Attachment A - Final Rule: Waivers, Exemptions and Pilot Programs (63 FR 67600 December 8, 1998)

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Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations

judicial review, unless the objection
arises after the comment period allowed
for in the proposal.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Hydrocarbons,
Incorporation by reference, Nitrogen
dioxide, Ozone.
Note: Incorporation by reference of the
State Implementation Plan for the State of
Rhode Island was approved by the Director
of the Federal Register on July 1, 1982.
Dated: November 13, 1998.
John P. DeVillars,
Regional Administrator, Region I.

Part 52 of chapter I, title 40 of the
Code of Federal Regulations is amended
as follows:

§ 52.2086

Emission inventories

*

*
*
*
*
(d) Minor revisions to the Rhode
Island 1990 base year emission
inventory were submitted to EPA on
September 21, 1998. The revised
emission estimates were prepared in
accordance with EPA guidance, and are
approved into the State’s SIP.
[FR Doc. 98–32415 Filed 12–7–98; 8:45 am]
BILLING CODE 6560–50–P

DEPARTMENT OF DEFENSE
Department of the Air Force

PART 52—[AMENDED]

Authority: 42 U.S.C. 7401 et seq.

Subpart 00—Rhode Island
2. Section 52.2070 is amended by
revising paragraph (c)(50) to read as
follows:
§ 52.2070

*

Identification of plan

*
*
*
*
(c) * * *
(50) Revisions to the State
Implementation Plan submitted by the
Rhode Island Department of
Environmental Management on
September 21, 1998. The revisions
consist of the State’s 15 Percent plan
and Contingency plan. The EPA is
approving the calculation of the
required emission reductions, and the
emission reduction credit claimed from
surface coating operations, printing
operations, plant closures, cutback
asphalt, synthetic pharmaceutical
manufacturing, automobile refinishing,
consumer and commercial products,
architectural and industrial
maintenance coatings, stage II vapor
recovery, reformulated gasoline in onroad and off-road engines, tier I motor
vehicle controls, and low emitting
vehicles. EPA is taking no action at this
time on the emission reduction credit
claim made for the Rhode Island
automobile inspection and maintenance
program.
(i) Incorporation by reference.
(A) Letter from the Rhode Island
Department of Environmental
Management dated September 21, 1998
submitting a revision to the Rhode
Island State Implementation Plan.
3. Section 52.2084 is amended by
removing and revising paragraph (a)(2).
4. Section 52.2086 is amended by
adding paragraph (d) to read as follows:

Federal Highway Administration
49 CFR Parts 381 and 383
[FHWA Docket No. FHWA–98–4145]
RIN 2125–AE48

Federal Motor Carrier Safety
Regulations; Waivers, Exemptions,
and Pilot Programs; Rules and
Procedures
Federal Highway
Administration (FHWA), DOT.
ACTION: Interim final rule; request for
comments.
AGENCY:

48 CFR Part 5316
1. The authority citation for part 52
continues to read as follows:

DEPARTMENT OF TRANSPORTATION

Types of Contracts
Department of the Air Force,
Department of Defense
AGENCY:
ACTION:

Final rule.

The Department of the Air
Force is amending Title 48, Chapter 53
of the CFR by removing Part 5316,
Types of Contracts. This rule is removed
because it does not meet the
requirement for codification. It was
revised as part of the Federal
Acquisition Regulation Part 15 rewrite,
and was changed in the AFFARS on an
interim basis by Contracting Policy
memo 93-C–02 on January 8, 1998. It
contains internal operating procedures
that will be finalized in AFAC 96–2.
SUMMARY:

EFFECTIVE DATE:

December 1, 1998.

Mr.
David Powell, Contracting Policy
Branch, SAF/AQCP, 1060 Air Force
Pentagon, Washington, DC 20330–1060,
telephone (703) 588–7062.
FOR FURTHER INFORMATION CONTACT:

Under the
authority of 5 U.S.C. 301 and FAR 1.301
48 CFR, Chapter 53, is amended by
removing Part 5316.

SUPPLEMENTARY INFORMATION:

Carolyn A. Lunsford,
Air Force Federal Register Liaison Officer.
[FR Doc. 98–32530 Filed 12–7–98; 8:45 am]
BILLING CODE 5001–05–U

The FHWA is adopting
regulations to implement section 4007
of the Transportation Equity Act for the
21st Century (TEA–21), concerning
waivers and exemptions from the
Federal Motor Carrier Safety
Regulations (FMCSRs), and the
administration of pilot programs to
evaluate innovative alternatives to the
regulations. The regulations establish
the procedures persons must follow to
request waivers and to apply for
exemptions from the FMCSRs, and the
procedures the FHWA will use to
process the requests for waivers and
applications for exemptions. The
regulations also codify statutory
requirements concerning the agency’s
administration of pilot programs. This
rulemaking is intended to provide
procedures to ensure the timely
processing of requests for waivers and
applications for exemptions, and public
disclosure of the procedures the agency
would use in initiating and managing
pilot programs.
DATES: This rule is effective December 8,
1998. Comments must be received on or
before February 8, 1998.
ADDRESSES: Submit written, signed
comments to FHWA Docket No. FHWA–
98-4145, the Docket Clerk, U.S. DOT
Dockets, Room PL–401, 400 Seventh
Street, SW., Washington, DC 20590–
0001. All comments received will be
available for examination at the above
address from 10 a.m. to 5 p.m., et.,
Monday through Friday, except Federal
holidays. Those desiring notification of
receipt of comments must include a selfaddressed, stamped envelope or
postcard.
FOR FURTHER INFORMATION CONTACT: Mr.
Larry W. Minor, Office of Motor Carrier
Research and Standards, HCS–10, (202)
366–4009; or Mr. Charles E. Medalen,
Office of the Chief Counsel, HCC–20,
(202) 366–1354, Federal Highway
Administration, 400 Seventh Street,
SW., Washington, D.C. 20590–0001.
SUMMARY:

Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations
Office hours are from 7:45 a.m. to 4:15
p.m., e.t., Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
Internet users can access all
comments received by the U.S. DOT
Dockets, Room PL–401, by using the
universal resource locator (URL): http:/
/dms.dot.gov. It is available 24 hours
each day, 365 days each year. Please
follow the instructions online for more
information and help.
An electronic copy of this document
may be downloaded using a modem and
suitable communications software from
the Government Printing Office’s
Electronic Bulletin Board Service at
(202) 512–1661. Internet users may
reach the GPO’s web page at: http://
www.access.gpo.gov/nara.
Background
On June 9, 1998, the President signed
the Transportation Equity Act for the
21st Century (TEA–21) (Pub. L. 105–
178, 112 Stat. 107). Section 4007 of
TEA–21 amended 49 U.S.C. 31315 and
31136(e) concerning the Secretary of
Transportation’s (the Secretary’s)
authority to grant waivers from the
FMCSRs for a person(s) seeking
regulatory relief from those
requirements. The statute provides the
Secretary with the authority to grant
waivers and exemptions. The duration
of a waiver is limited to three months
and the Secretary may grant the waiver
without requesting public comment.
By contrast, an exemption may be up
to two years in duration, and may be
renewed. The Secretary must provide
the public with an opportunity to
comment on each exemption request
prior to granting or denying the request.
Section 4007 also provides the
Secretary with authority to conduct
pilot programs, research studies in
which an exemption(s) would be
granted to allow innovative alternatives
to certain FMCSRs to be tested. The
Secretary must provide the public with
an opportunity to comment before
starting such a program.
Prior to the enactment of TEA–21, 49
U.S.C. 31136(e) and 31315 provided the
FHWA explicit authority to waive any
regulation issued under the Motor
Carrier Safety Act of 1984 (Pub. L. 98–
554, 98 Stat. 2832), the Commercial
Motor Vehicle Safety Act of 1986 (Pub.
L. 99–570, 100 Stat. 3207–170), and the
Omnibus Transportation Employee
Testing Act of 1991 (Pub. L. 102–143,
105 Stat. 952). The FHWA could waive
any part of a regulation, as it applied to
a person or class of persons, if the
waiver was first determined to be

consistent with the public interest and
the safe operation of commercial motor
vehicles (CMVs). Before granting a
waiver under these provisions of the
United States Code, the FHWA had to
publish a notice in the Federal Register
requesting public comment on the terms
and conditions of the waiver. Generally,
the agency used its waiver authority
sparingly because it was difficult to
determine beforehand, with a
reasonable degree of certainty, whether
an activity that is prohibited under the
current regulations could be safely
conducted under the terms and
conditions of a waiver. The difficulties
of that waiver process are exemplified
by the decision of the U.S. Court of
Appeals for the D.C. Circuit in
Advocates for Highway and Auto Safety
v. Federal Highway Administration, 28
F. 3d 1288 (1994), concerning the
FHWA’s Vision Waiver Program for
CMV drivers.1
With the enactment of TEA–21, the
FHWA may grant a waiver or exemption
that relieves a person from compliance
in whole or in part with a regulation if
the FHWA determines that the waiver or
exemption is in the public interest and
would likely achieve a level of safety
that is equivalent to, or greater than, the
level that would be achieved by
complying with the regulation to which
the waiver or exemption would apply.
The TEA–21 also permits the FHWA to
conduct pilot programs to evaluate
alternatives to regulations relating to
motor carrier, CMV, and driver safety.
Pilot programs would include the use of
exemptions under strict controls to
enable the collection and analysis of
data, and the preparation of a report to
Congress. The TEA–21 makes a clear
distinction between ‘‘waivers’’ and
‘‘exemptions’’ and specifies
requirements for pilot programs.
Waivers
The TEA–21 gives the FHWA the
authority to grant short-term waivers
without requesting public comment,
and without providing public notice. In
addition to the safety criterion that
applies to both waivers and exemptions,
waivers will require a ‘‘public interest’’
finding. Waivers may only be granted to
a person for a specific unique, nonemergency event for periods up to three
months.
1 On August 2, 1994, the D.C. Circuit found that
the agency’s determination that the waiver program
will not adversely affect the safe operation of
commercial motor vehicles lacked empirical
support in the record. Accordingly, the Court found
that the FHWA failed to meet the exacting
requirements of 49 U.S.C. 31136(e). The Court
concluded that the FHWA’s adoption of the waiver
program was contrary to law, and vacated and
remanded the rule to the agency.

67601

Exemptions
The exemption provision is intended
to broaden the agency’s discretion to
provide regulatory relief by overcoming
the strict interpretation of 49 U.S.C.
31136(e) in Advocates for Highway and
Auto Safety v. Federal Highway
Administration, supra, concerning the
FHWA’s Vision Waiver Program for
CMV drivers. As expressed in the
legislative history of section 4007 of
TEA–21:
The Court found that the statutory
language [49 U.S.C. 31136(e)] required the
Secretary to determine, before issuing any
waiver, that no diminution in safety would
result, i.e., that it be determined beforehand
there would be absolutely no increase in
crashes as a result of the waivers. To deal
with the decision, this section substitutes the
term ‘‘equivalent’’ to describe a reasonable
expectation that safety will not be
compromised. In the absence of greater
discretion to deal with waivers and
exemptions and a new standard by which to
judge them, the Congress would continue to
be the only source to provide regulatory
exemptions.
H.R. Conf. Rep. No. 105–550, at 489–490
(1998)

The TEA–21 requires the FHWA to
publish a notice in the Federal Register
for each exemption requested,
explaining that the request has been
filed, and providing the public an
opportunity to inspect the safety
analysis and any other relevant
information known to the agency, and
comment on the request. Prior to
granting a request for an exemption, the
agency must publish a notice in the
Federal Register identifying the person
or class of persons who will receive the
exemption, the provisions from which
the person will be exempt, the effective
period, and all terms and conditions of
the exemption. The terms and
conditions established by the FHWA
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 is required to
monitor the implementation of each
exemption to ensure compliance with
its terms and conditions.
If the FHWA denies a request for an
exemption, the agency must publish a
notice in the Federal Register
identifying the person who was denied
the exemption and the reasons for the
denial. Section 4007 gives the agency
the option of publishing a notice for
each denial of an exemption, or
periodically publishing notices for all
denials during a given period of time.
Generally, the duration of exemptions
issued under the authority of section

