[Federal Register Volume 69, Number 161 (Friday, August 20, 2004)]
[Rules and Regulations]
[Pages 51589-51598]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-19155]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 381

[Docket No. FMCSA-98-4145]
RIN 2126-AA41


Federal Motor Carrier Safety Regulations; Waivers, Exemptions, 
and Pilot Programs

AGENCY: Federal Motor Carrier Safety Administration, DOT.

ACTION: Final rule.

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SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) adopts 
as final its interim regulations at 49 CFR part 381, consistent with 
section 4007 of the Transportation Equity Act for the 21st Century. The 
final rule establishes procedures applicants must follow to request 
waivers and apply for exemptions from the Federal Motor Carrier Safety 
Regulations and Commercial Driver's License requirements, and 
procedures to propose and manage pilot programs. In addition, it 
establishes procedures which govern how FMCSA will review, grant, or 
deny requests for waivers, applications for exemptions, and proposals 
for pilot programs. It also establishes requirements for publishing 
notice of exemption applications or proposals for pilot programs 
through the Federal Register and affording the public an opportunity 
for comment. As no revisions are necessary, the interim regulations at 
part 381 are adopted without change.

DATES: Effective September 20, 2004. Petitions for Reconsideration must 
be received by the agency not later than September 20, 2004.

FOR FURTHER INFORMATION CONTACT: Larry W. Minor, Chief, Vehicle and 
Roadside Operations Division (MC-PSV), Federal Motor CarrierSafety 
Administration, 400 Seventh Street, SW., Washington,DC 20590. Telephone 
(202) 366-4009.

SUPPLEMENTARY INFORMATION:

Copies of This Document and Other Related Information

     Docket: For access to the public docket, Internet users 
may access the U.S. DOT Docket Management System (DMS) facility to view 
or download comments received or background documents, by using the 
universal resource locator (URL) http://dms.dot.gov and typing the last 
four digits of the docket number of this rulemaking (FMCSA-98-4145); or 
go to the DMS facility, 400 Seventh Street, SW., (on the Plaza Level), 
Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday 
(except Federal holidays).
     You can also get an electronic copy of this document by 
accessing FMCSA's ``Rules and Regulations'' Web page at http://www.fmcsa.dot.gov; or accessing today's Federal Register from the 
Government Printing Office (GPO) Web page at http://www.gpoaccess.gov.

Privacy Act Statement

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review DOT's 
complete Privacy Act Statement in the Federal Register published on 
April 11, 2000 (Volume 65, Number 70; Pages 19477-78) or you may visit 
http://dms.dot.gov.

Small Entity Assistance

    The Small Business Regulatory Enforcement Fairness Act of 1996 
(SBREFA) requires each agency to respond to small entity requests for 
information or advice about compliance with statutes and regulations 
within its jurisdiction.
    FMCSA's emphasis on small business assistance extends to all of its 
headquarters and division offices. Therefore, any small business, 
organization, or governmental jurisdiction that has a question 
concerning this document may contact an FMCSA Division office in its 
State, or an FMCSA ServiceCenter for its geographic area. For addresses 
and phone number, go to http://www.fmcsa.dot.gov/aboutus/fieldoffs; 
call our toll free number at 1-800-832-5660, or send a FAX to (202) 
366-8842.

Background

Discussion of Interim Final Rule

    On June 9, 1998, the Transportation Equity Act for the 21st Century 
(TEA-21) (Pub. L. 105-178, 112 Stat. 107) was enacted. Section 4007 of 
TEA-21 amended 49 U.S.C. 31315 and 31136(e) concerning authority to 
grant waivers from the Federal Motor Carrier Safety Regulations 
(FMCSRs) to a person(s) seeking regulatory relief. Under sections 31315 
and 31136(e), FMCSA may grant a waiver or exemption relieving a person 
from complying in whole or in part with a regulation, if the agency 
determines it is in the public interest and would likely achieve a 
level of safety equivalent to, or greater than, the level that would be 
achieved by complying with the safety regulation. TEA-21 also permits 
FMCSA to conduct pilot programs to evaluate alternatives relating to 
its motor carrier, commercial motor vehicle (CMV), and driver safety 
regulations. The use of exemptions in pilot programs is administered 
under strict controls, to enable collection and analysis of data and 
preparation of a report to Congress. TEA-21 also made a clear 
distinction between ``waivers'' and ``exemptions'' and specified 
requirements for pilot programs.

Waivers

    TEA-21 authorizes FMCSA to grant short-term waivers for special 
situations without requesting public comment, and without providing 
public notice. Waivers require a ``public interest'' finding in 
addition to a finding of safety. Individual waivers may only be granted 
to a person for a specific unique, non-emergency event, for a period up 
to three months.

Exemptions

    TEA-21 directs the agency to publish notice of an exemption request 
in the Federal Register, announcing that a request has been filed and 
justification as to why the exemption is required. We must also afford 
the public a comment period and an opportunity to inspect the safety 
analysis and other relevant information. Before granting an exemption, 
we must publish a notice in

[[Page 51590]]

the Federal Register and provide the name of the person or class of 
persons who will receive the exemption, the specific regulations from 
which person(s) will be exempted and the time period, and all terms and 
conditions of the exemption. The agency's terms and conditions must 
ensure that the exemption will likely achieve a level of safety that is 
equivalent to, or greater than, the level that would be achieved by 
complying with the regulation.
    In addition, the agency must monitor the implementation of each 
exemption to ensure compliance with its terms and conditions.
    Alternatively, if FMCSA denies a request for exemption, we must 
publish a notice in the Federal Register identifying the person who was 
denied the exemption and the reasons for the denial. TEA-21 permits the 
option of publishing a notice for each denial of an exemption, or 
periodically publishing notices of all denials within a given period.
    The specific time limitation of an exemption is two years from the 
date of approval, but may be renewed.
    The agency is required to immediately revoke an exemption if--
    (1) The person fails to comply with the terms and conditions of the 
exemption;
    (2) The exemption has resulted in a lower level of safety than was 
maintained before the exemption was granted; or
    (3) Continuation of the exemption would not be consistent with the 
goals and objectives of the regulations issued under the authority of 
49 U.S.C. chapter 313, or 49U.S.C. 31136.

Pilot Programs

    TEA-21 authorizes the agency to conduct pilot programs to evaluate 
alternatives to regulations relating to motor carrier, CMV, and driver 
safety. These programs may include exemptions from one or more 
regulations. FMCSA must provide detailed information regarding a pilot 
program through the publication of a notice in the Federal Register, 
including exemptions being considered, and asking for comments before 
the effective date of the pilot program. We must ensure that safety 
measures in the pilot programs are designed to achieve a level of 
safety that is equivalent to, or greater than, the level of safety that 
would be achieved through compliance with the safety regulations. Each 
pilot program is limited to three years from the starting date.
    If a motor carrier, CMV, or driver fails to comply with the terms 
and conditions of the pilot program, FMCSA must immediately revoke 
participation by a carrier, CMV, or driver in the program. Likewise, if 
continuation of a pilot program is inconsistent with the safety goals 
and objectives of 49 U.S.C. chapter 313, or 49 U.S.C. 31136, we must 
immediately terminate that pilot program.
    At the conclusion of a pilot program, the agency must report its 
findings, conclusions, and recommendations to Congress, including 
suggested amendments to laws and regulations that would enhance motor 
carrier, CMV, and driver safety and improve compliance with the FMCSRs.

