
accident problems.
    Ten States and one safety advocacy group disagreed with the use of 
population in the determination of the accident rate and suggested 
using all VMT rather than population in the calculation. One comment 
indicated that population is a fair basis for allocating basic funding 
because population is an indirect measure of accident potential. 
However, for determining the accident rate, use of VMT was recommended 
because VMT links fatalities to the actual rate of exposure.
    The FMCSA agrees with this set of comments. The definition of 
fatal-accident rate has been changed to the total number of large 
truck-involved fatal crashes as reported in FARS for each State divided 
by the total VMT for each State for all vehicles.
    Seven States and the ATA recommended using the number of CMV 
accidents rather than the number of fatal accidents in determining the 
accident rate. Various reasons were given. First, the costs of 
crippling injuries and property damage are significant, even if a 
fatality is not involved. Second, the difference between a fatal 
accident and a serious injury accident is often a difference of luck or 
the physical condition of the victim. Third, a small State may have 
relatively few fatal CMV accidents and any fluctuation would have 
profound impacts upon the accident rate. Using the total number of CMV 
accidents would have less impact from year to year.
    The FMCSA basically agrees with all of these arguments. However, 
the reason for not using all CMV accidents at this point is the lack of 
a mature, reliable data base. The Motor Carrier Management Information 
System (MCMIS) accident module will eventually be an excellent source 
for CMV accident data. At this time, however, not all States are 
reporting accurate and consistent data to MCMIS. As MCMIS accident 
reporting by the States improves, the agency may consider using CMV 
accidents as the safety performance measure for MCSAP funding.
    The States of Louisiana, Maryland, South Carolina, and South 
Dakota, the National Association of Governors' Highway Safety 
Representatives, and the ATA disagreed with the proposal to compare the 
ten-year average accident rate with the current one-year accident rate. 
The ATA suggested comparing a three-year average with the ten-year 
average to prevent unwarranted penalties because of random annual 
fluctuations in the number of accidents in States with relatively few 
fatal accidents.
    The purpose of comparing the ten-year average to the current year's 
fatal accident rate is to give an incentive to reduce accidents. The 
purpose of comparing one year's accidents and accident rate to the 
average of the preceding 10 years is to determine the effectiveness of 
that year's accident reduction strategies. For this reason, the FMCSA 
will retain the proposed method of calculation.
    Massachusetts commented that the definition of accident rates 
appears to change between the description of Basic and Incentive Funds.
    The word ``fatal'' is added to the description of accident rates in 
Secs. 350.317 and 350.327.
    The Association of Waste Hazardous Materials Transporters 
questioned the fairness of allocating MCSAP Incentive Funds based on 
all CMV-involved fatal accidents and asserted that the accident rates 
should be derived using the number of accidents attributable to the CMV 
(based on law-enforcement citations).
    The FMCSA does not agree with this recommendation because the 
issuing of citations as a result of an accident (as recorded in the 
FARS) does not always provide a complete determination of ``fault.''
    Fourteen commenters recommended that the FMCSA not use accident 
rates for allocation of Incentive Funds. Three reasons were given:
    1. An improved accident rate is not always the result of State 
efforts, and accidents may increase even after a State has put forth 
its best effort to reduce accidents.
    2. States with low numbers of accidents will be penalized by very 
small changes in the number of accidents, even when the changes may not 
be statistically significant.
    3. States will be penalized for improvements in accident reporting.
    To lessen the impact of the accident statistics in the Incentive 
Funds allocation process, one commenter suggested allotting equal 
shares to each factor. Another comment was to use positive rather than 
negative incentive measures (e.g., assign incentive points

[[Page 15097]]

for proactive program development plans).
    Incentive Funds do not ``penalize'' the States. These are 
additional funds beyond the Basic Program Funds allocation and serve to 
reward States which have seen a reduction in the number of fatal 
accidents or the fatal accident rate and an improvement in other areas. 
If a State's performance continues to improve, the State will continue 
to receive Incentive Funds. Proactive program development should result 
in a reduction in accidents. Reducing accidents is a positive measure.
    The State of New York noted that the approach to incentive funding 
fails to recognize States that have developed successful CMV safety 
programs. New York commented that ``it is designed to make it 
relatively easy for states with poorer programs to get significant 
incentive funding for modest gains even though they are at the bottom 
of any reasonable comparative national ranking.''
    The FMCSA recognizes that States with the best (or lowest) fatal 
accident rates may have difficulty reducing those rates further, while 
States with higher accident rates have more room for improvement. To 
encourage those States with the lowest fatal accident rates who were 
unable to reduce--but were able to maintain--those outstanding fatal 
accident rates, three incentive shares will be awarded.
    Although comments generally supported the concept of incentive 
funding, comments from nine States and the CVSA indicated concern that 
establishing an incentive award for timely upload of CMV accidents may 
actually have the effect of reducing the completeness and accuracy of 
the data. These States also maintain that they have no control over the 
speed with which certain accident data is reported to them, thereby 
resulting in late reporting to the FMCSA.
    We are sympathetic to the States' accident reporting challenges, 
particularly their dependence on law enforcement agencies outside the 
lead MCSAP agency jurisdiction, but the collection of complete, 
accurate and timely accident data is vital to reducing fatalities and 
accidents. We cannot compromise our safety goals due to a fear that 
States will not report accident information in order to prevent their 
timeliness record from suffering. A sufficiently populated accident 
database provides the CMV accident information necessary to profile 
high-risk carriers and drivers and establish national policies and 
regulations that promote safety. More importantly, however, a complete 
and timely accident database enables the States to evaluate current 
safety and enforcement programs, to formulate effective future 
programs, and to allocate resources based upon sound data--elements of 
an effective performance-based program. As such, the FMCSA will retain 
timely accident data upload as an incentive element, and will continue 
to work with the States in seeking ways to improve State-wide accident 
reporting mechanisms.
    In addition, the weighting of the incentive categories has been 
adjusted to emphasize the importance of fatality reduction compared to 
other program element improvements.
    The States of California, Illinois, Michigan, and New York 
commented that the proposed method of calculating and distributing 
incentive award funds failed to reflect the relative size of States' 
Basic Program Funds. The FMCSA agrees and has modified the formula to 
weight shares based upon a State's percentage of participation in the 
Basic Program Funds distribution formula.
    The total of all States' shares will be divided into the dollar 
amount of Incentive Funds available, thereby establishing the value of 
one share. Each State's incentive allocation will then be determined by 
multiplying the State's percentage of participation in the formula 
allocation of Basic Program Funds, by the number of shares it has that 
year, by the dollar value of one share.
Use of FARS Data for the Incentive Funds
    Six States commented about using FARS data rather than the office's 
own SAFETYNET accident data for all accidents to determine incentive 
shares.
    Currently, the FMCSA SAFETYNET Accident Module is not sufficiently 
populated to be used to distribute funds. The agency is working 
aggressively with States to record all required CMV accidents in 
SAFETYNET. As accident data collection improves, the agency can use it 
as the basis for calculating incentive funding. The FARS is a 
nationally recognized source of fatal accident data and the most 
consistent and reliable data source available at this time.
Partial Funding (50 Percent) Basic Program Funds
    The States of Florida, Maine, and South Dakota commented that there 
was no provision in the NPRM for continued partial (50 percent) funding 
of the MCSAP Basic Program Funds for those States with existing 
incompatible intrastate regulations outside the Tolerance Guidelines 
and the FMCSRs. The State of Michigan commented that no State would be 
eligible for any funding for incompatibility based on Sec. 350.203, and 
that the FMCSA should amend that section.
    Eliminating partial funding from the NPRM for States that currently 
have incompatible intrastate regulations was an administrative 
oversight and has been corrected in the final rule under Sec. 350.335. 
Florida, Maine and South Dakota will continue to receive 50 percent 
funding of their Basic Program Funds formula allocation until the 
incompatibilities are removed, and provided no further 
incompatibilities have been created. However, any State that becomes 
incompatible, other than the existing three incompatible States, will 
not be eligible for funding.
    The State of Maine (Department of Public Safety) commented on 
Sec. 350.341(d) of the Tolerance Guidelines prohibiting exemptions to 
the FMCSRs based upon the distance a motor carrier or driver operates 
from the work reporting location. Maine has three regulatory variances 
which exempt from all of Parts 391 and 395, and portions of 396, 
intrastate carriers, except those transporting Hazardous Materials, 
whose drivers operate within a 100 air-mile radius of their terminal. 
Maine stated: ``[I]t is the position of the State of Maine that our 
exemption does not impact highway safety and that the penalty imposed 
restricts the ability of the State of Maine to maximize our ability to 
impact highway safety by limiting activities under the MCSAP Program.''
    Maine believes that the FMCSA would circumvent the intent of 
Congress through administrative rulemaking if Sec. 350.341(d) is 
adopted. The substance of Sec. 350.341(d) has been part of the 
Tolerance Guidelines since September 8, 1992. Until the study required 
by section 4032 of TEA-21 is complete, and a final decision is made, 
the States of Maine, Florida, and South Dakota will continue to receive 
50 percent of their MCSAP Basic Program Funds.
Conditions To Qualify for Basic Program Funds
    California commented that the FMCSA did not specifically identify 
those parts of the FMCSRs that the States are required to adopt or be 
compatible with in order to qualify for and receive MCSAP funds.
    The FMCSA did not intend to extend the scope of required compliance 
beyond Parts 390 through 397. That is the clear meaning of 
Sec. 350.201. However, Sec. 350.201(a) has been

[[Page 15098]]

rewritten to clarify which parts of the FMCSRs and HMRs must be adopted 
by the States to qualify for MCSAP funding. This paragraph incorporates 
exceptions previously found in the ``Conditions for basic grant 
approval'' and the ``Tolerance Guidelines.''
Maintenance of Effort
    Section 103(c) of the MCSIA amends the maintenance of effort 
required in the ISTEA by changing the base period to fiscal years 1997, 
1998, and 1999 for measuring the level of effort. The effect of this 
change is to greatly increase the level of commercial motor vehicle 
safety activities that the State must maintain to participate in MCSAP. 
The intent of the maintenance of effort provision is to ensure that 
Federal funds supplement State funds and do not replace them. Further, 
it ensures that States commit to continuing their past efforts in 
commercial motor vehicle safety activities.
Enforcement of Registration and Financial Responsibility Requirements
    Section 207 of the MCSIA amended 49 U.S.C. 31102(B)(1)(R) to read 
as follows (new material italicized): ``(R) ensures that the State will 
cooperate in the enforcement of registration requirements under section 
13902 and financial responsibility requirements under sections 13906, 
31138, and 31139, and regulations issued thereunder.'' The references 
to Sec. 13902 (``Registration of motor carriers'') and 13906 
(``Security of motor carriers, brokers, and freight forwarders'') 
merely clarified the meaning of the previous text by identifying the 
statutory provisions that deal with registration and financial 
responsibility requirements. Since Sec. 207 did not substantively 
change subparagraph (R), the FMCSA finds good cause, pursuant to 5 
U.S.C. 553(b)(3)(B) of the Administrative Procedure Act, to incorporate 
these changes into Sec. 350.201(t) without prior notice and opportunity 
for comment.