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4007 is limited to two years from the
date of approval, but may be renewed.
The FHWA 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 49 U.S.C. 31136.
Pilot Programs
The TEA–21 permits the FHWA 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. The FHWA must publish,
in the Federal Register, a detailed
description of each pilot program,
including the exemptions being
considered, and provide notice and an
opportunity for public comment before
the effective date of the program. The
agency is required to ensure that the
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. The duration of pilot
programs is limited to three years from
the starting date.
The FHWA is required to immediately
revoke participation of a motor carrier,
CMV, or driver for failure to comply
with the terms and conditions of the
pilot program, or if continued
participation is inconsistent with the
goals and objectives of the safety
regulations issued under the authority
of 49 U.S.C. chapter 313, or 49 U.S.C.
31136. The agency is required to
immediately terminate a pilot program
if its continuation is inconsistent with
the goals and objectives of the safety
regulations issued under the authority
of 49 U.S.C. chapter 313, or 49 U.S.C.
31136.
At the conclusion of each pilot
program, the FHWA must report to
Congress the findings, conclusions, and
recommendations of the program,
including suggested amendments to
laws and regulations that would
enhance motor carrier, CMV, and driver
safety and improve compliance with the
FMCSRs.

Public Meeting to Discuss the FHWA’s
Implementation of Section 4007
On August 20, 1998, the FHWA held
a public meeting at the Department of
Transportation headquarters to solicit
information from interested parties on
issues the agency should consider in
implementing section 4007 of TEA–21.
A notice announcing the meeting was
published on July 29, 1998 (63 FR
40387). The notice also provided
interested parties with an opportunity to
submit written comments to the docket.
Discussion of Comments Made During
the Public Meeting
The following companies and
organizations were represented at the
public meeting: Advocates for Highway
and Auto Safety (Advocates); American
Association of Motor Vehicle
Administrators (AAMVA); the American
Automobile Association (AAA);
American Road and Transportation
Builders Association (ARTBA); the
American Trucking Associations, Inc.
(ATA); Associated General Contractors
(AGC); Institute for Public
Representation; Maryland State
Highway Administration; Nalley and
Associates; National Automobile
Dealers Association (NADA); National
Private Truck Council (NPTC);
Petroleum Marketers Association
(PMA); Kenneth Pierson, a safety
consultant; Truckload Carriers
Association; U.S. Department of Energy;
and Western Atlas International. A
transcript of the meeting has been
placed in the docket.
Generally, the participants in the
public meeting supported the
implementation of section 4007 of the
TEA–21. There were differing views on
how complex or detailed the procedural
rules should be; what criteria to use for
granting waivers and exemptions and
allowing participation in pilot
programs; and how the FHWA should
monitor persons who are granted
waivers or exemptions, and participants
in pilot programs.
The ATA discussed the need for
making a distinction between the
procedural rules for waivers and
exemptions. The ATA stated:
With respect to waivers, since they are for
a short duration and are intended to be
limited in scope to address unique
circumstances, there should be fewer entry
hurdles for applicants, as well as less
monitoring by the government.
Applicants should be required to describe
the circumstances that make their operations
so unique as to support a limited waiver, and
why there is a reasonable public interest—
because that is one of the legislative tests.
Applicants must also be required to
describe the safety controls that will be put

in place in order to mitigate any potential
safety concerns. And since waivers will be
limited in duration, [the FHWA], as I
indicated, should limit the amount of
monitoring or reporting involved.
And we believe in some cases maybe there
is no reporting and maybe there is no
monitoring, depending on the circumstances.

The ATA recommended that the
FHWA consider providing examples of
such countermeasures, and be willing to
assist the applicants by providing
information on the types of safety
impact analyses that might be included
in an application.
The AAA believes that ‘‘open, timely,
and two-way’’ communication among
the FHWA and the States, and the
public is critical. The AAA also
indicated that certain terms should be
defined in the regulations and that
certain conditions should be met by
applicants for exemptions and waivers.
The AAA stated:
Although the statute does not require
public notice or comment, it also does not
prohibit this critical component. AAA
believes that FHWA should take full
advantage of all opportunities to
communicate its goals in motor carrier safety
and therefore recommends that FHWA
provide formal public notice of waivers.
A notice in the Federal Register would not
be burdensome and would at least
communicate the public interest to be served
by the waiver. Such notice would also signal
to the public that the agency values
communication, which is so important for
the public to feel like they’re a part of the
process.
We further recommend that FHWA
approach states and communities affected by
the waiver again as partners and provide
notice sufficiently in advance so that their
objections, recommendations, or concerns
regarding the proposed waiver may be fairly
and adequately considered and make them a
part of the process.
AAA also urges FHWA to clearly define
the term ‘‘public interest’’ in its rule
implementing the waiver authority. Clear
definitions are critical to public
understanding and acceptance.
Moving on to the area of exemptions, AAA
recommends that the regulations governing
requests for exemption go beyond those
required ‘‘at a minimum’’ in the statute and
should include some of the following areas:
1. The public interest to be served by the
exemption;
2. A clear statement of the necessity for
and purpose of the exemption;
3. An analysis of the enforcement impacts
of the exemption and, if substantial, how cost
recovery to states might be achieved;
4. And then identification of the economic
benefits to participants.

The AGC and PMA expressed interest
in having the FHWA exercise its
authority under section 4007 of the
TEA–21 to provide an exemption and
pilot program, respectively, concerning

Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations
the hours-of-service regulations (49 CFR
395). The AGC stated:
AGC calls on FHWA to use these new
authorities to grant broad exemption from the
hours of service restrictions for the
construction industry. No other set of
regulations are considered more onerous to
the industry than these restrictions and the
attendant requirements that go along with
them.
And from our point of view, they have the
least positive impact on safety in
construction. And as I said, I gave a
detailed—detailed comments that we’ve
submitted to the record before on hours of
service, detailing why we think the industry
is unique and why it should be exempted.

The PMA made reference to the
FHWA’s Winter Home Heating Oil
Delivery State Flexibility Program
developed in response to section 346 of
the National Highway System
Designation Act of 1995 (Pub. L. 104–
59, 109 Stat. 568). The PMA requested
that a program similar to the one
described in the FHWA’s January 29,
1997 (62 FR 4372) notice of final
determination ‘‘fit comfortably within
the constructs of the rule we discuss
here today.’’
The PMA also provided comments
about monitoring participants in pilot
programs. The PMA stated:
In regard to monitoring of participants,
monitoring of these programs—especially
Pilot Project Programs—should be done by
requiring participants to submit periodic
reports as part of the FHWA Plan.
Additionally, PMA suggests the Federal
Highway Administration consider the
creation of small, program-specific agency
appointed review boards consisting of agency
personnel, affected state regulators and
industry representatives, who would be
responsible for overall monitoring of an
individual program.
The review board should be given periodic
updates regarding their specific program, as
provided by the FHWA. In this way, Pilot
Programs will be treated with the utmost
level of seriousness, with meaningful
consideration being given to all aspects of the
process.
The review board could also be available
to advise the Secretary at his request as to
key elements of rule implementation, in
addition to monitoring, including revocation
of participation; program termination; the
report to Congress; and other items as the
Secretary may request.