Public Meeting

    On August 20, 1998, a public meeting was held at DOT headquarters 
to discuss various issues related to implementing section 4007 of TEA-
21. By Federal Register notice, members of the public were notified of 
the meeting and also invited to submit written comments to the 
docket(63 FR 40387, July 29, 1998).

Interim Final Rule (IFR)

    On December 8, 1998, the agency published an IFR adding Part 381 to 
the FMCSRs to implement section 4007 of TEA-21(63 FR 67600). The IFR 
explained procedures that a person must follow when requesting a waiver 
and applying for an exemption to the FMCSRs. The IFR also described 
steps to be taken by the agency when it processes requests for waivers 
and applications for exemptions, and considers proposals for pilot 
programs. The public was afforded a 60-day comment period.

Comments on IFR and Agency Responses

    We received 20 comments on the IFR. The commenters are: Advocates 
for Highway and Auto Safety (Advocates); American Association of Motor 
Vehicle Administrators(AAMVA); American Automobile Association (AAA); 
District of Columbia Metropolitan Police Department 
(MetropolitanPolice); Georgetown University Law Center, Institute for 
Public Representation (Georgetown); Insurance Institute for Highway 
Safety (IIHS); International Brotherhood of Teamsters (IBT); Iowa 
Department of Transportation (Iowa); J. B. Hunt Transport, Inc. (J.B. 
Hunt); MassachusettsDepartment of State Police (Massachusetts); 
MichiganDepartment of State (Michigan); New Jersey Department of 
Transportation, Division of Motor Vehicles (New Jersey); NewYork State 
Department of Motor Vehicles (New York DMV); NewYork State Department 
of Transportation (New York DOT); OhioDepartment of Public Safety 
(Ohio); Owner-OperatorIndependent Drivers Association, Inc. (OOIDA); 
West VirginiaDepartment of Transportation, Division of Motor 
Vehicles(West Virginia); U.S. Equal Employment OpportunityCommission 
(EEOC); Vermont Agency of Transportation,Department of Motor Vehicles 
(Vermont); and, the WisconsinDepartment of Transportation (Wisconsin).
    The commenters were generally favorable to having regulations in 
the FMCSRs that concern waivers and exemptions, and pilot programs 
within FMCSA. However, most commenters had concerns about particular 
aspects of the IFR. We will discuss the comments by subject matter, 
followed by FMCSA's response.

Implementation of Section 4007 of TEA-21 by IFR

    Advocates argue the IFR was procedurally inadequate. They disagree 
with the agency's assertions that it was impracticable to publish a 
Notice of Proposed Rulemaking(NPRM), review the public comments, and 
issue a final rule prior to the statutory deadline. In essence, 
Advocates disagrees with the agency's reliance on the practice and 
procedure elements of the IFR as justification for its immediate 
adoption.
    FMCSA Response: We believe that the agency demonstrated compelling 
reasons, and exercised an appropriate use of authority under the 
AdministrativeProcedure Act (APA), 5 U.S.C. 553(b), in promulgating 49 
CFRPart 381. The APA permits an agency to waive the normal notice and 
comment requirements if the agency finds, for good cause, that it would 
be impracticable, unnecessary, or contrary to the public interest. 
Section 4007 of TEA-21 required the agency to implement regulations 
regarding the procedures for requesting an exemption, not later than 
180 days after the date of TEA-21's enactment on June 9, 1998. 
Therefore, the agency determined it was impracticable to publish a 
NPRM, review the comments received, and publish a final rule by the 
statutory deadline (December 9, 1998).
    Although an NPRM could have been published within the 180-day 
period, the agency believed it was unrealistic to assume that the 
rulemaking could have been completed by the statutory deadline, 
regardless of the number and nature of the comments. The solicitation 
of information through the public meeting held on August 20, 1998 was 
an appropriate alternative to issuing a NPRM, given the statutory 
deadline and

[[Page 51591]]

the administrative nature of the rulemaking. We considered remarks by 
meeting participants and written comments to the docket. Therefore, 
considering the statutory deadline, FMCSA did provide the public a 60-
day comment period in which to offer comments and suggestions on how 
the procedural rules should be developed to implement section 4007 of 
TEA-21.
    Consistent with section 4007 of TEA-21, the IFR established 
requirements for receiving and processing waivers and exemptions, and 
initiating and managing pilot programs. FMCSA believes the requirements 
are administrative in nature and only reflect agency practice and 
procedure, because the IFR did not establish pass-fail criteria such as 
crash rates, safety ratings, compliance review results, or driving 
records for persons requesting waivers or applying for exemptions. For 
these reasons, we believe there was good cause to waive notice and 
comment through a NPRM.
    Furthermore, FMCSA stands by a previous determination that there 
was good cause under 5 U.S.C. 553(d)(3) to make the IFR immediately 
effective upon publication. Since the IFR was published prior to the 
statutory deadline, delaying the effective date would have been 
inconsistent with implementing the statute by the deadline, or as soon 
as possible thereafter.

Hours of Service Rules

    IBT argues that FMCSA does not have statutory authority.to grant 
waivers and exemptions from the hours of service rules under 49 U.S.C. 
31502 (Requirements for Qualifications, Hours of Service, Safety, and 
EquipmentStandards). IBT believes that authority to issue waivers and 
exemptions and initiate pilot programs under 49 U.S.C. Chapter 313 (CMV 
Operators) or 49 U.S.C. 31136 is limited.
    FMCSA Response: Although the hours-of-service (HOS) regulations in 
49 CFR part 395 were originally promulgated under Sec.  204 of the 
Motor Carrier Act of 1935 (MCA) (now codified, in relevant part, at 49 
U.S.C. 31502), these regulations were reissued by law under the Motor 
Carrier Safety Act of 1984 (MCSA) (now codified at 49 U.S.C. 31136). 
The HOS rules are therefore eligible for waivers and exemptions.
    Section 206(a) of the MCSA required DOT to issue regulations 
ensuring, among other things, that ``(2) the responsibilities imposed 
upon operators of CMVs do not impair their ability to operate such 
vehicles safely; (3) the physical condition of operators of CMVs is 
adequate to enable them to operate such vehicles safely; and (4) the 
operation of CMVs does not have deleterious effects on the physical 
condition of such operators'' (codified, in slightly revised terms, at 
49 U.S.C. 31136(A)(2)-(4)). These provisions authorize the agency to 
adopt HOS regulations to prevent excess on-duty and driving time from 
degrading drivers'' ability to operate large vehicles safely.
    Although DOT was generally required to complete all necessary 
rulemaking within 18 months after MCSA's date of enactment, Sec.  
206(e) as recodified in 1994, provides that ``[i]f the Secretary does 
not issue regulations on CMV safety under this section, regulations on 
CMV safety prescribed by the Secretary before October 30, 1984, and in 
effect on October 30, 1984, shall be deemed in this subchapter to be 
regulations prescribed by the Secretary under this section'' (49 U.S.C. 
31136(d)).
    When the FHWA, FMCSA's predecessor agency, prepared to implement 
Sec.  206 of MCSA, it decided that significant changes to the HOS rules 
were not then required. FHWA published a final rule on May 19, 1988 (53 
FR 18042) making only minor revisions to 49 CFR part 395. Because that 
rule was issued considerably after the 18-month deadline in section 
206(e), the existing HOS rules, as amended by the May 19 rule, were and 
are deemed--by law pursuant to 49 U.S.C. 31136(d)--to be issued under 
49 U.S.C. 31136. Recognizing this fact, the May 19 rule amended the 
authority citation for Part 395 to refer to the MCSA (then codified as 
49 U.S.C. App. 2505,'' now as 49 U.S.C. 31136) as well as the MCA (then 
``49 U.S.C.3102,'' now 49 U.S.C. 31502).
    Therefore, IBT's argument is incorrect. Because 49 U.S.C. 31315 
allows waivers or exemptions of rules issued under 49 U.S.C. 31136 (or 
49 U.S.C. chapter 313) and the HOS rules are issued under section 
31136, FMCSA has statutory authority to grant waivers and exemptions 
from the HOS rules.