Local Jurisdictions

    The State of California, the OOIDA, the National Association of 
Governors' Highway Safety Representatives, and the CVSA were strongly 
opposed to local jurisdictions participating in High Priority MCSAP 
funding.
    The FMCSA believes that under very limited circumstances, it may be 
desirable to fund local agencies' CMV safety program activities. In 
those cases, the local agency receiving a grant would be held to 
essentially the same qualification, certification, and administrative 
requirements as any other MCSAP jurisdiction, and in any event be 
required to coordinate all activities through the lead MCSAP agency in 
that State.
Compatibility
    Parts of 49 CFR pertaining to the FMCSRs and HMRs which were 
inadvertently omitted from the NPRM but are in the current part 350, 
appendix C, have been added to Sec. 350.337. The response to the 
question found at Sec. 350.337 in the NPRM was not sufficiently clear 
about the extent to which State laws governing interstate commerce may 
differ from Federal law and still be compatible. The response has been 
rewritten to agree with the regulatory adoption requirements and 
exceptions stated in Sec. 350.201. The FMCSA has added the phrase ``and 
provide an orderly transition to full regulatory adoption at a later 
date'' in Sec. 350.341(g). This phrase is in the current Tolerance 
Guidelines in part 350 and was inadvertently left out of the NPRM. 
There was no intention of changing the standard for grandfather 
clauses.
    The Wisconsin Motor Carriers Association and the Wisconsin DOT both 
commented about the addition of the words ``engaged exclusively in 
intrastate commerce'' with regard to the Tolerance Guidelines in 
Sec. 350.339. Their comments suggested that this phrase could be 
interpreted to require any motor carrier that uses the same drivers and 
vehicles in both interstate and intrastate commerce to be subject only 
to the U. S. DOT jurisdiction and the FMCSRs rather than allowing those 
carriers, drivers and CMVs to be subject to State rules when operating 
on an intrastate basis.
    The FMCSA agrees with these comments and has removed the word 
``exclusively'' from Secs. 350.339, 350.341, and 350.343.
    The U.S. Equal Employment Opportunity Commission commented and 
urged the FMCSA to revise the State waiver standard in Sec. 350.341(h) 
to be no more restrictive than the newly adopted waiver standards under 
section 4007 of TEA-21.
    The FHWA's interim final rule implementing section 4007, ``Federal 
Motor Carrier Safety Regulations; Waivers, Exemptions, and Pilot 
Programs; Rules and Procedures,'' [63 FR 67600, December 8, 1998] 
applies to interstate commerce. As indicated earlier in this notice, 
the Secretary has rescinded the authority previously delegated to the 
FHWA to carry out motor carrier functions and operations. Therefore, 
the regulations issued by the FHWA are now regulations of the FMCSA.
    The Tolerance Guidelines in the current part 350 set forth the 
limited deviations from the FMCSRs allowed for laws and regulations 
that apply only to motor carriers, CMV drivers and CMVs engaged in 
intrastate commerce that are not subject to Federal jurisdiction. 
Section 350.341(h)(1) describes variances in place prior to the 
implementation of the requirements of the Surface Transportation 
Assistance Act of 1982. Presumably, the States who had variances 
grandfathered under Sec. 350.341(h)(1) ensured that they were based 
upon appropriate performance standards and had no adverse effect upon 
safety. Since the driver qualification standard in Sec. 350.341(h)(2) 
is consistent with the requirements of 49 CFR part 381--Waivers, 
Exemptions, and Pilot Programs, no change has been made to the 
Tolerance Guidelines in Sec. 350.341(h)(2).
    California commented that participating States should be given 
latitude to enact regulations and statutes that are compatible with 
Federal regulations but not identical. The State suggested that the 
FMCSA should retain the terminology ``having the same effect as'' in 
lieu of the word ``identical.''
    It was an administrative oversight to leave out the phrase ``having 
the same effect as.'' We have added it to the language in Sec. 350.105 
only for the FMCSRs. The word ``identical'' will also remain.
    California commented that under Sec. 350.345, a State should be 
able to apply for additional variances from the Tolerance Guidelines 
and have those variances apply to interstate commerce.
    California's request would undermine the congressional intent and 
purpose of the MCSAP to ensure uniformity of regulations and 
enforcement among the States. Since the inception of the program, the 
agency has required each State to enforce uniform motor carrier safety 
and hazardous materials regulations for both interstate and intrastate 
motor carriers and drivers. Safety standards in one State must be 
compatible with the requirements in another State in order to foster a 
uniform national safety environment. The purpose of variances is to set 
forth the limits within which a State can deviate from the FMCSRs and 
still be considered compatible for funding purposes under 49 CFR 350. 
But these variances are applicable only to those State rules and 
regulations where the U.S. Department of Transportation does not have 
jurisdiction, namely intrastate commerce. Variances are not available

[[Page 15099]]

for State rules and regulations governing interstate commerce.

Commercial Vehicle Safety Plan (CVSP)

    Nine comments dealt with the CVSP.
    Nevada was opposed to including a safe inspection location 
requirement in the State Certification. Nevada indicated most States 
have inspection sites that are adequate or barely adequate for CMV 
inspections and some are not safe under all weather conditions and 
certain times of the day.
    The OOIDA and the ATA supported the requirement.
    Since section 4003(c)(8) of TEA-21 requires that States ensure 
roadside inspections will be conducted at a location that is adequate 
to protect the safety of drivers and enforcement personnel as a 
condition for Basic Program Funds, that requirement must be part of the 
State Certification. The language has been revised to require that the 
MCSAP agency have departmental policies stipulating that roadside 
inspections are conducted at locations adequate to protect the safety 
of drivers and enforcement personnel.
    The FMCSA is adding three items to the State Certification to be 
consistent with the conditions a State must meet to qualify for Basic 
Program Funds: (1) The State will participate in SAFETYNET and ensure 
information is exchanged with other States in a timely manner; (2) The 
State will ensure that requirements relating to the licensing of CMV 
drivers is enforced, including checking the status of commercial 
driver's licenses (CDL); and (3) The State will ensure that CMV size 
and weight enforcement activities funded with MCSAP funds will not 
diminish the effectiveness of other CMV safety enforcement programs.
    Nevada and Wisconsin commented that the States need clarification 
regarding the requirement that the CVSP, data collection, and 
information systems be coordinated with State highway safety programs 
under 23 U.S.C. 402.
    This requirement is neither another layer of approval for the CVSP 
nor a means to validate the States' SAFETYNET data with section 402 
data. The requirement to coordinate a State's CVSP (formerly SEP) with 
the State highway safety plan under 23 U.S.C. 402 has always been a 
component of the State Certification. Section 4003(c)(2) of TEA-21 
merely expands the requirement to also include the coordination of data 
collection and information systems with State highway safety programs 
under title 23, U.S. Code. Certification item 12 has been revised to 
reflect that mandate. The intent of this congressional direction is to 
ensure close coordination of State highway safety programs. State 
highway safety programs aimed at passenger cars and drivers and those 
aimed at CMVs and CMV drivers should complement each other to the 
fullest possible extent. Both the section 402 State and community grant 
program and MCSAP are data-driven and performance-based programs 
designed to reduce accidents, injuries, and fatalities. The Congress 
intends for these programs to share data, information, and program 
plans to reduce fatalities. The States must certify that information 
exchange or coordination of safety plans was accomplished.
    The OOIDA, Advocates for Highway and Auto Safety (AHAS), and the 
States of Iowa and Maryland commented about the timely and proper 
correction of all CMV safety violations. The OOIDA commented that there 
are no standards which define the ``timely and proper'' correction of 
CMV violations. Iowa commented that the term ``all'' should be 
eliminated. The AHAS expressed its concern for eliminating ``the prior 
regulatory requirement that states enact and enforce an out-of-service 
(OOS) verification program in favor of a `certification acceptance' 
that the States have a process in place for timely and proper 
correction of all CMV safety violations noted during inspections.'' 
Maryland is concerned that the State has no control over interstate 
carriers not domiciled in their State.
    Section 4003(c)(4) of TEA-21 eliminates the current statutory 
requirement that the States establish an out-of-service verification 
program and mandates that the States ``will establish a program to 
ensure the proper and timely correction of commercial motor vehicle 
safety violations noted during an inspection* * * .'' This mandate does 
not preclude the States from continuing their out-of-service 
verification programs. This is not a new requirement for the States. 
Section 350.9(p) currently requires the correction of all violations 
cited on roadside inspection reports. States are also required to have 
a tracking system in place to ensure that motor carriers certify the 
corrections of safety violations and that inspection reports are 
returned to the issuing agency (Sec. 350.13(b)(4)(v)).
    Standards to define ``timely and proper'' corrections of CMV 
violations are found in 49 CFR 396.9(d)(2) which states: ``Motor 
carriers shall examine the report. Violations or defects noted thereon 
shall be corrected.'' Additionally, 49 CFR 396.11(c) states that, 
``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 likely affect the 
safety of operation of the vehicle.'' Section 396.9 also requires that 
a motor carrier shall certify that all repairs have been made and 
return the signed inspection form to the issuing agency within 15 days 
following the inspection. Furthermore, the North American Uniform Out-
of-Service Criteria states that ``violations other than out-of-service 
conditions detected during the inspection process will not preclude the 
completion of the current trip or dispatch. However, such violations 
must be corrected or repaired prior to redispatch.''
    The Upper Great Plains Transportation Institute provided comments 
to the docket on suggested revisions for Sec. 350.213, ``What must a 
CVSP include.'' The FMCSA agrees that the CVSP guidelines should be 
consistent with the Performance-Based MCSAP training. The following 
paragraphs have been amended: ``(a) A statement of the State agency 
goal or mission'' is amended to read ``(a) A General overview section 
that must include the following two items: (1) A statement of the State 
agency goal or mission.'' Paragraph ``(b)'' is now ``(2)'' under 
Paragraph ``(a)'' and the phrase ``comprehensive evaluation'' is 
changed to ``program summary.'' The sentence, ``Evaluation data should 
measure program progress in one-year increments'' has been deleted and 
replaced with, ``Data periods used must be consistent from year to 
year.'' In the next sentence of this paragraph the phrase ``chosen by 
the State'' is replaced with ``for which the State's data is current.'' 
The word ``evaluation'' that appears in the next sentence has been 
changed to ``summary.'' Paragraph (b) has been expanded to include 
descriptions of the State's activities related to removing impaired CMV 
drivers from the highways and interdicting controlled substances 
transported by CMVs (as required by Sec. 350.201(q)) and enforcing 
registration and financial responsibility requirements (as required by 
Sec. 350.201(t)). In paragraph (f), now paragraph (e), the second 
sentence has been replaced with ``Strategies may include education, 
enforcement, legislation, or technology/infrastructure.'' In paragraph 
(g), now paragraph (f), the second sentence has been completely 
deleted. To be consistent with the Performance-Based MCSAP training, a 
new paragraph (i) has been added. The Performance-Based MCSAP training 
specifies that each

