[Federal Register: August 20, 2004 (Volume 69, Number 161)]
[Rules and Regulations]
[Page 51589-51598]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20au04-14]
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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.
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\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).
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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.
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\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.
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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]