Regulations Ineligible for Waiver and Exemption

    Many commenters identified regulations for which waivers and 
exemptions should not be considered. For example, Advocates requests 
that Parts 383 (CDL Standards), 391 (Qualifications of Drivers), 392 
(Driving of CMVs), 393(Parts and Accessories Necessary For Safe 
Operation), 395 (Hours of Service of Drivers), 396 (Inspection, Repair, 
And Maintenance), and 399 (Step, Handhold, and Deck Requirements for 
CMVs) be removed from the list. Additionally, Advocates believes that 
Sec.  390.19 (Motor carrier identification report) and Sec.  390.21 
(Marking of CMVs) should be removed as well.
    OOIDA, AAMVA, Illinois, Michigan, and Ohio oppose exemptions, 
waivers, and pilot programs concerning Part 382 (Controlled Substances 
and Alcohol Use and Testing). Alternatively, OOIDA believes the agency 
should exclude only those sections of part 382 that provide privacy and 
protection for drivers required to participate in controlled substances 
and alcohol testing.
    Illinois and Michigan oppose waivers, exemptions, or pilot programs 
concerning part 391 (Qualifications of Drivers). IIHS opposes inclusion 
of the hours-of-service rules, and West Virginia is opposed to 
precluding the requirements of Sec.  390.21.

FMCSA Response

    FMCSA recognizes the commenters' safety concerns. However, there is 
no apparent safety-related reason to change the list of regulations for 
which waivers and exemptions may be granted. The list of regulations in 
Sec. Sec.  381.200, 381.300, and 381.400 is an indication that the 
agency will accept requests for waivers and exemptions and should not 
be construed as an indicator that the agency will grant waivers or 
exemptions which fail to satisfy the statutory requirements of TEA-21. 
FMCSA will review each request and waiver to ensure, to the greatest 
extent practicable, that they satisfy the statutory requirements. FMCSA 
believes it would be inappropriate to exclude safety regulations issued 
pursuant to 49 U.S.C. Chapter 313 and 31136 from consideration under 49 
CFR Part 381. FMCSA believes doing so would suggest the agency had 
predetermined that it is unlikely a person could develop an alternative 
means of achieving the safety outcomes provided by full compliance with 
specific regulations. Innovation is possible, and the regulations 
concerning waivers, exemptions, and pilot programs should not be so 
limited as to preclude consideration of alternative approaches to 
achieving or even improving motor carrier safety.
    Section 4007 of TEA-21 requires that the terms and conditions for 
all waivers and exemptions achieve a level of safety equivalent to or 
greater than what would be achieved by complying with the safety 
regulations. To satisfy this statutory test, persons requesting waivers 
or applying for exemptions must present a credible alternative to the 
regulation and explain how that alternative would achieve an equivalent 
or greater level of safety. If the request or exemption were 
effectively less

[[Page 51592]]

stringent than the applicable regulation, it would be difficult to 
demonstrate compliance with the statutory test. If there is 
insufficient information or data for FMCSA to conclude that the waiver 
or exemption would satisfy the statutory test, the agency must not 
grant the waiver or exemption.
    We continue to exclude the accident register requirements (Sec.  
390.15) from the list of regulations eligible for a waiver or 
exemption. The agency believes it has a responsibility to monitor the 
crash involvement of entities operating under the terms of a waiver.
    We continue to retain the Motor Carrier Identification Report (Form 
MCS-150) requirement under Sec.  390.19 as one of the regulations that 
could be waived. The agency believes using that report to gather 
information on entities that have not previously operated CMVs in 
interstate commerce, and do not intend to do so after the waiver period 
expires, is of no apparent benefit. Information from Form MCS-150 will 
be used to create a file in the Motor Carrier Management Information 
System (MCMIS), a database containing safety information on interstate 
motor carrier compliance reviews and roadside inspection results, and 
CMV crashes. Entities benefiting from this action could be certain 
intrastate motor carriers that are not subject to State requirements to 
complete the MCS-150 form, and businesses or groups that rarely (except 
for unique, non-emergency events) operate CMVs.
    Several States now require their intrastate motor carriers to 
complete Form MCS-150 and to obtain a USDOT identification number. 
These motor carriers are listed in MCMIS as intrastate-only carriers. 
The addition of these motor carriers to MCMIS enables States and the 
FMCSA to work together in determining the number of active motor 
carriers operating in the U.S., and to monitor their safety 
performance. The intrastate motor carriers subject to State 
requirements for completing Form MCS-150 should already have completed 
a Form MCS-150 prior to applying for a waiver to conduct a short-term 
operation in interstate commerce. At the end of the waiver period, the 
intrastate motor carriers would continue to be subject to State 
requirements. Further, since the agency will be able to identify these 
entities from information submitted as part of the waiver application, 
the submission of Form MCS-150 would be redundant.
    As for exemptions, FMCSA requires intrastate motor carriers and 
non-motor carrier entities to complete Form MCS-150 and, under Sec.  
390.21, to mark all CMVs. We believe an entity that chooses to operate 
a CMV in interstate commerce for more than 3 months should be treated 
as an interstate motor carrier for purposes of MCMIS. Since exemptions 
provide regulatory relief for up to two years, and may be renewed, it 
is important that all CMVs operating in interstate commerce under the 
terms of the exemption be marked.
    For exemptions granted as part of a pilot program, FMCSA uses the 
same list of regulations provided in Sec.  381.300, What is an 
exemption? We use the same list because there is no apparent reason 
that participants in a pilot program for up to three years should be 
treated differently from interstate motor carriers required to complete 
Form MCS-150 and to mark their CMVs.