Discussion of Written Comments
Received in Response to the FHWA’s
July 29, 1998, Notice
The FHWA received written
comments from: the AAA; the AAMVA;
the ARTBA; the ATA; the Insurance
Institute for Highway Safety (IIHS);
Parents Against Tired Truckers; and the
PMA.
The IIHS stated:

Some federal motor carrier safety rules are
so vital to the protection of commercial
drivers and the general public that waivers
and exemptions should not be permitted.
One example is the current limitation on
driving hours. The agency has no sound
evidence that these hours-of-service limits
can be extended without increasing crash
rates.
Motor carriers seeking waivers or
exemptions from safety rules should expect
to furnish sound data to justify these
exemptions and undergo continued close
scrutiny of their safety records. FHWA
should not simply accept motor carriers’
assertions that their safety records are
excellent. Rather, the agency should review
compliance data and perform compliance
reviews if none have been performed within
the past five years. Similarly, a reasonable
percentage, perhaps 20 percent, of vehicles
from motor carriers seeking exemptions
should be inspected by state or federal
personnel. Because of the high percentage of
out-of-state citations and crashes that do not
show up in the records of the States issuing
commercial licenses to individual drivers,
the agency also should gather crash and
citation data from all states in which the
motor carrier operates. In addition, the
reported vehicle-miles of travel should be
verified. If FHWA decides to grant a waiver
or exemption, these data should continue to
be actively collected to determine whether
public safety has been compromised.

The ARTBA stated:
While we support the goals of section
4007, we urge FHWA to take steps to ensure
participants in section 4007 will not be
subject to an increased level of enforcement
scrutiny relative to non-participants.
Specifically, FHWA should include
directives that enforcement frequency should
be unaffected by an individual or industry’s
status of participation in section 4007.
Without this type of assurance, participation
will potentially be discouraged.

FHWA Response to Comments
The FHWA has considered the
remarks of the participants in the
August 20, 1998, public meeting, and
the comments submitted to the docket
and believes the procedural rules
provide a straightforward process for the
implementation of the waiver,
exemption, and pilot program authority
provided by section 4007 of the TEA–
21. The FHWA does not agree with
commenters who suggest that the
procedural rules include specific details
on how the agency would determine
whether to grant or deny a waiver or
exemption, and monitor the persons
who are granted waivers and
exemptions. The FHWA also disagrees
with commenters’ suggestions to
include specific details on how the
agency would communicate with State
agencies.
The FHWA does not believe it is
practical to establish rules on who
should be eligible to apply for waiver or

67603

exemption without knowing the specific
regulatory relief the person is
requesting. Each request for a waiver
and application for an exemption
should be reviewed on a case-by-case
basis to determine if the person can
satisfy the statutory criteria for waivers
and exemptions. In the case of
exemption applications, the FHWA
notes that the agency must publish a
notice in the Federal Register to provide
the public with an opportunity to
review the application and safety
impact analysis provided with the
application. The agency believes this
process will be adequate to ensure that
all interested parties may comment on
the applicant’s safety performance and
the specific regulatory relief being
requested.
The FHWA agrees with the ATA’s
comments about the need for making a
distinction between the procedural rules
for waivers and exemptions. Since
waivers are for temporary (three months
or less) regulatory relief for unique, nonemergency events, there should be a
simple process for requesting a waiver,
and the FHWA should ensure a timely
response to the applicant.
The FHWA believes the interim final
rule establishes an effective process to
ensure a timely response to the persons
who request a waiver. Although the
FHWA has the authority to publish a
Federal Register notice to request
public comments on waiver
applications—a point emphasized by
the AAA during the public meeting—
the agency has tentatively determined
that it would be impractical to request
public comment each time someone
needs a waiver for a unique, nonemergency event, especially given the
three-month statutory limitation on the
duration of the waiver. The agency
believes that unless the application is
submitted far in advance of the date for
the unique event, it is very likely that
the waiver could not be processed in
time. Also, the time required to go
through a notice-and-comment process
would typically exceed the duration of
the unique event.
In response to the ATA’s comments
that the FHWA assist exemption
applicants by providing information on
the types of safety impact analyses that
might be included in an application, the
FHWA will consider providing
assistance to the extent that there are
available resources at the time the
request for assistance is made. The
FHWA notes that the primary
responsibility for preparing an
application for an exemption rests with
the applicant. Prior to requesting
assistance from the FHWA, each
applicant should carefully review its

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plans for achieving a level of safety that
is equivalent to, or greater than, the
level of safety that would be obtained by
complying with the regulation from
which it would be granted an
exemption, and review the safety
management controls it would use as an
alternative to the regulation.
The FHWA acknowledges that the
statutory language suggests, and the
interim final rule establishes, an
application review process that is not
completely data-driven. Specific passfail criteria (e.g., crash rates, safety
ratings, compliance review results,
driving records, etc.) for applications are
not required. However, given the broad
authority provided by section 4007 of
the TEA–21 and the diversity of the
motor carrier industry, establishing onesize-fits-all, pass-fail criteria for all
exemption applicants is not feasible.
The FHWA will make its determination
based upon the research, technical, and
safety data available at the time it
reviews an application and consider the
public comments received in response
to the Federal Register notice required
for each exemption application.
With regard to the issue of monitoring
of waiver and exemption grantees, the
accident register requirements of
§ 390.15 will remain applicable. The
FHWA will provide the specific terms
and conditions, including monitoring
and reporting provisions, for each
waiver and exemption on a case-by-case
basis. For exemptions, the terms and
conditions will be part of the Federal
Register notice requesting public
comment.
The FHWA believes the notice-andcomment procedures established for
exemption applications are consistent
with the requirements of section 4007
and will help to ensure the public has
the opportunity to participate in the
exemption process.
The FHWA disagrees with the AAA’s
recommendation that minimum
requirements for exemption
applications include an analysis of the
enforcement impacts and how the States
would be reimbursed for any substantial
expenses involved with enforcing the
terms and conditions of the exemption,
and monitoring the exemption grantees.
The agency also disagrees with the
recommendation that applicants be
required to identify economic benefits.
The FHWA through its Motor Carrier
Safety Assistance Program (MCSAP)
provides States with Federal funding to
help support motor carrier safety
enforcement programs. The FHWA does
not intend or expect the level of effort
from the State agencies to increase for
the purpose of enforcing the terms and
conditions of the exemptions that would