[[Page 15100]]

State specific objective must be evaluated. The new paragraph (i) 
describes the information the States will discuss in this section of 
its CVSP. To be consistent with the Performance-Based MCSAP training, 
paragraphs (n) through (r) have been added to this section. Paragraphs 
(c) through (m) have been redesignated as paragraphs (b) through (g) 
and (j) through (m), respectively.
Size and Weight Enforcement
    Michigan and Oregon asked for a clarification regarding cost 
eligibility of size and weight enforcement at fixed sites.
    The MCSAP rule on this point has not changed since 1992. To be 
eligible for reimbursement, (Sec. 350.29(c)(5)) size and weight 
enforcement must be conducted at locations other than fixed weight 
facilities, at specific geographic locations where the weight of the 
vehicle can significantly affect the safe operation of the vehicle, or 
at seaports where intermodal shipping containers enter and exit the 
United States. These size and weight enforcement activities must be 
carried out in conjunction with an appropriate North American Standard 
Inspection and inspection report.

Consolidation of Appendices

    This rulemaking incorporates appendices A, B, and C into the 
regulatory text. The following table shows where each section of the 
amended regulations appear in the new format:

------------------------------------------------------------------------
             Old regulation                       New regulation
------------------------------------------------------------------------
350.1--Purpose.........................  350.103.
350.3--Definitions.....................  350.105.
350.5--Policy..........................  350.101.
350.7--Objective.......................  350.101.
350.9--Conditions for basic grant        350.107, 350.201.
 approval.
350.11--Adopting and enforcing
 compatible laws and regulations
 (generally):
    350.11(a)..........................  350.201(a).
    350.11(b)..........................  350.331(c).
    350.11(c)..........................  Removed.
    350.11(d)..........................  350.105 (compatible/
                                          compatibility).
    350.11(e)..........................  350.203.
    350.11(f)..........................  350.331(d).
    350.11(g)..........................  350.345.
    350.11(h)..........................  350.335(d).
    350.11(i)..........................  350.335(e).
350.13--State Enforcement Plan (SEP)     350.213.
 for a basic grant.
350.15--Certification of compliance by   350.209.
 State.
350.17--Maintenance of effort..........  350.301.
350.19--Grant application submission...  350.205.
350.21--Distribution of funds:
    350.21(a)..........................  350.303.
    350.21(b)..........................  350.305.
    350.21(c)..........................  350.323(a).
    350.21(d)..........................  350.323(b).
    350.21(e)-(f)......................  350.313, 350.315, 350.317,
                                          350.319, 350.321, 350.323,
                                          350.327, 350.329.
    350.31(g)..........................  350.307.
350.23--Acceptance of State Plan.......  350.205, 350.207.
350.25--Effect of failure to submit a    350.205, 350.207.
 satisfactory State Plan.
350.27--Procedure for withdrawal of      350.215.
 approval.
350.29--Eligible costs.................  350.309, 350.311, 350.315.
350 App A--Guidelines To Be Used in      350.213 the SEP has been
 Preparing State Enforcement Plan.        renamed the Commercial Vehicle
                                          Safety plan (CFSP).
350 App B--Form of State Certification.  350.211.
350 App C--Tolerance Guidelines for
 Adopting Compatible State Rules and
 Regulations:
    paragraph 1........................  Removed.
    paragraph (2)(a)...................  350.337.
    paragraph (2)(b)...................  350.337.
    paragraph (3)(a)...................  Removed.
    paragraph (3)(b)...................  350.341(a).
    paragraph (3)(c)...................  350.341(b).
    paragraph (3)(d)...................  350.341(c).
    paragraph (3)(d)(1)-(d)(11)........  350.343.
    paragraph (3)(e)...................  350.341(d).
    paragraph (3)(f)...................  350.341(e).
    paragraph (3)(g)...................  350.341(f).
    paragraph (3)(h)...................  350.341(g).
    paragraph (3)(i)...................  350.341(h).
    paragraph (3)(j)...................  Removed.
------------------------------------------------------------------------


[[Page 15101]]

Conforming Amendments

    This action amends various sections of 49 CFR part 355 to conform 
with changes to the MCSAP and 49 CFR part 350. Under Sec. 355.5, the 
terms ``compatible/compatibility'' and ``State'' are revised to be 
consistent with part 350. The acronym ``FMCSRs'' has been added to the 
definition for ``Federal Motor Carrier Safety Regulations'' and 
replaces ``FMCSR'' throughout this part. Section 355.21(c) now reflects 
the requirement that State laws and regulations be identical to the 
Hazardous Materials Regulations. The term ``Commercial Vehicle Safety 
Plan (CVSP)'' replaces ``Safety Enforcement Plan (SEP).'' Cross-
references to part 350 have been updated.
    The FMCSA has eliminated the last two sentences under the paragraph 
titled ``Definitions'' in Appendix A to Part 355--Guidelines for the 
Regulatory Review. States must continue to ensure that definitions of 
terms used in their laws and regulations are consistent with FMCSR 
definitions. We have simply removed the example term ``commercial motor 
vehicle.'' An interim final rule ``Federal Motor Carrier Safety 
Regulations; Definition of Commercial Motor Vehicle; Interim Final 
Rule'' published on September 3, 1999, at 64 FR 48510 revised the CMV 
definition under Sec. 390.5 to cover ``vehicles designed or used to 
transport more than 8 passengers (including the driver) for 
compensation.'' But the action exempts the operation of these small 
passenger-carrying vehicles from all of the FMCSRs for 6 months to 
allow time for the completion of a separate rulemaking action also 
published on September 3, 1999, at 64 FR 48518. Revising appendix A to 
reflect the new CMV definition is premature and potentially confusing 
to the States.

Rulemaking Analyses and Notices

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

    The FMCSA has determined that this action is not a significant 
regulatory action within the meaning of Executive Order 12866 or 
significant within the meaning of DOT regulatory policies and 
procedures. The revisions to the FMCSRs will not cause an annual impact 
on the economy of over $100 million, and they will not adversely affect 
a sector of the economy in a material way. The changes will not create 
an inconsistency or otherwise interfere with another agency's actions, 
nor do they raise novel legal or policy issues. These changes merely 
implement a recently enacted legislative mandate which directed the 
FMCSA to amend its regulations pertaining to the MCSAP. This final rule 
broadens the scope of the MCSAP beyond enforcement activities and 
programs by requiring participating States to assume greater 
responsibility for improving motor carrier safety. It revises the MCSAP 
funding distribution formula, creates a new incentive funding program, 
and requires States to develop performance-based CMV safety plans. 
Thus, in light of this analysis, especially the finding that the 
economic impact of this action is likely to be minimal, the FMCSA has 
determined 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 FMCSA has evaluated the effects of this rule on small 
entities. It is anticipated that this rulemaking will have little or a 
non-significant impact upon small entities. The changes merely 
implement TEA-21 provisions pertaining to the MCSAP affecting only 
States and local jurisdictions. This rule provides a process for making 
high priority activity and border activity funds available to local 
jurisdictions as well as MCSAP agencies. The basic conditions for local 
agencies to qualify for these funds are consistent with the conditions 
local agencies must now follow to receive funds through the MCSAP 
agency. Local agencies will not be required to participate unless they 
find it is in their best interest. The number of local agencies that 
would receive direct funding will be minimal since the FMCSA will 
provide grants directly to local agencies only where it is not possible 
to work through the lead MCSAP agency. Therefore, the FMCSA hereby 
certifies that this proposed action will not have a significant 
economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act

    This rule does not impose a Federal mandate resulting in the 
expenditure by State, local, and tribal governments, in the aggregate, 
or by the private sector, of $100 million or more in any one year (2 
U.S.C. 1531 et seq.).

Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) 
of Executive Order 12988, Civil Justice Reform, to minimize litigation, 
eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    We have analyzed this action under Executive Order 13045, 
Protection of Children from Environmental Health Risks and Safety 
Risks. This rule is not an economically significant rule and does not 
concern an environmental risk to health or safety that may 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This rule will not effect a taking of private property or otherwise 
have taking implications under Executive Order 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

Executive Order 13132 (Federalism)

    This action has been analyzed in acordance with the principles and 
criteria contained in Executive Order 13132 dated August 4, 1999, and 
it has been determined this action does not have a substantial direct 
effect or sufficient federalism implications on States that would limit 
the policymaking discretion of the States. The changes in this rule 
implement TEA-21 provisions. The MCSAP is a grant-in-aid type program 
whereby Federal financial assistance is provided to States. The basic 
nature of the program and the level of total funding for the program 
are not affected by these changes. Nothing in this document directly 
preempts any State law or regulation. Therefore, this rulemaking does 
not have sufficient Federalism implications to warrant the preparation 
of a Federalism assessment.

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

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, 
et. seq.), Federal agencies must obtain approval from the Office of 
Management and Budget (OMB) for each collection of information they 
conduct, sponsor, or require through regulations. In its March 9, 1999, 
notice of proposed rulemaking (NPRM) titled ``Motor Carrier Safety 
Assistance Program (MCSAP), the agency stated that this action might 
increase the number of respondents in the MCSAP information collection 
(OMB Control No. 2126-0010). The

[[Page 15102]]

agency has subsequently determined that the number of respondents would 
not change as a result of this rulemaking, and therefore, is not 
requesting any revisions to the currently approved collection which 
will expire on March 31, 2001. The NPRM specifically solicited comments 
regarding the information collections imposed by this action. The 
comments that were received are being addressed as a program element of 
the MCSAP and will not result in any changes to this information 
collection.

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 will 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 350

    Grant programs--transportation, Highway safety, Motor carriers.

49 CFR Part 355

    Administrative practice and procedure, Federal-State relations, 
Grant programs, Hazardous materials transportation.

    Issued on: March 14, 2000
Julie Cirillo,
Acting Deputy Administrator.

    In consideration of the foregoing, the FMCSA amends title 49, Code 
of Federal Regulations, chapter III, as follows:
    1. Part 350 is revised to read as follows:

PART 350--COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

Subpart A--General
Sec.
350.101   What is the Motor Carrier Safety Assistance Program 
(MCSAP)?
350.103   What is the purpose of this part?
350.105   What definitions are used in this part?
350.107   What jurisdictions are eligible for MCSAP funding?
350.109   What are the national program elements?
350.111   What constitutes ``traffic enforcement'' for the purpose 
of the MCSAP?
Subpart B--Requirements for Participation
350.201   What conditions must a State meet to qualify for Basic 
Program Funds?
350.203   [Reserved]
350.205   How and when does a State apply for MCSAP funding?
350.207   What response does a State receive to its CVSP submission?
350.209   How does a State demonstrate that it satisfies the 
conditions for Basic Program funding?
350.211   What is the format of the certification required by 
Sec. 350.209?
350.213   What must a State CVSP include?
350.215   What are the consequences for a State that fails to 
perform according to an approved CVSP or otherwise fails to meet the 
conditions of this part?
Subpart C--Funding
350.301   What level of effort must a State maintain to qualify for 
MCSAP funding?
350.303   What are the State and Federal shares of expenses incurred 
under an approved CVSP?
350.305   Are U.S. Territories subject to the matching funds 
requirement?
350.307   How long are MCSAP funds available to a State?
350.309   What activities are eligible for reimbursement under the 
MCSAP?
350.311   What specific items are eligible for reimbursement under 
the MCSAP?
350.313   How are MCSAP funds allocated?
350.315   How may Basic Program Funds be used?
350.317   What are Incentive Funds and how may they be used?
350.319   What are permissible uses of High Priority Activity Funds?
350.321   What are permissible uses of Border Activity Funds?
350.323   What criteria are used in the Basic Program Funds 
allocation?
350.325   [Reserved]
350.327   How may States qualify for Incentive Funds?
350.329   How may a State or a local agency qualify for High 
Priority or Border Activity Funds?
350.331   How does a State ensure its laws and regulations are 
compatible with the FMCSRs and HMRs?
350.333   What are the guidelines for the compatibility review?
350.335   What are the consequences if my State has laws or 
regulations incompatible with the Federal regulations?
350.337   How may State laws and regulations governing motor 
carriers, CMV drivers, and CMVs in interstate commerce differ from 
the FMCSRs and still be considered compatible?
350.339   What are tolerance guidelines?
350.341   What specific variances from the FMCSRs are allowed for 
State laws and regulations governing motor carriers, CMV drivers and 
CMVs engaged in intrastate commerce and not subject to Federal 
jurisdiction?
350.343   How may a State obtain a new exemption for State laws and 
regulations for a specific industry involved in intrastate commerce?
350.345   How does a State apply for additional variances from the 
FMCSRs?

    Authority: 49 U.S.C. 31100-31104, 31108, 31136, 31140-31141, 
31161, 31310-31311, 31502; and 49 CFR 1.73.

Subpart A--General


Sec. 350.101  What is the Motor Carrier Safety Assistance Program 
(MCSAP)?

    The MCSAP is a Federal grant program that provides financial 
assistance to States to reduce the number and severity of accidents and 
hazardous materials incidents involving commercial motor vehicles 
(CMV). The goal of the MCSAP is to reduce CMV-involved accidents, 
fatalities, and injuries through consistent, uniform, and effective CMV 
safety programs. Investing grant monies in appropriate safety programs 
will increase the likelihood that safety defects, driver deficiencies, 
and unsafe motor carrier practices will be detected and corrected 
before they become contributing factors to accidents. The MCSAP also 
sets forth the conditions for participation by States and local 
jurisdictions and promotes the adoption and uniform enforcement of 
safety rules, regulations, and standards compatible with the Federal 
Motor Carrier Safety Regulations (FMCSRs) and Federal Hazardous 
Material Regulations (HMRs) for both interstate and intrastate motor 
carriers and drivers.


Sec. 350.103  What is the purpose of this part?

    The purpose of this part is to ensure the Federal Motor Carrier 
Safety Administration (FMCSA), States, and other political 
jurisdictions work in partnership to establish programs to improve 
motor carrier, CMV, and driver safety to support a safe and efficient 
transportation system.


Sec. 350.105  What definitions are used in this part?

    10-year average accident rate means for each State, the aggregate 
number of large truck-involved fatal crashes (as reported in the 
Fatality Analysis Reporting System (FARS)) for a 10-year period divided 
by the aggregate vehicle miles traveled (VMT) (as defined by the 
Federal Highway Administration (FHWA)) for the same 10-year period.
    Accident rate means for each State, the total number of fatal 
crashes involving large trucks (as measured by the FARS for each State) 
divided by the total VMT as defined by the FHWA for each State for all 
vehicles.

[[Page 15103]]

    Agency means Federal Motor Carrier Safety Administration.
    Administrative Takedown Funds means funds deducted by the FMCSA 
each fiscal year from the amount made available for the MCSAP for 
expenses incurred in the administration of the MCSAP, including 
expenses to train State and local government employees.
    Administrator means Federal Motor Carrier Safety Administrator.
    Basic Program Funds means the total MCSAP funds less the High 
Priority Activity, Border Activity, Administrative Takedown, and 
Incentive Funds.
    Border Activity Funds means funds provided to States, local 
governments, and other persons carrying out programs, activities, and 
projects relating to CMV safety and regulatory enforcement supporting 
the North American Free Trade Agreement (NAFTA) at the U.S. border. Up 
to 5 percent of total MCSAP funds are available for these activities.
    Commercial motor vehicle (CMV) means a motor vehicle that has any 
of the following characteristics:
    (1) A gross vehicle weight (GVW), gross vehicle weight rating 
(GVWR), gross combination weight (GCW), or gross combination weight 
rating (GCWR) of 4,537 kilograms (10,001 pounds) or more.
    (2) Regardless of weight, is designed or used to transport 16 or 
more passengers, including driver.
    (3) Regardless of weight, is used in the transportation of 
hazardous materials and is required to be placarded pursuant to 49 CFR 
part 172, subpart F.
    Commercial vehicle safety plan (CVSP) means the document outlining 
the State's CMV safety objectives, strategies, activities and 
performance measures.
    Compatible or Compatibility means State laws and regulations 
applicable to interstate commerce and to intrastate movement of 
hazardous materials are identical to the FMCSRs and the HMRs or have 
the same effect as the FMCSRs. State laws applicable to intrastate 
commerce are either identical to, or have the same effect as, the 
FMCSRs or fall within the established limited variances under 
Sec. 350.341.
    High Priority Activity Funds means funds provided to States, local 
governments, and other persons carrying out activities and projects 
that directly support the MCSAP, are national in scope in that the 
successful activity or project could potentially be applied in other 
States on a national scale, and improve CMV safety and compliance with 
CMV safety regulations. Up to 5 percent of total MCSAP funds are 
available for these activities.
    Incentive Funds means funds awarded to States achieving reductions 
in CMV involved fatal accidents, CMV fatal accident rate, or meeting 
specified CMV safety program performance criteria.
    Large truck means a truck over 10,000 pounds gross vehicle weight 
rating including single unit trucks and truck tractors (FARS 
definition).
    Motor carrier means a for-hire motor carrier or private motor 
carrier. The term includes a motor carrier's agents, officers, or 
representatives responsible for hiring, supervising, training, 
assigning, or dispatching a driver or concerned with the installation, 
inspection, and maintenance of motor vehicle equipment or accessories 
or both.
    North American Standard Inspection means the methodology used by 
State CMV safety inspectors to conduct safety inspections of CMVs. This 
consists of various levels of inspection of the vehicle or driver or 
both. The inspection criteria are developed by the FMCSA in conjunction 
with the Commercial Vehicle Safety Alliance (CVSA), an association of 
States, Canadian Provinces, and Mexico whose members agree to adopt 
these standards for inspecting CMVs in their jurisdiction.


Sec. 350.107  What jurisdictions are eligible for MCSAP funding?