Define the Term ``Equivalent''

    West Virginia believes the agency needs to define ``equivalent.'' 
As West Virginia stated:

    When we discuss safety issues on the nation's highways, 
government, industry, and any associated party should have an 
established baseline for which the discussion is to be based upon in 
order to make fair comparisons. The establishing of any such 
baseline or definition of equivalent terms can be developed in the 
rulemaking process. This baseline or definition of equivalent should 
be one that can be uniformly applied in most if not all safety 
regulations.

    EEOC believes the legislative history suggests the term 
``equivalent'' is intended to ``describe a reasonable expectation that 
safety not be compromised.'' EEOC urged the agency to adopt a 
regulatory definition that reflects congressional intent.
    Advocates disagrees with the agency's use of language in the IFR 
preamble to describe the ``equivalent or greater safety'' standard. 
Advocates argues the agency is precluded from granting waivers and 
exemptions, and conducting pilot programs on the basis of an 
unspecified, free-floating or ad hoc characterization of equivalent or 
greater safety.
    FMCSA Response: We do not believe it is necessary to include a 
definition of ``equivalent'' in order to effectively implement section 
4007 of TEA-21. Moreover, we agree withEEOC that the legislative 
history suggests the term ``equivalent'' is intended to describe a 
reasonable expectation that safety not be compromised. However, we do 
not believe that persons who intend to request waivers, apply for 
exemptions, or propose pilot programs need a regulatory definition to 
understand that the agency will not grant any of the above if there is 
reason to believe that safety will be compromised. A definition of 
``equivalent'' would not serve as a substitute for an analysis of the 
potential safety impacts of a given request for a waiver, application 
for an exemption, or proposal for a pilot program. Furthermore, FMCSA 
believes that adopting a definition for ``equivalent'' would not 
increase the likelihood there will be agreement among the agency, 
persons seeking waivers, exemptions, or pilot programs, or interested 
parties as to whether the terms and conditions of a request would 
compromise safety. The agency is solely responsible for making the 
final determination based on all available information.
    The interim regulations have been in effect for five years. During 
that time, the agency has effectively applied the standard for a 
reasonable expectation that waivers, exemptions, and pilot programs 
would not compromise safety. FMCSA believes a regulatory definition of 
the term ``equivalent'' would not provide a quantitative standard which 
could be used to assess all waivers, exemptions, or pilot programs. 
FMCSA continues to adhere to congressional intent that there is a 
reasonable expectation that safety would not be compromised.

Role of States

    Most of the State agencies and AAMVA expressed concern about the 
role of the States in the waiver and exemption process. As AAMVA 
stated:

    Of most concern to the motor vehicle and law enforcement 
community is receiving ample notification of a proposed waiver or 
exemption prior to approval. It is critical to have advance notice, 
preferably not less than 90 days, to allow affected agencies at the 
State level to share information with their traffic stop or 
inspection officials. Michigan is concerned that the Federal rule 
preempts any State laws which may conflict with the waiver or 
exemption granted by FMCSA. Michigan believes Federal rules undercut 
State authority and ability to enforce its own requirements, which 
may be stricter than the Federal mandates. Michigan also believes it 
is unrealistic to expect the States will be able to ``disengage'' 
their existing regulations whenever an exception or waiver is 
granted.

    Michigan believes the FMCSA system of notification, as described in 
the IFR preamble, would not ensure that all interested parties, 
particularly licensing, registering, and enforcing States, are kept 
informed and have opportunity to comment on the applicant's safety 
performance and specific exemption being sought. Michigan argues States 
need to know details about when, why, and how waivers, exemptions, and 
pilot programs prior to being implemented.
    West Virginia emphasized the importance of communication between 
FMCSA and the States. West Virginia

[[Page 51593]]

believes open and timely communication provides an opportunity for 
``fair and adequate consideration of all partners' ideas and 
concepts.''
    New Jersey, Vermont, and New York DOT and DMV also expressed 
concern that States have an opportunity to learn of any proposal prior 
to FMCSA approval, so that they have an opportunity to understand, 
comment, and react appropriately.
    FMCSA Response: FMCSA is committed to its safety partnership with 
State agencies. State agencies play a vital role ensuring the safe 
operation of CMVs in the U.S. However, the agency does not plan to 
provide States with pre-notification of its decisions on waiver 
requests, exemption applications, pilot program proposals, nor engage 
in discussions or deliberations with State agencies about these 
matters, in a forum that is not open to public participation. Such 
actions would be inconsistent with the principles of the Administrative 
Procedure Act (5 U.S.C. 551 et. seq.). Discussions or deliberations 
between agency personnel and third parties that are intended to 
influence agency decisions, should be transparent. Limiting opportunity 
for comment to certain parties, while intentionally excluding all other 
interested parties, would be inappropriate.
    FMCSA continues to work with State agencies to ensure adequate 
notification of its decisions when the information is first made 
available to the general public. We continue to seek public comment on 
applications for exemptions and proposals for pilot programs through 
notice in the Federal Register. The notice-and-comment procedure is in 
the public interest, so that all interested parties have an equal 
opportunity to comment.
    FMCSA does not expect State agencies to bear responsibility for 
implementing section 4007 of TEA-21. We welcome State participation, to 
the extent States have resources to assist FMCSA in monitoring the 
safety performance of persons who are granted waivers or exemptions, or 
are allowed to participate in pilot programs.
    As for FMCSA decisions to grant waivers and exemptions, or initiate 
pilot programs, the agency neither requires nor requests States to 
adopt compatible regulations, or to abandon more stringent safety 
regulations. First, the scope of waivers, exemptions and pilot programs 
is usually very limited in terms of the specific requirements for which 
alternative approaches to achieving safety are being considered. 
Second, the population of motor carriers and drivers is limited, 
usually through eligibility criteria for exemptions and pilot programs. 
In the case of waivers, the statutory requirement that waivers be 
issued only for non-emergency and unique events, and be limited in 
scope and circumstances, suggests that there will not be a large 
population of drivers or carriers covered by waivers at any given time. 
Given the statutory constraints, it is unlikely the agency would grant 
a waiver or exemption, or initiate a pilot program so broad in scope 
that States would be forced to amend or revise laws or regulations to 
accommodate those carriers and drivers covered by the waiver, 
exemption, or pilot program.
    As 49 U.S.C. 31315(d) provides, no State shall enforce any law or 
regulation that conflicts with or is inconsistent with a waiver, 
exemption, or pilot program while the waiver, exemption or pilot 
program is in effect. Therefore, preemption of State rules applies only 
with respect to persons operating under a waiver or exemption, or 
participating in a pilot program. This means all motor carriers and 
drivers not operating under a waiver or exemption, or participating in 
a pilot program, must continue complying with all applicable State laws 
and regulations. Amending or revising State laws or regulations would 
be impractical, since such amendment or revision would be limited to 
drivers or carriers operating under waiver, exemption, or pilot 
programs only. To amend or revise State motor carrier safety laws or 
regulations that result in less stringent requirements than the 
applicable FMCSRs would be inconsistent with the Motor Carrier Safety 
AssistanceProgram (MCSAP) regulations, and, in some cases, would 
subject such rules to preemption pursuant to 49 U.S.C. 31141(c)(3). The 
agency's MCSAP regulations (49 CFR Part 350) concern eligibility for 
Federal funding to supportState motor carrier safety programs.