be granted. It is expected that the
processes/systems used to select drivers
and vehicles for inspection, and to visit
motor carriers for compliance reviews
would remain the same. If a motor
carrier operating under the terms and
conditions of a waiver or exemption has
one of its vehicles inspected, or is
selected for a compliance review, the
officer or investigator would verify
compliance with terms and conditions
of the waiver or exemption at that time.
The FHWA believes it is
inappropriate to subject a motor carrier
to additional roadside inspections and
compliance reviews based solely on its
receipt of a waiver or exemption. The
benefits of granting waivers and
exemptions would be lost if regulatory
relief were replaced with more rigorous
or frequent enforcement activities
targeted at the carriers who receive
them. The FHWA shares the ARTBA’s
concerns that motor carriers would be
discouraged from taking advantage of
the opportunities provided by section
4007 if there were an increased level of
enforcement scrutiny.
On the subject of economic benefits,
the FHWA does not believe applicants
should be required to document the
economic benefits to the exemption.
The agency believes that it is more
likely than not that motor carriers
would only apply for an exemption if
the motor carrier believes there is a
significant economic benefit. There is
no readily apparent safety benefit to
requiring motor carriers to assign a
dollar value to the economic benefits
and prove that their estimates are valid.
The FHWA disagrees with the AAA’s
request that the agency define ‘‘public
interest’’ as the term is used in 49 U.S.C.
31315(a) concerning waivers. The
FHWA believes that the public interest
is being served if alternatives that are
likely to achieve safety outcomes that
are equal to, or greater than, the
outcomes provided by the current
regulations are proven to be successful.
The agency’s objective is to work with
the motor carrier industry, States, and
safety groups to improve highway
safety. Providing motor carriers with
flexibility to explore new approaches to
improving safety is in the public
interest.
The agency has not included a
definition of ‘‘equivalent’’ in the interim
final rule but requests public comment
on whether there is a need to define the
term. Commenters are encouraged to
include suggestions or
recommendations on how the term
should be defined.
With regard to the PMA’s suggestion
that the FHWA consider the creation of
a review board for the monitoring of

individual pilot programs, the agency
does not believe this is necessary or
practical. The terms and conditions for
participation in a pilot program would
include certain safety-related reports
that could be used to help the agency
monitor the motor carriers. If a
participant fails to comply with the
terms and conditions of the pilot
program, the FHWA must immediately
revoke participation of the motor
carrier, driver, or vehicle.
In response to the AGC and the PMA
comments about regulatory relief from
the hours-of-service regulations, the
FHWA believes this rulemaking is not
the proper forum for resolving those
concerns. Now that procedural rules are
in place, the AGC and the PMA
members may apply for an exemption
and request the development of a pilot
program, respectively.
The FHWA agrees with commenters’
emphasis on the importance of working
with the States. The FHWA will ensure
that State officials are informed about
the waivers, exemptions, and pilot
programs. The States, as well as all
interested parties, may comment in
response to the Federal Register notices
required by section 4007 of the TEA–21.
The FHWA will notify the States of
waivers and exemptions granted.
Discussion of Regulatory Language
The FHWA is creating Part 381,
Waivers, Exemptions, and Pilot
Programs, to specify the requirements
for requesting waivers and applying for
exemptions, the process the agency will
use in reviewing waiver requests and
exemption applications, and the
initiation and administration of pilot
programs. Part 381 is 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
the FHWA will use to review waiver
requests;
Subpart C—Procedures for Applying
for Exemptions provides a plainlanguage description of exemptions, the
procedures for applying for an
exemption, the process the FHWA will
use to review exemption applications,
and the conditions under which the
FHWA 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 information the FHWA requests from
individuals who would like to

Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations
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 the FHWA’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 a
waiver, exemption, or pilot program
with respect to a person operating under
a waiver or exemption or participating
in a pilot program.
Regulations for Which Waivers and
Exemptions May Be Granted
Section 4007 of the TEA–21
authorizes the FHWA to grant waivers
and exemptions from any FMCSRs
issued under the authority of 49 U.S.C.
31136 and chapter 313. Section 4007
does not give the FHWA the authority
to grant waivers and exemptions from
regulations issued under the authority
of other statutes, for example, the
financial responsibility regulations
codified at 49 CFR part 387 which were
issued under the authority of 49 U.S.C.
31138 and 31139, concerning the
transportation of passengers and
property, respectively. Also, the FHWA
does not have the authority to grant
waivers and exemptions from certain
requirements (e.g., surety bonds and
policies of insurance for motor carriers
and property brokers, surety bonds and
policies of insurance for freight
forwarders) which were transferred from
the former Interstate Commerce
Commission to the FHWA and are
codified at 49 CFR 387. The statutory
authority for those requirements is 49
U.S.C. 13101, 13301, 13906, and 14701.
Another example of a requirement
from which the FHWA cannot grant a
waiver or exemption is 49 CFR 396.25,
qualifications of brake inspectors. This
rule establishes minimum qualifications
for motor carrier employees that are
responsible for the inspection, repair, or
maintenance of CMV brake systems.
This rule was issued under the authority
of the Truck and Bus Safety and
Regulatory Reform Act of 1988 (the
specific provision concerning
qualifications of brake inspectors is
codified at 49 U.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, the FHWA
has included a list in §§ 381.200,
381.300, and 381.400 which define in
context, a waiver, exemption, and pilot