    All of the States, the District of Columbia, the Commonwealth of 
Puerto Rico, the Commonwealth of the Northern Mariana Islands, American 
Samoa, Guam, and the Virgin Islands are eligible to receive MCSAP 
grants directly from the FMCSA. For purposes of this subpart, all 
references to ``State'' or ``States'' include these jurisdictions.


Sec. 350.109  What are the national program elements?

    The national program elements include the following five 
activities:
    (a) Driver/vehicle inspections.
    (b) Traffic enforcement.
    (c) Compliance reviews.
    (d) Public education and awareness.
    (e) Data collection.


Sec. 350.111  What constitutes ``traffic enforcement'' for the purpose 
of the MCSAP?

    Traffic enforcement means enforcement activities of State or local 
officials, including stopping CMVs operating on highways, streets, or 
roads for violations of State or local motor vehicle or traffic laws 
(e.g., speeding, following too closely, reckless driving, improper lane 
change). To be eligible for funding through the grant, traffic 
enforcement must include an appropriate North American Standard 
Inspection of the CMV or driver or both prior to releasing the driver 
or CMV for resumption of operations.

Subpart B--Requirements for Participation


Sec. 350.201  What conditions must a State meet to qualify for Basic 
Program Funds?

    Each State must meet the following twenty-two conditions:
    (a) Assume responsibility for improving motor carrier safety and 
adopting and enforcing State safety laws and regulations that are 
compatible with the FMCSRs (49 CFR parts 390-397) and the HMRs (49 CFR 
parts 107 (subparts F and G only), 171-173, 177, 178 and 180), except 
as may be determined by the Administrator to be inapplicable to a State 
enforcement program.
    (b) Implement a performance-based program by the beginning of 
Fiscal Year 2000 and submit a CVSP which will serve as the basis for 
monitoring and evaluating the State's performance.
    (c) Designate, in its State Certification, the lead State agency 
responsible for implementing the CVSP.
    (d) Ensure that only agencies having the legal authority, 
resources, and qualified personnel necessary to enforce the FMCSRs and 
HMRs or compatible State laws or regulations are assigned to perform 
functions in accordance with the approved CVSP.
    (e) Allocate adequate funds for the administration of the CVSP 
including the enforcement of the FMCSRs, HMRs, or compatible State laws 
or regulations.
    (f) Maintain the aggregate expenditure of funds by the State and 
its political subdivisions, exclusive of Federal funds, for motor 
carrier and highway hazardous materials safety enforcement, eligible 
for funding under this part, at a level at least equal to the average 
expenditure for Federal or State fiscal years 1997, 1998, and 1999.
    (g) Provide legal authority for a right of entry and inspection 
adequate to carry out the CVSP.
    (h) Prepare and submit to the FMCSA, upon request, all reports 
required in connection with the CVSP or other conditions of the grant.
    (i) Adopt and use the reporting standards and forms required by the 
FMCSA to record work activities performed under the CVSP.
    (j) Require registrants of CMVs to declare, at the time of 
registration, their knowledge of applicable FMCSRs, HMRs, or compatible 
State laws or regulations.
    (k) Grant maximum reciprocity for inspections conducted under the 
North

[[Page 15104]]

American Standard Inspection through the use of a nationally accepted 
system that allows ready identification of previously inspected CMVs.
    (l) Conduct CMV size and weight enforcement activities funded under 
this program only to the extent those activities do not diminish the 
effectiveness of other CMV safety enforcement programs.
    (m) Coordinate the CVSP, data collection and information systems, 
with State highway safety programs under title United States Code 
(U.S.C.).
    (n) Ensure participation in SAFETYNET and other information systems 
by all appropriate jurisdictions receiving funding under this section.
    (o) Ensure information is exchanged with other States in a timely 
manner.
    (p) Emphasize and improve enforcement of State and local traffic 
laws and regulations related to CMV safety.
    (q) Promote activities in support of the national program elements 
listed in Sec. 350.109, including the following three activities:
    (1) Activities aimed at removing impaired CMV drivers from the 
highways through adequate enforcement of restrictions on the use of 
alcohol and controlled substances and by ensuring ready roadside access 
to alcohol detection and measuring equipment.
    (2) Activities aimed at providing an appropriate level of training 
to MCSAP personnel to recognize drivers impaired by alcohol or 
controlled substances.
    (3) Interdiction activities affecting the transportation of 
controlled substances by CMV drivers and training on appropriate 
strategies for carrying out those interdiction activities.
    (r) Enforce requirements relating to the licensing of CMV drivers, 
including checking the status of commercial drivers' licenses (CDL).
    (s) Require the proper and timely correction of all CMV safety 
violations noted during inspections carried out with MCSAP funds.
    (t) Enforce registration requirements under 49 U.S.C. section 13902 
and 49 CFR part 356 and financial responsibility requirements under 49 
U.S.C. sections 13906, 31138 and 31139 and 49 CFR part 387.
    (u) Adopt and maintain consistent, effective, and reasonable 
sanctions for violations of CMV, driver, and hazardous materials 
regulations.
    (v) Ensure that MCSAP agencies have policies that stipulate 
roadside inspections will be conducted at locations that are adequate 
to protect the safety of drivers and enforcement personnel.


Sec. 350.203  [RESERVED]


Sec. 350.205  How and when does a State apply for MCSAP funding?

    (a) The lead agency, designated by the Governor, must submit the 
State's CVSP to the Motor Carrier State Director, FMCSA, on or before 
August 1 of each year.
    (b) This deadline may, for good cause, be extended by the State 
Director for a period not to exceed 30 calendar days.
    (c) For a State to receive funding, the CVSP must be complete and 
include all required documents.


Sec. 350.207  What response does a State receive to its CVSP 
submission?

    (a) The FMCSA will notify the State, in writing, within 30 days of 
receipt of the CVSP whether:
    (1) The plan is approved.
    (2) Approval of the plan is withheld because the CVSP does not meet 
the requirements of this part, or is not adequate to ensure effective 
enforcement of the FMCSRs and HMRs or compatible State laws and 
regulations.
    (b) If approval is withheld, the State will have 30 days from the 
date of the notice to modify and resubmit the plan.
    (c) Disapproval of a resubmitted plan is final.
    (d) Any State aggrieved by an adverse decision under this section 
may seek judicial review under 5 U.S.C. chapter 7.


Sec. 350.209  How does a State demonstrate that it satisfies the 
conditions for Basic Program funding?

    (a) The Governor, the State's Attorney General, or other State 
official specifically designated by the Governor, must execute a State 
Certification as described in Sec. 350.211.
    (b) The State must submit the State Certification along with its 
CVSP, and supplement it with a copy of any State law, regulation, or 
form pertaining to CMV safety adopted since the State's last 
certification that bears on the items contained in Sec. 350.201 of this 
subpart.


Sec. 350.211  What is the format of the certification required by 
Sec. 350.209?

    The State's certification must be consistent with the following 
content:

    I (name), (title), on behalf of the State (or Commonwealth) of 
(State), as requested by the Administrator as a condition of 
approval of a grant under the authority of 49 U.S.C. 31102, as 
amended, do hereby certify as follows:
    1. The State has adopted commercial motor carrier and highway 
hazardous materials safety rules and regulations that are compatible 
with the FMCSRs and the HMRs.
    2. The State has designated (name of State CMV safety agency) as 
the lead agency to administer the CVSP for the grant sought and 
(names of agencies) to perform defined functions under the plan. 
These agencies have the legal authority, resources, and qualified 
personnel necessary to enforce the State's commercial motor carrier, 
driver, and highway hazardous materials safety laws or regulations.
    3. The State will obligate the funds or resources necessary to 
provide a matching share to the Federal assistance provided in the 
grant to administer the plan submitted and to enforce the State's 
commercial motor carrier safety, driver, and hazardous materials 
laws or regulations in a manner consistent with the approved plan.
    4. The laws of the State provide the State's enforcement 
officials right of entry and inspection sufficient to carry out the 
purposes of the CVSP, as approved, and provide that the State will 
grant maximum reciprocity for inspections conducted pursuant to the 
North American Standard Inspection procedure, through the use of a 
nationally accepted system allowing ready identification of 
previously inspected CMVs.
    5. The State requires that all reports relating to the program 
be submitted to the appropriate State agency or agencies, and the 
State will make these reports available, in a timely manner, to the 
FMCSA on request.
    6. The State has uniform reporting requirements and uses FMCSA 
designated forms for record keeping, inspection, and other 
enforcement activities.
    7. The State has in effect a requirement that registrants of 
CMVs declare their knowledge of the applicable Federal or State CMV 
safety laws or regulations.
    8. The State will maintain the level of its expenditures, 
exclusive of Federal assistance, at least at the level of the 
average of the aggregate expenditures of the State and its political 
subdivisions during State or Federal fiscal years 1997, 1998, and 
1999. These expenditures must cover at least the following four 
program areas, if applicable:
    (a) Motor carrier safety programs in accordance with 49 CFR 
350.301.
    (b) Size and weight enforcement programs.
    (c) Traffic safety.
    (d) Drug interdiction enforcement programs.
    9. The State will ensure that CMV size and weight enforcement 
activities funded with MCSAP funds will not diminish the 
effectiveness of other CMV safety enforcement programs.
    10. The State will ensure that violation fines imposed and 
collected by the State are consistent, effective, and equitable.
    11. The State will ensure it has a program for timely and 
appropriate correction of all violations discovered during 
inspections conducted using MCSAP funds.
    12. The State will ensure that the CVSP, data collection, and 
information systems are coordinated with the State highway safety 
program under title 23, U.S. Code. The name of the Governor's 
highway safety representative (or other authorized State official 
through whom coordination was accomplished) is ____________. (Name)
    13. The State participates in SAFETYNET and ensures information 
is exchanged with other States in a timely manner.

[[Page 15105]]

    14. The State has undertaken efforts to emphasize and improve 
enforcement of State and local traffic laws as they pertain to CMV 
safety.
    15. Ensure that MCSAP agencies have departmental policies 
stipulating that roadside inspections will be conducted at locations 
that are adequate to protect the safety of drivers and enforcement 
personnel.
    16. The State will ensure that requirements relating to the 
licensing of CMV drivers are enforced, including checking the status 
of CDLs.