Documentation of Waiver or Exemption Onboard CMVs

    Iowa believes the regulations should explicitly require that 
persons granted a waiver must carry documentation issued by the FMCSA 
and provide the documentation to State officials during any traffic 
stop or roadside inspection. Vermont requests that paperwork concerning 
the waiver or exemption be with the driver or carrier and available for 
review during roadside inspections. OOIDA believes it is important to 
adopt procedures and generate documentation for each waiver, exemption, 
or pilot program granted, so that carriers and drivers can be 
expeditiously identified to Federal and State enforcement officials as 
participants in a Federal program that exempts them from Federal and 
conflicting State motor carrier safety regulations.
    FMCSA Response: FMCSA agrees with the commenters. We usually 
require persons operating under the terms and conditions of waivers, 
exemptions, or pilot programs to carry copies of FMCSA-issued documents 
to identify them as such. The only exceptions to date have been 
exemptions granted to motor carriers operating certain vehicles 
manufactured by the Ford Motor Company (Ford) and General Motors 
Corporation (GM), concerning fuel tank fill rates and certification 
labels on fuel tanks.\1\ In those cases, the agency published 
information about the make, model and vehicle identification numbers 
(VINs) of the vehicles covered by the exemption. Since the vehicle 
manufacturers applied for the exemption on behalf of the customers 
operating the vehicles, developing a list of all vehicles and motor 
carriers operating these vehicles was unnecessary, given the nature of 
the exemption. FMCSA concluded that use of the make, model, and range 
of VINs was sufficient for enforcement personnel to determine whether a 
given vehicle was covered by the exemption.
---------------------------------------------------------------------------

    \1\ The exemption concerning fuel tank fill rates and 
certification labels for vehicles manufactured by Ford was published 
on December 20, 1999 (64 FR 71184). The exemption concerning fuel 
tank fill rates and certification labels on vehicles manufactured by 
GM was published on April 26, 2000 (65 FR 24531).
---------------------------------------------------------------------------

Driver Physical Qualifications

    Several commenters discussed the use of exemptions and pilot 
programs for driver physical qualifications. As EEOC stated:

    It is encouraging that the waiver and exemption provisions of 
section 4007 and [FMCSA's] interim implementing regulations require 
individualized assessment of the safety-related qualifications of 
persons who otherwise would be denied employment opportunities 
pursuant to blanket categorical exclusions under the FMCSRs. 
Individualized assessment of qualifications is one of the hallmarks 
of the Americans with Disabilities Act [ADA]. Indeed, the ADA's 
purposes include ensuring that qualified individuals with 
disabilities are not denied equal employment opportunity by virtue 
of exclusionary qualification standards.

    J.B. Hunt recommends that pilot programs should be initiated to 
allow motor carriers to investigate whether more stringent medical 
standards could improve public safety.
    Georgetown believes several of the physical standards, in 
particular hearing and vision, are discriminatory and violate the 
government's obligations

[[Page 51594]]

under section 504 of the Rehabilitation Act. Georgetown recommends the 
agency should continue to reexamine those standards and revise them 
based on data concerning the safety of drivers who are monocular or 
whose hearing does not meet existing standards.
    Additionally, Georgetown believes that the waivers, exemptions, and 
pilot program regulations do not provide adequate guidance for a driver 
with a disability, who seeks to establish he or she meets the 
requirements for an exemption. Georgetown argues that an individual 
driver seeking an exemption from part 391 will have no idea what to 
provide the agency. Georgetown also argues that the procedures in Part 
381 are inappropriate, since detailed procedures for persons seeking 
exemptions from the vision standard has been established. Georgetown 
believes the agency should fully disclose the vision exemption process.
    FMCSA Response: We believe part 381 provides adequate guidance for 
motor carriers and drivers who are interested in pursuing a waiver, 
exemption, or pilot program concerning physical qualifications for 
drivers. Since the physical qualifications rules concern medical issues 
that require an individualized assessment by qualified medical 
professionals, developing a one-size-fits-all set of procedures for the 
range of medical conditions which a waiver, exemption, or pilot program 
may be requested would be impractical.
    As to whether generic guidance for specific categories of physical 
qualifications issues can be developed, the agency has initiated 
programs to accommodate persons with conditions covered by those 
categories. For example, the agency has a vision exemption program for 
drivers with an eye that fails to meet current vision standards. 
Interested persons need only contact the agency for detailed guidance 
on how to apply for an exemption. On September 3, 2003 (68 FR 52441), 
FMCSA published a notice of final determination to begin an exemption 
program for insulin dependant diabetic drivers. The notice provides the 
eligibility criteria for drivers who intend to apply for a diabetes 
exemption. The notice also provides instructions on how to obtain 
additional information needed to apply for the exemption. The physical 
qualifications process is intended to ensure that each driver is given 
individual attention and guidance based on his or her medical 
circumstances. FMCSA believes this is the most effective manner to 
assist drivers, and to ensure that each exemption granted achieves a 
level of safety equivalent to, or greater than, the level of safety 
that would be achieved through full compliance with the physical 
qualifications rules under part 391.
    J.B. Hunt commented on employers having the opportunity to explore 
more stringent physical qualifications as a means of improving safety. 
The FMCSRs do not prohibit motor carriers from establishing policies 
that are more stringent than the safety regulations (49 CFR 390.3(d). 
Therefore, employers wanting to establish more stringent medical 
examination procedures and pass-fail criteria may do so without 
requesting a waiver, applying for an exemption, or proposing a pilot 
program.

Public Notification of Waivers

    According to Advocates, the agency's procedures for administering 
waivers are insufficient to ensure both public awareness and safety. 
Advocates argues the agency has a responsibility to notify the public 
when a waiver from specific parts of the FMCSRs has been awarded, 
identify the carriers or drivers awarded the waiver, the waiver period, 
the public interest finding by the agency, and the finding that the 
waiver is likely to achieve a level of safety that is equivalent to, or 
greater than, the level of safety that would be obtained in the absence 
of the waiver.
    IBT noted the public should be informed of the agency's disposition 
of waiver requests promptly after a decision is made.
    AAA also believes it is important for the agency to communicate 
with the public about waivers, including publishing a notice in the 
Federal Register for waivers that have been granted or denied.
    FMCSA Response: FMCSA understands commenters' intent to make 
information about waivers readily available to the public. 
Nevertheless, we believe there would not be much public benefit 
associated with the effort. FMCSA receives a small number of requests 
for waivers each year, and only a few of those have been granted. There 
is no discernible public benefit to using limited agency resources to 
manage a public docket on requests for waivers which, if granted, are 
limited to no more than three months in duration. Depending on the 
specific event, waivers may cover a period as short as a few hours. 
Also, the scope of each waiver is likely to be unique and cover a small 
number of drivers or motor carriers.
    Given the statutory constraints for granting waivers, the specific 
nature of waivers, and the relatively small number granted, FMCSA does 
not plan to publish decisions on waivers.