program, respectively. Generally, 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) § 385.21 Motor Carrier
Identification Report;
(4) § 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 § 396.25); and
(10) Part 399—Step, Handhold, and
Deck Requirements.
The FHWA has 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
monitor the accident involvement of
entities operating under the terms of a
waiver. The FHWA requests comments
on this issue.
The FHWA has included the motor
carrier identification report (Form MCS–
150) requirement (49 CFR 385.21) as one
of the rules which could be waived
because the agency believes there is no
apparent benefit to using that report to
gather information on entities that have
not previously operated CMVs in
interstate commerce and do not intend
to operate CMVs in interstate commerce
after the term of the waiver expires. The
information from the Form MCS–150
would be used to create a file in the
Motor Carrier Management Information
System (MCMIS), a database containing
safety information (e.g., compliance
review results, roadside inspection
results, CMV accidents, etc.) about
interstate motor carriers. The entities
that would benefit from this action
would be certain intrastate motor
carriers that are not subject to State
requirements to complete the Form
MCS–150, and businesses or groups that
rarely (except for a unique, nonemergency event) operate CMVs.
Several States currently require
intrastate motor carriers to complete
Form MCS–150 and obtain a USDOT
identification number. These motor
carriers are listed in the MCMIS as
intrastate only carriers. The addition of
these motor carriers to the MCMIS
enables the States and the FHWA to
work together in determining the
number of active motor carriers

67605

operating in the United States, and to
monitor the safety performance of motor
carriers. The intrastate motor carriers
subject to State requirements for
completing Form MCS–150 would have
already completed the form prior to
applying for a waiver to conduct a shortterm operation in interstate commerce,
and would continue to be subject to the
State requirements at the end of the
waiver period.
Since intrastate motor carriers and
non-motor carrier entities would be
subject to the FHWA’s jurisdiction for
only a short period of time, adding them
to the interstate motor carrier census
could, depending on the number of
intrastate motor carriers and non-motor
carrier entities who are granted waivers,
skew the data in the MCMIS.
Furthermore, since the agency would be
able to identify these entities through
the information submitted as part of the
waiver application, the submission of
Form MCS–150 would be redundant.
The FHWA requests comments on
whether these entities should be
required to submit Form MCS–150. The
agency also requests comments on
whether waivers granted to intrastate
motor carriers and non-motor carrier
entities should also include relief from
all of the vehicle marking requirements
in 49 CFR 390.21, or only the display of
the motor carrier census number (i.e.,
USDOT identification number) that is
assigned when Form MCS–150 is
completed.
With regard to exemptions, the FHWA
is requiring intrastate motor carriers and
non-motor carrier entities to complete
Form MCS–150 and to mark all CMVs
as required in § 390.21. The agency
believes 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
the purposes of the MCMIS. Since
exemptions provide regulatory relief for
up to two years, and may be renewed,
the FHWA believes it is important that
all CMVs operated in interstate
commerce under the terms of the
exemption should be marked. The
FHWA requests comments on these
issues.
For the purposes of exemptions
granted as part of a pilot program, the
FHWA is using the same list of
regulations provided in § 381.300, What
is an exemption? The FHWA is using
the same list because the agency does
not believe entities participating in a
pilot program which could continue for
up to three years should be treated
differently from interstate motor carriers
who are required to complete the Form
MCS–150 and to mark their CMVs.

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The FHWA requests comments from
all interested parties on whether any of
the regulations on the lists should be
considered ‘‘off-limits’’ for the purposes
of granting waivers and exemptions.
Commenters are encouraged to explain
in detail why the agency should refuse
to consider waivers or exemptions to
those requirements.
Process for Requesting a Waiver and
Applying for an Exemption
The FHWA has attempted to keep the
processes for requesting a waiver and
applying for an exemption simple. The
person requesting a waiver or applying
for an exemption is required to send a
written request (which could be a typed
or handwritten (printed) letter) to the
Federal Highway Administrator. The
written request must include basic
information such as the identity of the
person who would be covered by the
waiver or exemption, the name of the
motor carrier or other entity that would
be responsible for the use or operation
of CMVs during the waiver or
exemption period, and the principal
place of business of the motor carrier or
other entity. The interim final rule
requires that the request or application
include a written statement that: (1)
Describes the event or CMV operation
for which the waiver or exemption
would be used; (2) identifies the
regulation from which the applicant is
requesting relief; (3) estimates the total
number of drivers and CMVs that would
be operated under the terms and
conditions of the waiver or exemption;
and (4) explains how the recipient of the
waiver or exemption would ensure that
they achieve a level of safety that is
equivalent to, or greater than, the level
of safety that would be obtained by
complying with the regulation. For
exemption applications, the written
request must also include an assessment
of the safety impacts the exemption may
have, describe the impacts (e.g.,
inability to test innovative safety
management control systems, etc.) 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 § 381.210, How do I request a
waiver?, and § 381.310, How do I apply
for an exemption?. The FHWA believes
these requirements are consistent with
the statutory language in TEA–21. The
agency requests comments on the
information that persons requesting
waivers or applying for exemptions are
required to submit.