Date-------------------------------------------------------------------
Signature--------------------------------------------------------------


Sec. 350.213  What must a State CVSP include?

    The State's CVSP must reflect a performance-based program, and 
contain the following eighteen items:
    (a) A general overview section that must include the following two 
items:
    (1) A statement of the State agency goal or mission.
    (2) A program summary of the effectiveness of the prior years' 
activities in reducing CMV accidents, injuries and fatalities, and 
improving driver and motor carrier safety performance. Data periods 
used must be consistent from year to year. This may be calendar year or 
fiscal year or any 12-month period of time for which the State's data 
is current. The summary must show trends supported by safety and 
program performance data collected over several years. It must identify 
safety or performance problems in the State and those problems must be 
addressed in the new or modified CVSP.
    (b) A brief narrative describing how the State program addresses 
the national program elements listed in Sec. 350.109. The plan must 
address these elements even if there are no planned activities in a 
program area. The rationale for the resource allocation decision must 
be explained. The narrative section must include a description of how 
the State supports the three activities identified in Sec. 350.201(q):
    (1) Activities aimed at removing impaired CMV drivers from the 
highways through adequate enforcement of restrictions on the use of 
alcohol and controlled substances and by ensuring ready roadside access 
to alcohol detection and measuring equipment.
    (2) Activities aimed at providing an appropriate level of training 
to MCSAP personnel to recognize drivers impaired by alcohol or 
controlled substances.
    (3) Interdiction activities affecting the transportation of 
controlled substances by CMV drivers and training on appropriate 
strategies for carrying out those interdiction activities.
    (4) Activities to enforce registration requirements under 49 U.S.C. 
13902 and 49 CFR part 365 and financial responsibility requirements 
under 49 U.S.C. 13906, 31138 and 31139 and 49 CFR part 387.
    (c) A definitive problem statement for each objective, supported by 
data or other information. The CVSP must identify the source of the 
data, and who is responsible for its collection, maintenance, and 
analysis.
    (d) Performance objectives, stated in quantifiable terms, to be 
achieved through the State plan. Objectives must include a measurable 
reduction in highway accidents or hazardous materials incidents 
involving CMVs. The objective may also include documented improvements 
in other program areas (e.g., legislative or regulatory authority, 
enforcement results, or resource allocations).
    (e) Strategies to be employed to achieve performance objectives. 
Strategies may include education, enforcement, legislation, use of 
technology and improvements to safety infrastructure.
    (f) Specific activities intended to achieve the stated strategies 
and objectives. Planned activities must be eligible under this program 
as defined in Secs. 350.309 and 350.311.
    (g) Specific quantifiable performance measures, as appropriate. 
These performance measures will be used to assist the State in 
monitoring the progress of its program and preparing an annual 
evaluation.
    (h) A description of the State's method for ongoing monitoring of 
the progress of its plan. This should include who will conduct the 
monitoring, the frequency with which it will be carried out, and how 
and to whom reports will be made.
    (i) An objective evaluation that discusses the progress towards 
individual objectives listed under the ``Performance Objectives'' 
section of the previous year's CVSP and identifies any safety or 
performance problems discovered. States will identify those problems as 
new objectives or make modifications to the existing objectives in the 
next CVSP.
    (j) A budget which supports the CVSP, describing the expenditures 
for allocable costs such as personnel and related costs, equipment 
purchases, printing, information systems costs, and other eligible 
costs consistent with Secs. 350.311 and 350.309.
    (k) A budget summary form including planned expenditures for that 
fiscal year and projected number of activities in each national program 
element, except data collection.
    (l) The results of the annual review to determine the compatibility 
of State laws and regulations with the FMCSRs and HMRs.
    (m) A copy of any new law or regulation affecting CMV safety 
enforcement that was enacted by the State since the last CVSP was 
submitted.
    (n) Executed State Certification as outlined in Sec. 350.211.
    (o) Executed MCSAP-1 form.
    (p) List of MCSAP contacts.
    (q) Annual Certification of Compatibility, Sec. 350.331.
    (r) State Training Plan.


Sec. 350.215  What are the consequences for a State that fails to 
perform according to an approved CVSP or otherwise fails to meet the 
conditions of this part?

    (a) If a State is not performing according to an approved plan or 
not adequately meeting conditions set forth in Sec. 350.201, the 
Administrator may issue a written notice of proposed determination of 
nonconformity to the Governor of the State or the official designated 
in the plan. The notice will set forth the reasons for the proposed 
determination.
    (b) The State will have 30 days from the date of the notice to 
reply. The reply must address the deficiencies or incompatibility cited 
in the notice and provide documentation as necessary.
    (c) After considering the State's reply, the Administrator will 
make a final decision.
    (d) In the event the State fails timely to reply to a notice of 
proposed determination of nonconformity, the notice becomes the 
Administrator's final determination of nonconformity.
    (e) Any adverse decision will result in immediate cessation of 
Federal funding under this part.
    (f) Any State aggrieved by an adverse decision under this section 
may seek judicial review under 5 U.S.C. chapter 7.

Subpart C--Funding


Sec. 350.301  What level of effort must a State maintain to qualify for 
MCSAP funding?

    (a) The State must maintain the average aggregate expenditure 
(monies spent during the base period of Federal or State fiscal years 
1997, 1998, and 1999) of State funds for motor carrier and highway 
hazardous materials safety enforcement purposes, in the year in which 
the grant is sought.
    (b) Determination of a State's level of effort must not include the 
following three things:
    (1) Federal funds received for support of motor carrier and 
hazardous materials safety enforcement.
    (2) State matching funds.
    (3) State funds used for federally sponsored demonstration or pilot 
CMV safety programs.

[[Page 15106]]

    (c) The State must include costs associated with activities 
performed during the base period by State or local agencies currently 
receiving or projected to receive funds under this part. It must 
include only those activities which meet the current requirements for 
funding eligibility under the grant program.


Sec. 350.303  What are the State and Federal shares of expenses 
incurred under an approved CVSP?

    (a) The FMCSA will reimburse up to 80 percent of the eligible costs 
incurred in the administration of an approved CVSP.
    (b) In-kind contributions are acceptable in meeting the State's 
matching share if they represent eligible costs as established by 49 
CFR part 18 or agency policy.


Sec. 350.305  Are U.S. Territories subject to the matching funds 
requirement?

    The Administrator waives the requirement for matching funds for the 
Virgin Islands, American Samoa, Guam, and the Commonwealth of the 
Northern Mariana Islands.


Sec. 350.307  How long are MCSAP funds available to a State?

    The funds obligated to a State will remain available for the rest 
of the fiscal year in which they were obligated and the next full 
fiscal year. The State must account for any prior year's unexpended 
funds in the annual CVSP. Funds must be expended in the order in which 
they are obligated.


Sec. 350.309  What activities are eligible for reimbursement under the 
MCSAP?

    The primary activities eligible for reimbursement are:
    (a) The five national program elements listed in Sec. 350.109 of 
this part.
    (b) Sanitary food transportation inspections performed under 49 
U.S.C. 5708.
    (c) The following three activities, when accompanied by an 
appropriate North American Standard Inspection and inspection report:
    (1) Enforcement of size and weight regulations conducted at 
locations other than fixed weight facilities, at specific geographical 
locations where the weight of the vehicle can significantly affect the 
safe operation of the vehicle, or at seaports where intermodal shipping 
containers enter and exit the United States.
    (2) Detection of the unlawful presence of controlled substances in 
a CMV or on the driver or any occupant of a CMV.
    (3) Enforcement of State traffic laws and regulations designed to 
promote the safe operation of CMVs.


Sec. 350.311  What specific items are eligible for reimbursement under 
the MCSAP?

    All reimbursable items must be necessary, reasonable, allocable to 
the approved CVSP, and allowable under this part and 49 CFR part 18. 
The eligibility of specific items is subject to review by the FMCSA. 
The following six types of expenses are eligible for reimbursement:
    (a) Personnel expenses, including recruitment and screening, 
training, salaries and fringe benefits, and supervision.
    (b) Equipment and travel expenses, including per diem, directly 
related to the enforcement of safety regulations, including vehicles, 
uniforms, communications equipment, special inspection equipment, 
vehicle maintenance, fuel, and oil.
    (c) Indirect expenses for facilities, except fixed scales, used to 
conduct inspections or house enforcement personnel, support staff, and 
equipment to the extent they are measurable and recurring (e.g., rent 
and overhead).
    (d) Expenses related to data acquisition, storage, and analysis 
that are specifically identifiable as program-related to develop a data 
base to coordinate resources and improve efficiency.
    (e) Clerical and administrative expenses, to the extent necessary 
and directly attributable to the MCSAP.
    (f) Expenses related to the improvement of real property (e.g., 
installation of lights for the inspection of vehicles at night). 
Acquisition of real property, land, or buildings are not eligible 
costs.


Sec. 350.313  How are MCSAP funds allocated?

    (a) After deducting administrative expenses authorized in 49 U.S.C. 
31104(e), the MCSAP funds are allocated as follows:
    (1) Up to 5 percent of the MCSAP funds appropriated for each fiscal 
year may be distributed for High Priority Activities and Projects at 
the discretion of the Administrator.
    (2) Up to 5 percent of the MCSAP funds appropriated for each fiscal 
year may be distributed for Border CMV Safety and Enforcement Programs 
at the discretion of the Administrator.
    (3) The remaining funds will be allocated among qualifying States 
in two ways:
    (i) As Basic Program Funds in accordance with Sec. 350.323 of this 
part,
    (ii) As Incentive Funds in accordance with Sec. 350.327 of this 
part.
    (b) The funding provided in paragraphs (a)(1) and (a)(2) of this 
section may be awarded through contract, cooperative agreement, or 
grant. The FMCSA will notify States if it intends to solicit State 
grant proposals for any portion of this funding.
    (c) The funding provided under paragraphs (a)(1) and (a)(2) of this 
section may be made available to State MCSAP lead agencies, local 
governments, and other persons that use and train qualified officers 
and employees in coordination with State motor vehicle safety agencies.