Compliance Monitoring of Persons Granted Waivers or Exemptions

    Advocates disagrees with the agency's decision to avoid additional 
roadside inspections and compliance reviews of carriers or commercial 
drivers receiving waivers or exemptions. As Advocates stated:

    Simply awarding exemptions and establishing initial conditions 
under which they shall operate is insufficient oversight and 
monitoring to ensure that the legislative goal of providing adequate 
safety countermeasures has been met. [FMCSA] cannot award exemptions 
and simply wait for their statutory time limit to expire. The agency 
has an affirmative obligation to oversee the operation of 
exemptions. A presumption that drivers and carriers will receive no 
more oversight through compliance reviews or roadside inspections to 
ensure that safety has not been compromised, despite approved, 
selective non-compliance with specific parts of the FMCSRs, is 
neither a responsible approach to the heavy safety duties generally 
imposed upon the agency by the statute, nor is it adequate 
conformity to the legislative direction provided by the statute.

    FMCSA Response: FMCSA agrees with Advocates that granting 
exemptions with terms and conditions would not, by itself, satisfy the 
agency's obligations to monitor the safety performance of persons 
granted exemptions or allowed to participate in pilot programs. 
However, Advocates characterization of the agency's oversight of 
waivers, exemptions, and pilot programs does not accurately portray how 
the agency handles its responsibilities. FMCSA provides an appropriate 
level of safety oversight for all exemptions granted, which includes 
the Home Heating Oil Pilot Program (July 13, 2001; 66 FR 36823),\2\ the 
only pilot program initiated since implementation of section 4007 of 
TEA-21. Oversight consists of reviewing roadside inspection and crash 
data, driving records for participating drivers, and all information 
that exemption grantees and pilot program participants are required to 
submit to the agency during the period the exemption or pilot program 
is in effect. FMCSA may

[[Page 51595]]

exercise its statutory authority under 49 U.S.C. 506 to begin an 
investigation any time there is reason to believe there are violations 
of the safety regulations, or of the terms and conditions of a waiver, 
exemption, or pilot program. Furthermore, 49 U.S.C. 31315(b)(2) 
requires FMCSA to immediately revoke an exemption if: (1) The person 
fails to comply with the terms and conditions of the exemption, (2) the 
exemption has resulted in a lower level of safety than was maintained 
before the exemption was granted, or (3) continuation of the exemption 
would not be consistent with the goals and objectives of 49 U.S.C. 
Chapter 313 or 49 U.S.C. 31136. Section 31315(c)(3) provides similar 
authority for revocation of participation of a motor carrier, 
commercial motor vehicle, or driver for failure to comply with the 
terms and conditions of the pilot program, or if continued 
participation would not be consistent with the goals and objectives of 
49 U.S.C. Chapter 313 or 49 U.S.C. 31136.
---------------------------------------------------------------------------

    \2\ FMCSA announced the initiation of a pilot program to grant 
an exemption from the weekly hours-of-service restrictions for 
drivers of CMVs making home heating oil deliveries that occur within 
a 100 air-mile radius of a central terminal or distribution point, 
during winter months. During the pilot program, which ended 
recently, participating motor carriers were allowed to ``restart'' 
calculations for the 60-or 70-hour rule, whichever applies, after 
the driver has an off-duty period encompassing two consecutive 
nights off-duty that include the period of midnight to 6 a.m.
---------------------------------------------------------------------------

    FMCSA has granted 910 vision exemptions since 1998. As a result of 
the agency's on-going monitoring activities, 19 exemptions were revoked 
for bad driving (the drivers contributed to accidents, had their 
licenses suspended or revoked, or received an excessive number of 
moving violations), and 11 were canceled for failure to submit required 
information. In addition, 20 drivers were denied renewals after the 
first two-year period because their driving records did not meet the 
safety level required by the statute (equivalent to, or better than, 
the level of safety that would be achieved by complying with the 
regulations).
    FMCSA believes it has the tools to effectively monitor persons 
operating under the terms and conditions of a waiver or exemption, or 
participating in a pilot program, and to take appropriate action for 
failure to comply with the requirements of the program. However, FMCSA 
does not believe motor carriers, CMVs, or drivers should be subjected 
to additional inspections or audits solely because a waiver or 
exemption has been granted, or participation in a pilot program has 
been approved. We believe the incentives for implementing innovative 
approaches to achieving safety performance goals would be overshadowed 
if the flexibility provided by the waiver, exemption or pilot program 
were coupled with more rigorous or frequent enforcement activities. We 
believe using Federal and State resources to conduct more frequent 
inspections and audits could adversely impact enforcement programs 
intended to identify and remove from service unsafe CMVs and drivers, 
as well as the resources used to target motor carriers that have 
demonstrated poor safety performance. Enforcement resources should be 
targeted at those motor carriers, drivers and vehicles that are most 
likely to pose a safety risk, not at potentially discouraging private-
sector efforts to explore innovative approaches to achieving safety 
performance goals.

Adoption of Interim Regulations

    FMCSA has not made any changes to its interim regulations based on 
the comments. On October 1, 2001, FMCSA made technical amendments to 
the interim regulations in Part 381 to remove references to the Federal 
Highway Administration, the Office of Motor Carrier and Highway Safety, 
and the Office of Motor Carrier Research and Standards (66 FR 4986, 
49872). Part 381 remains divided into six subparts:
    Subpart A--General describes the purpose and applicability of part 
381, and defines certain terms used throughout the part;
    Subpart B--Procedures for Requesting Waivers provides a plain-
language description of waivers, the procedures for requesting a waiver 
and the process FMCSA will use to review waiver requests;
    Subpart C--Procedures for Applying for Exemptions provides a plain-
language description of exemptions, the procedures for applying for an 
exemption, the process FMCSA will use to review exemption applications, 
and the conditions under which FMCSA will revoke an exemption;
    Subpart D--Initiation of Pilot Programs explains how pilot programs 
operate, and how a pilot program can be initiated (which includes a 
detailed list of informationFMCSA requests from individuals who would 
like to recommend that the agency start a pilot program);
    Subpart E--Administration of Pilot Programs codifies in the FMCSRs 
a plain-language version of the statutory requirements concerning 
FMCSA's administration of pilot programs so that all interested parties 
will have a convenient reference; and
    Subpart F--Preemption of State Rules codifies in the FMCSRs a 
plain-language version of the Federal preemption of any State law and 
regulation that conflicts with or is inconsistent with respect to a 
person operating under a waiver, exemption, or pilot program.