FHWA Procedures for the Review of
Waiver Requests
The Office of Motor Carrier and
Highway Safety is responsible for
reviewing requests for waivers and
making recommendations to the Federal
Highway Administrator (the
Administrator). A copy of the decision
signed by the Administrator will be sent
to the applicant. It will include the
terms and conditions for the waiver, or
the reason(s) for denying the waiver
application.
FHWA Procedures for the Review of
Exemption Applications
With regard to exemptions, the review
process differs because of the
requirements in section 4007 of the
TEA–21. The Office of Motor Carrier
and Highway Safety will review the
application for an exemption and
prepare, for the Administrator’s
signature, a Federal Register notice
requesting public comment. After a
review of the comments received, the
Office of Motor Carrier and Highway
Safety will make a recommendation to
the Administrator. Notice of the
Administrator’s decision will be
published in the Federal Register.
Initiation and Administration of Pilot
Programs
Although TEA–21 does not require
the agency to develop regulations
concerning pilot programs, the FHWA
has included, in subparts D and E of
part 381, information on how pilot
programs are initiated, and the statutory
requirements for the agency’s
administration of pilot programs,
respectively. The agency believes that
including information on pilot programs
in the FMCSRs will provide a more
convenient reference to the motor
carrier industry and the general public
than title 49 of the United States Code.
The regulations indicate that the FHWA
has the authority to initiate pilot
programs after providing notice and an
opportunity for public comment; they
also provide general information on the
types of information that interested
parties should submit to the agency if
they would like to recommend or
suggest a pilot program. The
information presented in subpart E 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 the 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 with
respect to a person operating under a
waiver or exemption or participating in
a pilot program. The FHWA has
included 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 believes this approach will
ensure that State officials are notified
about the Federal preemption authority.
Including the preemption language in
the waiver and in the exemption and
pilot project 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 and advises
them that State laws and regulations
that conflict with the waiver, exemption
or pilot program are automatically
preempted, and the duration of the
preemption. The agency requests
comments on this preliminary decision.
Rescission of Waiver Provision 49 CFR
Part 383
The FHWA is rescinding § 383.7,
Waiver provisions, of part 383
concerning commercial driver’s license
(CDL) standards, requirements and
penalties. Section 383.7 sets forth the
procedures a person must follow to
petition the FHWA for a waiver of the
CDL regulations. Because section 4007
of the TEA–21 replaced the statutory
standards for CDL waivers in 49 U.S.C.
31315 with a new set of standards for
waivers, exemptions, and pilot
programs applicable to all safety
regulations, § 383.7 is no longer valid
and must be rescinded.
Rulemaking Analyses and Notices
The Administrative Procedure Act (5
U.S.C. 553(b)) provides that its notice
and comment requirements do not
apply when an agency, for good cause,
finds that they are impracticable,
unnecessary, or contrary to the public
interest. Since section 4007 of the TEA–
21 requires the FHWA to specify by
regulation the procedures by which a
person may request an exemption
within 180 days after the enactment of
the statute, the FHWA has determined
that it is impracticable to publish a
notice of proposed rulemaking, review
the public comments, and issue a final
rule prior to the December 6, 1998,
deadline.
Although the FHWA did not publish
a notice of proposed rulemaking, the
agency held a public meeting on August
20, 1998, to solicit information from
interested parties on issues the agency
should consider in implementing
section 4007 of TEA–21. A notice

Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations
announcing the meeting was published
on July 29, 1998 (63 FR 40387). The
notice also provided interested parties
with an opportunity to submit written
comments to the docket. The FHWA has
considered the remarks of the
participants in the August 20 public
meeting, and the comments submitted
to the docket. Therefore, the agency has,
to the greatest extent practicable given
the statutory deadline, made an effort to
provide the public with an opportunity
to offer comments and suggestions on
how the agency should develop the
procedural rules to implement section
4007 of the TEA–21.
The interim final rule establishes the
procedures to request waivers and to
apply for exemptions from the FMCSRs,
and the procedures the FHWA will use
to process the requests for waivers and
applications for exemptions. The rule
also codifies statutory requirements
concerning the agency’s administration
of pilot programs. Since the interim
final does not establish pass-fail criteria
(e.g., crash rates, safety ratings,
compliance review results, driving
records, etc.) for persons who request
waivers or apply for exemptions, the
requirements are administrative in
nature and relate to agency procedure
and practice.
Accordingly, the FHWA finds that
there is good cause to waive prior notice
and comment for the limited reasons
described above. For the same reasons,
the FHWA finds, pursuant to 5 U.S.C.
553(d)(3), that there is good cause for
making the interim final rule effective
upon publication.
The interim final rule will remain in
effect until the agency reviews the
comments received in response to this
notice and issues a final rule. Comments
received will be considered in
evaluating whether any changes to this
interim final rule are required.
All comments received before the
close of business on the comment
closing date indicated at the beginning
of this notice will be considered and
will be available for examination in the
docket at the location listed under the
address section of this notice.
Comments received after the comment
closing date will be filed in the public
docket and will be considered to the
extent practicable, but the FHWA may
adopt a final rule at any time after the
close of the comment period. In
addition to late comments, the FHWA
will also continue to file, in the public
docket, relevant information that
becomes available after the comment
closing date. Interested persons should
continue to examine the public docket
for new material.

Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this
action is not a significant regulatory
action within the meaning of Executive
Order 12866 or the Department of
Transportation’s regulatory policies and
procedures. This interim final rule
establishes the rules and procedures
concerning the handling of requests for
waivers and applications for exemptions
from the FMCSRs, and the initiation and
administration of pilot programs. It is
anticipated that these rules will help to
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, that
obtained by complying with the
regulations. The FHWA believes this
interim final rule could result in
incremental, although not substantial,
economic benefits in those cases in
which the alternatives provide a more
cost-effective approach to ensuring
motor carrier safety. Therefore, a full
regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601–612), the
FHWA has evaluated the effects of this
interim final rule on small entities. This
rulemaking establishes the rules and
procedures concerning the handling of
requests for waivers and applications for
exemptions from the FMCSRs, and the
initiation and administration of pilot
programs. It is anticipated that theses
rules will help to 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
that obtained by complying with the
regulations. 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 FHWA has written the
regulations in question-and-answer
format and attempted to use 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. Since the
interim final rule does not require small
entities to take any actions unless they
request a waiver or apply for an
exemption, and the information that
would be required as part of the request
for a waiver and application for an

67607

exemption has been kept to a minimum,
the FHWA believes the economic
impact of the rule will be minimal. Any
economic benefits that small entities
might realize from this interim rule
would be incremental and, thus, not
significant within the meaning of the
Regulatory Flexibility Act. Therefore,
the FHWA hereby certifies that this
action would not have an adverse
economic impact on, a substantial
number of small entities.
Unfunded Mandates Reform Act of
1995
This interim final rule will not
impose a Federal mandate resulting in
the expenditure by State, local, and
tribal governments, in the aggregate, or
by the private sector, of $100 million or
more in any one year (2 U.S.C. 1532).
Executive Order 12612 (Federalism
Assessment)
This action has been analyzed in
accordance with the principles and
criteria contained in Executive Order
12612, and it has been determined that
this rule does not have sufficient
federalism implications to warrant the
preparation of a Federalism Assessment.
Although this rulemaking, in and of
itself, does not preempt State and local
laws and regulations, the waivers and
exemptions that would 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, the 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.
The FHWA 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 the FHWA
of concerns about preemption during
the time period that an exemption or
pilot program would be in effect.
Executive Order 12372
(Intergovernmental Review)
Catalog of Domestic Assistance
Program Number 20.217, Motor Carrier
Safety. The regulations implementing
Executive Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this program.