Sec. 350.315  How may Basic Program Funds be used?

    Basic Program Funds may be used for any eligible activity or item 
consistent with Secs. 350.309 and 350.311.


Sec. 350.317  What are Incentive Funds and how may they be used?

    Incentive Funds are monies, in addition to Basic Program Funds, 
provided to States that achieve reduction in CMV-involved fatal 
accidents, CMV fatal accident rate, or that meet specified CMV safety 
performance criteria. Incentive Funds may be used for any eligible 
activity or item consistent with Secs. 350.309 and 350.311.


Sec. 350.319  What are permissible uses of High Priority Activity 
Funds?

    (a) The FMCSA may generally use these funds to support, enrich, or 
evaluate State CMV safety programs and to accomplish the five 
objectives listed below:
    (1) Implement, promote, and maintain national programs to improve 
CMV safety.
    (2) Increase compliance with CMV safety regulations.
    (3) Increase public awareness about CMV safety.
    (4) Provide education on CMV safety and related issues.
    (5) Demonstrate new safety related technologies.
    (b) These funds will be allocated, at the discretion of the FMCSA, 
to States, local governments, and other organizations that use and 
train qualified officers and employees in coordination with State 
safety agencies.
    (c) The FMCSA will notify the States when such funds are available.
    (d) The Administrator may designate up to 5 percent of the annual 
MCSAP funding for these projects and activities.


Sec. 350.321  What are permissible uses of Border Activity Funds?

    (a) The FMCSA may generally use such funds to develop and implement 
a national program addressing CMV safety and enforcement activities 
along the United States' borders.
    (b) These funds will be allocated, at the discretion of the FMCSA, 
to States,

[[Page 15107]]

local governments, and other organizations that use and train qualified 
officials and employees in coordination with State safety agencies. The 
FMCSA will notify the States when such funds are available. The 
Administrator may designate up to 5 percent of the annual MCSAP funding 
for these projects and activities.


Sec. 350.323  What criteria are used in the Basic Program Funds 
allocation?

    (a) The funds are distributed proportionally to the States using 
the following four, equally weighted (25 percent), factors.
    (1) 1997 Road miles (all highways) as defined by the FHWA.
    (2) All vehicle miles traveled (VMT) as defined by the FHWA.
    (3) Population--annual census estimates as issued by the U.S. 
Census Bureau.
    (4) Special fuel consumption (net after reciprocity adjustment) as 
defined by the FHWA.
    (b) Distribution of Basic Program Funds is subject to a maximum and 
minimum allocation as illustrated in the Table to this section, as 
follows:

  Table to Sec.  350.323(b)--Basic Program Fund Allocation Limitations
------------------------------------------------------------------------
          Recipient            Maximum allocation    Minimum allocation
------------------------------------------------------------------------
States and Puerto Rico......  4.944% of the Basic   $350,000 or 0.44% of
                               Program Funds.        Basic Program
                                                     Funds, whichever is
                                                     greater.
------------------------------------------------------------------------
U.S. Territories............            $350,000 (fixed amount)
------------------------------------------------------------------------

Sec. 350.325  [Reserved]


Sec. 350.327  How may States qualify for Incentive Funds?

    (a) A State may qualify for Incentive Funds if it can demonstrate 
that its CMV safety program has shown improvement in any or all of the 
following five categories:
    (1) Reduction of large truck-involved fatal accidents.
    (2) Reduction of large truck-involved fatal accident rate or 
maintenance of a large truck-involved fatal accident rate that is among 
the lowest 10 percent of such rates of MCSAP recipients.
    (3) Upload of CMV accident reports in accordance with current FMCSA 
policy guidelines.
    (4) Verification of CDLs during all roadside inspections.
    (5) Upload of CMV inspection data in accordance with current FMCSA 
policy guidelines.
    (b) Incentive Funds will be distributed based upon the five 
following safety and program performance factors:
    (1) Five shares will be awarded to States that reduce the number of 
large truck-involved fatal accidents for the most recent calendar year 
for which data are available when compared to the 10-year average 
number of large truck-involved fatal accidents ending with the 
preceding year. The 10-year average will be computed from the number of 
large truck-involved fatal crashes, as reported by the FARS, 
administered by the National Highway Traffic Safety Administration 
(NHTSA).
    (2) Four shares will be awarded to States that reduce the fatal-
accident rate for the most recent calendar year for which data are 
available when compared to each State's average fatal accident rate for 
the preceding 10-year period. States with the lowest 10 percent of 
accident rates in the most recent calendar year for which data are 
available will be awarded three shares if the rate for the State is the 
same as its average accident rate for the preceding 10-year period.
    (3) Two shares will be awarded to States that upload CMV accident 
data within FMCSA policy guidelines.
    (4) Two shares will be awarded to States that certify their MCSAP 
inspection agencies have departmental policies that stipulate CDLs are 
verified, as part of the inspection process, through Commercial 
Driver's License Information System (CDLIS), National Law Enforcement 
Tracking System (NLETS), or the State licensing authority.
    (5) Two shares will be awarded to States that upload CMV inspection 
reports within current FMCSA policy guidelines.
    (c) The total of all States' shares awarded will be divided into 
the dollar amount of Incentive Funds available, thereby establishing 
the value of one share. Each State's incentive allocation will then be 
determined by multiplying the State's percentage participation in the 
formula allocation of Basic Program Funds, by the number of shares it 
received that year, multiplied by the dollar value of one share.
    (d) States may use Incentive Funds for any eligible CMV safety 
purpose.
    (e) Incentive Funds are subject to the same State matching 
requirements as Basic Program Funds.
    (f) A State must annually certify compliance with the applicable 
incentive criteria to receive Incentive Funds. A State must submit the 
required certification as part of its CVSP or as a separate document.


Sec. 350.329  How may a State or a local agency qualify for High 
Priority or Border Activity Funds?

    (a) States must meet the requirements of Sec. 350.201, as 
applicable.
    (b) Local agencies must meet the following nine conditions:
    (1) Prepare a proposal in accordance with Sec. 350.213, as 
applicable.
    (2) Coordinate the proposal with the State lead MCSAP agency to 
ensure the proposal is consistent with State and national CMV safety 
program priorities.
    (3) Certify that your local jurisdiction has the legal authority, 
resources, and trained and qualified personnel necessary to perform the 
functions specified in the proposal.
    (4) Designate a person who will be responsible for implementation, 
reporting, and administering the approved proposal and will be the 
primary contact for the project.
    (5) Agree to fund up to 20 percent of the proposed request.
    (6) Agree to prepare and submit all reports required in connection 
with the proposal or other conditions of the grant.
    (7) Agree to use the forms and reporting criteria required by the 
State lead MCSAP agency and/or the FMCSA to record work activities to 
be performed under the proposal.
    (8) Certify that the local agency will impose sanctions for 
violations of CMV and driver laws and regulations that are consistent 
with those of the State.
    (9) Certify participation in national data bases appropriate to the 
project.


Sec. 350.331  How does a State ensure its laws and regulations are 
compatible with the FMCSRs and HMRs?

    (a) A State must review any new law or regulation affecting CMV 
safety as soon as possible, but in any event immediately after 
enactment or

[[Page 15108]]

issuance, for compatibility with the FMCSRs and HMRs.
    (b) If the review determines that the new law or regulation is 
incompatible with the FMCSRs and/or HMRs, the State must immediately 
notify the Motor Carrier State Director.
    (c) A State must conduct an annual review of its laws and 
regulations for compatibility and report the results of that review in 
the annual CVSP in accordance with Sec. 350.213(l) along with a 
certification of compliance, no later than August 1 of each year. The 
report must include the following two items:
    (1) A copy of the State law, regulation, or policy relating to CMV 
safety that was adopted since the State's last report.
    (2) A certification, executed by the State's Governor, Attorney 
General, or other State official specifically designated by the 
Governor, stating that the annual review was performed and that State 
CMV safety laws remain compatible with the FMCSRs and HMRs. If State 
CMV laws are no longer compatible, the certifying official shall 
explain.
    (d) As soon as practical after the effective date of any newly 
enacted regulation or amendment to the FMCSRs or HMRs, but no later 
than three years after that date, the State must amend its laws or 
regulations to make them compatible with the FMCSRs and/or HMRs, as 
amended.


Sec. 350.333  What are the guidelines for the compatibility review?

    (a) The State law or regulation must apply to all segments of the 
motor carrier industry (i.e., for-hire and private motor carriers of 
property and passengers).
    (b) Laws and regulations reviewed for the CDL compliance report are 
excluded from the compatibility review.
    (c) Definitions of words or terms must be consistent with those in 
the FMCSRs and HMRs.
    (d) A State must identify any law or regulation that is not the 
same as the corresponding Federal regulation and evaluate it in 
accordance with the table to this section as follows:

            Table to Sec.  350.333--Guidelines for the State Law and Regulation Compatibility Review
----------------------------------------------------------------------------------------------------------------
 Law or regulation has same effect    Applies to interstate  Less stringent or more
as corresponding Federal regulation  or intrastate commerce         stringent             Action authorized
----------------------------------------------------------------------------------------------------------------
(1) Yes............................  ......................  ......................  Compatible--Interstate and
                                                                                      intrastate commerce
                                                                                      enforcement authorized.
(2) No.............................  Intrastate............  ......................  Refer to Sec.  350.341
(3) No.............................  Interstate............  Less stringent........  Enforcement prohibited.
(4) No.............................  Interstate............  More stringent........  Enforcement authorized if
                                                                                      the State can demonstrate
                                                                                      the law or regulation has
                                                                                      a safety benefit or does
                                                                                      not create an undue burden
                                                                                      upon interstate commerce
                                                                                      (See 49 CFR Part 355).
----------------------------------------------------------------------------------------------------------------

Sec. 350.335  What are the consequences if my State has laws or 
regulations incompatible with the Federal regulations?