Regulations for Waiver and Exemption

    In accordance with section 4007 of TEA-21, FMCSA is authorized to 
grant waivers and exemptions from any FMCSRs under statutory authority 
of 49 U.S.C. 31136 and chapter 313. However, section 4007 of TEA-21 
does not authorize FMCSA to grant waivers and exemptions from 
regulations issued under other statutes. For example, the financial 
responsibility regulations at 49 CFR part 387, which were issued under 
49 U.S.C. 31138 and 31139, pertain to transportation of passengers and 
property, respectively. FMCSA also does not have authority to grant 
waivers and exemptions from other requirements such as surety bonds and 
policies of insurance for motor carriers and property brokers, and 
surety bonds and policies of insurance for freight forwarders. These 
requirements, which were transferred from the former ICC, are now 
codified at 49 CFR part 387. These requirements are based on statutory 
authority at 49 U.S.C. 13101, 13301, 13906, and 14701.
    In another example, FMCSA does not have authority to grant a waiver 
or exemption from 49 CFR 396.25,Qualifications of Brake Inspectors. 
This regulation establishes minimum qualifications for motor carrier 
employees responsible for the inspection, repair, and maintenance of 
CMV brake systems, and was required by the Truck and Bus Safety and 
Regulatory Reform Act of 1988 (49U.S.C. 31137(b)).
    To assist the motor carrier industry and the general public in 
identifying the requirements for which waivers and exemptions may be 
granted, FMCSA is retaining the list in Sec. Sec.  381.200, 381.300, 
and 381.400 which define a waiver, exemption, and pilot program, 
respectively. The list of regulations for which a waiver or exemption 
could be granted includes:
    (1) Part 382 Controlled Substances and Alcohol Use and Testing;
    (2) Part 383 Commercial Driver's License Standards; Requirements 
and Penalties;
    (3) Sec.  390.19 Motor Carrier Identification Report;
    (4) Sec.  390.21 Marking of Commercial Motor Vehicles;
    (5) Part 391 Qualifications of Drivers;
    (6) Part 392 Driving of Commercial Motor Vehicles;
    (7) Part 393 Parts and Accessories Necessary for Safe Operation;
    (8) Part 395 Hours of Service of Drivers;
    (9) Part 396 Inspection, Repair, and Maintenance (except Sec.  
396.25); and
    (10) Part 399 Step, Handhold, and Deck Requirements.
    FMCSA excluded the accident register requirements, 49 CFR 390.15, 
from the list of regulations eligible for a waiver or exemption because 
the agency believes it has a responsibility to

[[Page 51596]]

monitor the crash involvement of entities operating under the terms of 
a waiver.
    FMCSA retains the motor carrier identification report(Form MCS-150) 
requirement at 49 CFR 390.19 as one of the rules that may be waived. We 
continue to believe there is no apparent benefit to gathering 
information on entities that have not previously operated CMVs in 
interstate commerce and do not intend to do so after the term of the 
waiver expires.
    For exemptions, FMCSA requires intrastate motor carriers and non-
motor carrier entities to complete FormMCS-150 (Sec.  390.19), and to 
mark all CMVs (Sec.  390.21) operating in interstate commerce under the 
terms of the exemption because exemptions provide regulatory relief for 
up to two years, and may be renewed.

Summary of Procedures and Requirements

    Requests for a waiver or applications for exemption should be 
addressed or hand-carried to the Administrator of the FMCSA. Such 
requests or applications need not be in any particular form, but should 
be typed or clearly hand-printed and include basic information, such as 
the identity of the person to be covered by the waiver or exemption, 
the name of the motor carrier or other entity responsible for using or 
operating CMVs during the waiver or exemption time period, and the 
motor carrier or other entity's principal place of business. The 
request or application should include a statement of: The event or CMV 
operation for which the waiver or exemption will be used; justification 
as to why the waiver or exemption is required; the regulation from 
which the applicant is requesting relief; estimates of the total number 
of drivers and CMVs that will be operated under the terms and 
conditions of the waiver or exemption; and an explanation of how the 
recipient of the waiver or exemption would ensure that a level of 
safety would be achieved that is equivalent to, or greater than, the 
level of safety that would be obtained by complying with the 
regulation. As for exemption applications, the written request must 
also include an assessment of the safety impacts the exemption may 
have, such as the impacts that would be experienced if the exemption is 
not granted, and include a copy of all research reports, technical 
papers, and other publications and documents referenced in the 
application.
    The complete list of information to be included in the requests for 
waivers and applications for exemptions is provided in Sec.  381.210, 
How do I request a waiver?, and Sec.  381.310, How do I apply for an 
exemption?. These requirements are consistent with the statutory 
language in TEA-21.

Review of Waiver Requests

    The Office of Policy and Program Development is responsible for 
reviewing waiver requests and making recommendations to the 
Administrator. A copy of the decision signed by the Administrator will 
be sent to the applicant. It will include the terms and conditions of 
the waiver, or the reason(s) for denial of the waiver.

Review of Exemption Applications

    The review process for exemption applications differs because of 
the requirements in section 4007 of TEA-21. TheOffice of Policy and 
Program Development reviews exemption applications. After FMCSA reviews 
an application for completeness, we will publish a notice in the 
FederalRegister requesting public comments regarding the application. 
After the comments are reviewed, the Office of Policy and Program 
Development will make a recommendation to the Administrator. 
Thereafter, FMCSA will publish a final notice of determination in the 
Federal Register.

Initiation and Management of Pilot Programs

    Although TEA-21 does not require FMCSA to develop regulations 
concerning pilot programs, we are retaining, in subparts D and E of 
part 381, information describing how to propose a pilot program, and 
statutory requirements for managing a pilot program. FMCSA believes 
that including information about pilot programs in the FMCSRs provides 
a more convenient reference to the motor carrier industry and the 
general public than does Title 49 of the United StatesCode. The 
regulations indicate that FMCSA has authority to initiate pilot 
programs after publishing notice and providing opportunity for public 
comment. They also indicate the types of information that interested 
parties should submit to the agency, if they would like to recommend a 
pilot program. The information presented in subpart E of part 381 is 
intended to be a plain-language version of the statutory requirements 
for the administration of pilot programs.

Preemption of State Rules

    Section 4007(d) of TEA-21 indicates that during the time period 
that a waiver, exemption, or pilot program is in effect, no State shall 
enforce a law or regulation that conflicts with or is inconsistent with 
the waiver, exemption, or pilot program. FMCSA is retaining the 
preemption language in part 381, and will also include the language in 
the waiver documents and Federal Register notices concerning exemptions 
and pilot programs. The agency continues to believe this approach will 
ensure that State officials are notified about the Federal preemption 
authority. Including such language in the waiver, and in the exemption 
and pilot program notices, will enable motor carriers to present 
inspectors with one document which informs them of the terms and 
conditions of the waiver, exemption, or pilot program. This document 
will also advise the inspectors that State laws and regulations that 
conflict with the waiver, exemption or pilot program are automatically 
preempted, and the duration of the preemption.

Rulemaking Analyses and Notices

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

    This action is not a significant regulatory action within the 
meaning of Executive Order 12866, or significant within the meaning of 
the U.S. Department of Transportation's regulatory policies and 
procedures. This action adopts as final, interim regulations contained 
in 49 CFR part 381, concerning rules and procedures for handling 
requests for waivers and applications for exemptions, and the 
initiation and administration of pilot programs. These rules will help 
promote increased cooperation between the private sector and the 
government by providing a mechanism for exploring alternatives to 
certain safety regulations, while ensuring a level of safety equivalent 
to, or greater than, the level obtained through compliance with the 
regulations. We believe adopting the interim regulations at part 381 
will result in incremental, although not substantial, economic benefits 
in cases where the alternatives provide a more cost-effective approach 
to ensuring motor carrier safety. FMCSA believes the economic impact of 
this final rule to be minimal. Comments were requested on this subject 
in the IFR, but none were received. Therefore, a full regulatory 
evaluation is not required.

Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (5 U.S.C. 601 et 
seq., as amended by the Small Business Regulatory Enforcement Fairness 
Act (SBREFA) of 1996), we evaluated the effects of this final rule on 
small entities

[[Page 51597]]

and determined that it does not have a significant economic impact on a 
substantial number of small entities. As discussed in the section 
above, this rule adopts interim regulations concerning requests for 
waivers, applications for exemptions from the FMCSRs, and the 
initiation and administration of pilot programs. The provisions 
concerning waivers and exemptions will be especially beneficial to 
small entities, since these entities may be more in need of regulatory 
relief than larger companies. The regulations were written in question-
and-answer format using plain language to help ensure that small 
entities understand how to request a waiver and apply for an exemption, 
and how the agency will handle such requests and applications. The 
provisions concerning pilot programs are likely to be less beneficial 
to small entities. Pilot programs would generally require a large 
number of participating motor carriers and drivers willing to operate 
under identical terms and conditions. By contrast, waivers and 
exemptions may be carrier- or driver-specific and therefore better 
suited to the needs of small entities. As with the IFR, this final rule 
does not require small entities to take any actions unless they request 
a waiver, apply for an exemption, or participate in a pilot program. 
The information that would be required for a waiver or an exemption has 
been kept to a minimum. For this reason, FMCSA certifies this final 
action will not have a significant economic impact on a substantial 
number of small entities.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 [44 U.S.C. 3501 et seq.] does 
not apply, because this final rule does not contain information 
collection requirements subject to Office of Management and Budget 
(OMB) approval. However, waivers, exemptions, and pilot programs 
include certain information collection requirements as part of the 
terms and conditions for the regulatory relief granted. In addition, 
the agency is required by section 4007 of TEA-21 to monitor the 
implementation of exemptions to ensure compliance with the terms and 
conditions, and to ensure sufficient recordkeeping by participants in 
pilot programs to facilitate the collection and analysis of data. 
Therefore, FMCSA will consider the information collection requirements 
for any special recordkeeping requirements associated with the waiver, 
exemption, or pilot program, and, if necessary, request approval from 
OMB.

National Environmental Policy Act (NEPA)

    The agency has analyzed this action for the purpose of the National 
Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). We 
have determined under our environmental procedures Order 5610.1, 
published on March 1, 2004, that this action is categorically excluded 
(CE) under Appendix 2, paragraph 6(b.) of the Order from further 
environmental documentation. This CE relates to regulations describing 
FMCSA's procedures that persons applying for a waiver, requesting an 
exemption, and proposing a pilot program must follow. The regulations 
also explain what procedures FMCSA will use to evaluate the waiver 
application, exemption request, or proposed pilot program, including 
notifying the public, for the purpose of ensuring transportation 
safety. In addition, the agency has determined that the action includes 
no extraordinary circumstances that would have any effect on the 
quality of the environment. Thus, the action does not require an 
environmental impact statement.
    We have also analyzed this action under the Clean Air Act, as 
amended (CAA) section 176(c), (42 U.S.C. 7401 et seq.) and implementing 
regulations promulgated by the Environmental Protection Agency. We have 
determined that approval of this action is exempt from the CAA's 
General Conformity requirement since it pertains only to requirements 
persons must follow to request waivers and exemptions from the FMCSRs, 
and sets forth procedures the FMCSA will use to process these requests 
for waivers, applications for exemptions and those to initiate pilot 
programs. We also determined that this action will not result in any 
emissions increase, nor will it have any potential to result in 
emissions that are above the general conformity rule's minimum emission 
threshold levels. Moreover, it is reasonably foreseeable that the rule 
will not increase total commercial motor vehicle mileage, change the 
routing of commercial motor vehicles, how commercial motor vehicles 
operate or the commercial motor vehicle fleet-mix of motor carriers.

Energy Supply, Distribution, or Use

    The FMCSA has analyzed this action under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined that it is not a ``significant 
energy action,'' because it is not a significant regulatory action 
under Executive Order 12866, and it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy.

Unfunded Mandates Reform Act

    Title II of the Unfunded Mandates Reform Act of 1995 requires each 
Federal agency to prepare a written statement assessing the effects of 
any Federal mandate in a proposed or final rule that may result in an 
expenditure of $100 million or more (adjusted annually for inflation) 
in any one year by State, local, and tribal governments, in the 
aggregate, or by the private sector. This final rule does not contain 
such a mandate, and the requirements of Title II do not apply.

Civil Justice Reform

    We reviewed this rule under Executive Order 12988, Civil Justice 
Reform, and determined it meets applicable standards to minimize 
litigation, eliminate ambiguity, and reduce burden.

Protection of Children

    We analyzed this rule under Executive Order 13045, Protection of 
Children From Environmental Health Risks andSafety Risks. This rule is 
not economically significant and does not concern an environmental risk 
to the health or safety of children.

Taking of Private Property

    FMCSA certifies that this rule will not affect a taking of private 
property or otherwise involve taking implications, under Executive 
Order 12630, Governmental Actions and Interference with 
Constitutionally ProtectedProperty Rights.

Intergovernmental Review of Federal Programs

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

Federalism

    FMCSA has analyzed this final rule in accordance with the 
principles and criteria contained in Executive Order 13132 
(Federalism). We have determined that this rule does not have a 
substantial direct effect on States, nor would it limit the 
policymaking discretion of the States. Nothing in this document 
preempts any State law or regulation.
    Although the rule itself does not preempt State and local laws and

[[Page 51598]]

regulations, the waivers and exemptions that could be granted under the 
authority of 49 U.S.C. 31136(e) and 31315 would preempt such laws or 
regulations, if they conflict with or are inconsistent with the terms 
and conditions of the waivers or exemptions. Also, exemptions granted 
as part of a pilot program would preempt State and local laws and 
regulations which conflict with or are inconsistent with the terms and 
conditions of the pilot program.
    FMCSA will consider the preemptive effect of each waiver prior to 
granting the waiver. With regard to exemptions and pilot programs, 
State and local governments will have the opportunity to respond to the 
Federal Register notices required by section 4007 of TEA-21 and inform 
FMCSA of concerns about preemption during the time period that an 
exemption or pilot program would be in effect.

List of Subjects in 49 CFR Part 381

    Motor carriers.

Final Rule

0
The interim regulations published December 8, 1998 at 63 FR 67600, as 
amended on October 1, 2001 at 66 FR 49867, Part 381 of Subchapter B, 
Chapter III of Title 49 of the Code of Federal Regulations, are adopted 
without further revision.

    Issued on: August 17, 2004.
Warren E. Hoemann,
Deputy Administrator.
[FR Doc. 04-19155 Filed 8-19-04; 8:45 am]
BILLING CODE 4910-EX-P