    (a) A State that currently has compatible CMV safety laws and 
regulations pertaining to interstate commerce (i.e., rules identical to 
the FMCSRs and HMRs) and intrastate commerce (i.e., rules identical to 
or within the tolerance guidelines for the FMCSRs and identical to the 
HMRs) but enacts a law or regulation which results in an incompatible 
rule will not be eligible for Basic Program Funds nor Incentive Funds.
    (b) A State that fails to adopt any new regulation or amendment to 
the FMCSRs or HMRs within three years of its effective date will be 
deemed to have incompatible regulations and will not be eligible for 
Basic Program nor Incentive Funds.
    (c) Those States with incompatible laws or regulations pertaining 
to intrastate commerce and receiving 50 percent of their basic formula 
allocation on April 20, 2000 will continue at that level of funding 
until those incompatibilities are removed, provided no further 
incompatibilities are created.
    (d) Upon a finding by the FMCSA, based upon its own initiative or 
upon a petition of any person, including any State, that your State 
law, regulation or enforcement practice pertaining to CMV safety, in 
either interstate or intrastate commerce, is incompatible with the 
FMCSRs or HMRs, the FMCSA may initiate a proceeding under Sec. 350.215 
for withdrawal of eligibility for all Basic Program and Incentive 
Funds.
    (e) Any decision regarding the compatibility of your State law or 
regulation with the HMRs that requires an interpretation will be 
referred to the Research and Special Programs Administration of the DOT 
for such interpretation before proceeding under Sec. 350.215.


Sec. 350.337  How may State laws and regulations governing motor 
carriers, CMV drivers, and CMVs in interstate commerce differ from the 
FMCSRs and still be considered compatible?

    States are not required to adopt 49 CFR parts 398 and 399, subparts 
A through E and H of part 107, and Secs. 171.15 and 171.16, as 
applicable to either interstate or intrastate commerce.


Sec. 350.339  What are tolerance guidelines?

    Tolerance guidelines set forth the limited deviations from the 
FMCSRs allowed in your State's laws and regulations. These variances 
apply only to motor carriers, CMV drivers and CMVs engaged in 
intrastate commerce and not subject to Federal jurisdiction.


Sec. 350.341  What specific variances from the FMCSRs are allowed for 
State laws and regulations governing motor carriers, CMV drivers, and 
CMVs engaged in intrastate commerce and not subject to Federal 
jurisdiction?

    (a) A State may exempt a CMV from all or part of its laws or 
regulations applicable to intrastate commerce, provided that neither 
the GVW, GVWR, GCW, nor GCWR of the vehicle equals or exceeds 11,801 kg 
(26,001 lbs.). However, a State may not exempt a CMV from such laws or 
regulations if the vehicle:
    (1) Transports hazardous materials requiring a placard.
    (2) Is designed or used to transport 16 or more people, including 
the driver.
    (b) State laws and regulations applicable to intrastate commerce 
may not grant exemptions based upon the type of transportation being 
performed (e.g., for-hire, private, etc.).
    (c) A State may retain those exemptions from its motor carrier 
safety laws and regulations that were in effect before April, 1988, are 
still in effect, and apply to specific industries operating in 
intrastate commerce.
    (d) State laws and regulations applicable to intrastate commerce 
must not include exemptions based upon the distance a motor carrier or 
driver operates from the work reporting

[[Page 15109]]

location. This prohibition does not apply to those exemptions already 
contained in the FMCSRs nor to the extension of the mileage radius 
exemption contained in 49 CFR 395.1(e) from 100 to 150 miles.
    (e) Hours of service--State hours-of-service limitations applied to 
intrastate transportation may vary to the extent of allowing the 
following:
    (1) A 12-hour driving limit, provided driving a CMV after having 
been on duty more than 16 hours is prohibited.
    (2) Driving prohibitions for drivers who have been on duty 70 hours 
in 7 consecutive days or 80 hours in 8 consecutive days.
    (f) Age of CMV driver--All CMV drivers must be at least 18 years of 
age.
    (g) Grandfather clauses--States may provide grandfather clauses in 
their rules and regulations if such exemptions are uniform or in 
substantial harmony with the FMCSRs and provide an orderly transition 
to full regulatory adoption at a later date.
    (h) Driver qualifications:
    (1) Intrastate drivers who do not meet the physical qualification 
standards in 49 CFR 391.41 may continue to be qualified to operate a 
CMV in intrastate commerce if the following three conditions are met:
    (i) The driver was qualified under existing State law or regulation 
at the time the State adopted physical qualification standards 
compatible with the Federal standards in 49 CFR 391.41.
    (ii) The otherwise non-qualifying medical or physical condition has 
not substantially worsened.
    (iii) No other non-qualifying medical or physical condition has 
developed.
    (2) The State may adopt or continue programs granting variances to 
intrastate drivers with medical or physical conditions that would 
otherwise be non-qualifying under the State's equivalent of 49 CFR 
391.41 if the variances are based upon sound medical judgment combined 
with appropriate performance standards ensuring no adverse affect on 
safety.


Sec. 350.343  How may a State obtain a new exemption for State laws and 
regulations for a specific industry involved in intrastate commerce?

    The FMCSA strongly discourages exemptions for specific industries, 
but will consider such requests if the State submits documentation 
containing information supporting evaluation of the following 10 
factors:
    (a) Type and scope of the industry exemption requested, including 
percentage of industry affected, number of vehicles, mileage traveled, 
number of companies involved.
    (b) Type and scope of the requirement to which the exemption would 
apply.
    (c) Safety performance of that specific industry (e.g., accident 
frequency, rates and comparative figures).
    (d) Inspection information (e.g., number of violations per 
inspection, driver and vehicle out-of-service information).
    (e) Other CMV safety regulations enforced by other State agencies 
not participating in the MCSAP.
    (f) Commodity transported (e.g., livestock, grain).
    (g) Similar variations granted and the circumstances under which 
they were granted.
    (h) Justification for the exemption.
    (i) Identifiable effects on safety.
    (j) State's economic environment and its ability to compete in 
foreign and domestic markets.


Sec. 350.345  How does a State apply for additional variances from the 
FMCSRs?

    Any State may apply to the Administrator for a variance from the 
FMCSRs for intrastate commerce. The variance will be granted only if 
the State satisfactorily demonstrates that the State law, regulation or 
enforcement practice:
    (a) Achieves substantially the same purpose as the similar Federal 
regulation.
    (b) Does not apply to interstate commerce.
    (c) Is not likely to have an adverse impact on safety.

PART 355--[AMENDED]

    2. Revise the authority citation for 49 CFR part 355 to read as 
follows:

    Authority: 49 U.S.C. 504 and 31101 et seq.; 49 CFR 1.73.

    3. Amend Sec. 355.5 by revising the definitions of ``compatible or 
compatibility,'' ``Federal Motor Carrier Safety Regulations,'' and 
``State''; by adding a definition of ``Federal Hazardous Materials 
Regulations''; and by placing the definitions in alphabetical order, to 
read as follows:


Sec. 355.5  Definitions.

* * * * *
    Compatible or Compatibility means that State laws and regulations 
applicable to interstate commerce and to intrastate movement of 
hazardous materials are identical to the FMCSRs and the HMRs or have 
the same effect as the FMCSRs; and that State laws applicable to 
intrastate commerce are either identical to, or have the same effect 
as, the FMCSRs or fall within the established limited variances under 
Secs. 350.341, 350.343, and 350.345 of this subchapter.
    Federal Hazardous Materials Regulations (FMHRs) means those safety 
regulations which are contained in parts 107, 171-173, 177, 178 and 
180, except part 107 and Secs. 171.15 and 171.16.
    Federal Motor Carrier Safety Regulations (FMCSRs) means those 
safety regulations which are contained in parts 390, 391, 392, 393, 
395, 396, and 397 of this subchapter.
    State means a State of the United States, the District of Columbia, 
the Commonwealth of Puerto Rico, the Commonwealth of the Northern 
Mariana Islands, American Samoa, Guam and the Virgin Islands.
    4. Revise Sec. 355.21(c) to read as follows:


Sec. 355.21  Regulatory review.

* * * * *
    (c)  State review. (1) The State shall determine which of its laws 
and regulations pertaining to commercial motor vehicle safety are the 
same as the Federal Motor Carrier Safety or Federal Hazardous Materials 
Regulations. With respect to any State law or regulation which is not 
the same as the FMCSRs (FHMRs must be identical), the State shall 
identify such law or regulation and determine whether:
    (i) It has the same effect as a corresponding section of the 
Federal Motor Carrier Safety Regulations;
    (ii) It applies to interstate commerce;
    (iii) It is more stringent than the FMCSRs in that it is more 
restrictive or places a greater burden on any entity subject to its 
provisions.
    (2) If the inconsistent State law or regulation applies to 
interstate commerce and is more stringent than the FMCSRs, the State 
shall determine:
    (i) The safety benefits associated with such State law or 
regulation; and
    (ii) The effect of the enforcement of such State law or regulation 
on interstate commerce.
    (3) If the inconsistent State law or regulation does not apply to 
interstate commerce or is less stringent than the FMCSRs, the 
guidelines for participation in the Motor Carrier Safety Assistance 
Program in Secs. 350.341, 350.343, and 350.345 of this subchapter shall 
apply.
    5. Revise Sec. 355.23 to read as follows:


Sec. 355.23  Submission of results.

    Each State shall submit the results of its regulatory review 
annually with its certification of compliance under Sec. 350.209 of 
this subchapter. It shall submit the results of the regulatory review 
with the certification no later than August 1 of each year with the 
Commercial Vehicle Safety Plan (CVSP). The State shall include copies 
of pertinent laws and regulations.

[[Page 15110]]

    6. Amend appendix A to part 355 by revising the paragraph entitled 
``Definitions'' and by revising the heading to the paragraph ``Hours of 
Service'' and placing them in alphabetical order, to read as follows:

Appendix A to Part 355--Guidelines for the Regulatory Review

* * * * *

Definitions

    Definitions of terms must be consistent with those in the 
FMCSRs.
* * * * *

Hours of Service of Drivers

* * * * *

[FR Doc. 00-6819 Filed 3-20-00; 8:45 am]
BILLING CODE 4910-22-P