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Paperwork Reduction Act
This document does not contain
information collection requirements for
the purposes of the Paperwork
Reduction Act of 1995 [44 U.S.C. 3501
et seq]. However, the waivers,
exemptions, and pilot programs will
include certain information collection
requirements as part of the terms and
conditions for the regulatory relief
granted. The agency is required by
section 4007 of the TEA–21 to monitor
the implementation of exemptions to
ensure compliance with the terms and
conditions, and ensure that sufficient
records are kept by participants in pilot
programs to facilitate the collection and
analysis of data. The FHWA will
consider the information collection
requirements for each waiver,
exemption, and pilot program and, if
necessary, request approval from the
Office of Management and Budget for
any special recordkeeping requirements
associated with the waiver, exemption,
or pilot program.
National Environmental Policy Act
The agency has analyzed this
rulemaking for the purpose of the
National Environmental Policy Act of
1969 (42 U.S.C. 4321 et seq.) and has
determined that this action would not
have any effect on the quality of the
environment.
Regulation Identification Number
A regulation identification number
(RIN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations. The Regulatory
Information Service Center publishes
the Unified Agenda in April and
October of each year. The RIN contained
in the heading of this document can be
used to cross-reference this action with
the Unified Agenda.
List of Subjects
49 CFR Part 381
Motor carriers, Motor vehicle
equipment, Waivers and exemptions.
49 CFR Part 383
Commercial driver’s license,
Commercial motor vehicles, Motor
carriers.
Issued on: November 30, 1998.
Kenneth R. Wykle,
Federal Highway Administration.

In consideration of the foregoing, the
FHWA is amending title 49, Code of
Federal Regulations, chapter III, by
adding part 381 and by amending part
383 as set forth below:
1. Part 381 is added to read as follows:

PART 381—WAIVERS, EXEMPTIONS,
AND PILOT PROGRAMS
Subpart A—General
Sec.
381.100 What is the purpose of this part?
381.105 Who is required to comply with the
rules in this part?
381.110 What definitions are applicable to
this part?
Subpart B—Procedures for Requesting
Waivers
381.200 What is a waiver?
381.205 How do I determine when I may
request a waiver?
381.210 How do I request a waiver?
381.215 What will the FHWA do after the
agency receives my request for a waiver?
381.220 How long will it take the agency to
respond to my request for a waiver?
381.225 Who should I contact if I have
questions about the information I am
required to submit to the FHWA or about
the status of my request for a waiver?
Subpart C—Procedures for Applying for
Exemptions
381.300 What is an exemption?
381.305 How do I determine when I may
apply for an exemption?
381.310 How do I apply for an exemption?
381.315 What will the FHWA do after the
agency receives my application for an
exemption?
381.320 How long will it take the agency to
respond to my application for an
exemption?
381.325 Who should I contact if I have
questions about the information I am
required to submit to the FHWA or about
the status of my application for an
exemption?
381.330 What am I required to do if the
FHWA grants my application for an
exemption?
Subpart D—Initiation of Pilot Programs
381.400 What is a pilot program?
381.405 Who determines whether a pilot
program should be initiated?
381.410 What may I do if I have an idea or
suggestion for a pilot program?
381.415 Who should I contact if I have
questions about the information to be
included in my suggestion?
381.420 What will the FHWA do after the
agency receives my suggestion for a pilot
program?
Subpart E—Administrative Procedures for
Pilot Programs
381.500 What are the general requirements
the agency must satisfy in conducting a
pilot program?
381.505 What are the minimum elements
required for a pilot program?
381.510 May the FHWA end a pilot
program before its scheduled completion
date?
381.515 May the FHWA remove approved
participants from a pilot program?
381.520 What will the FHWA do with the
results from a pilot program?

Subpart F—Preemption of State Rules
381.600 Do waivers, exemptions, and pilot
programs preempt State laws and
regulations?
Authority: 49 U.S.C. 31136(e), 31315; 49
CFR 1.48.

Subpart A—General
§ 381.100

What is the purpose of this part?

This part prescribes the rules and
procedures for requesting waivers and
applying for exemptions from those
provisions of the Federal Motor Carrier
Safety Regulations (FMCSRs) which
were issued on the authority of 49
U.S.C. 31136 or chapter 313, and the
initiation and administration of pilot
programs.
§ 381.105 Who is required to comply with
the rules in this part?

(a) You must comply with the rules in
this part if you are going to request a
waiver or apply for an exemption.
(b) You should follow the instructions
in subpart D of this part if you would
like to recommend the agency initiate a
pilot program.
§ 381.110 What definitions are applicable
to this part?

Commercial motor vehicle means any
motor vehicle that meets the definition
of ‘‘commercial motor vehicle’’ found at
49 CFR 382.107 concerning controlled
substances and alcohol use and testing,
49 CFR 383.5 concerning commercial
driver’s license standards, or 49 CFR
390.5 concerning parts 390 through 399
of the FMCSRs.
Federal Highway Administrator (the
Administrator) means the chief
executive of the Federal Highway
Administration, an agency within the
Department of Transportation.
FMCSRs means Federal Motor Carrier
Safety Regulations (49 CFR parts 382
and 383, §§ 385.21 and 390.21, parts 391
through 393, 395, 396, and 399).
You means an individual or motor
carrier or other entity that is, or will be,
responsible for the operation of a
CMV(s). The term includes a motor
carrier’s agents, officers and
representatives as well as employees
responsible for hiring, supervising,
training, assigning, or dispatching of
drivers and employees concerned with
the installation, inspection, and
maintenance of motor vehicle
equipment and/or accessories. You also
includes any interested party who
would like to suggest or recommend
that the FHWA initiate a pilot program.

Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations
Subpart B—Procedures for Requesting
Waivers

request relief from all of the
requirements of part 391.

§ 381.200

§ 381.210

What is a waiver?

(a) A waiver is temporary regulatory
relief from one or more FMCSR given to
a person subject to the regulations, or a
person who intends to engage in an
activity that would be subject to the
regulations.
(b) A waiver provides the person with
relief from the regulations for up to
three months.
(c) A waiver is intended for unique,
non-emergency events and is subject to
conditions imposed by the
Administrator.
(d) Waivers may only be granted from
one or more of the requirements
contained in the following parts and
sections of the FMCSRs:
(1) Part 382—Controlled Substances
and Alcohol Use and Testing;
(2) Part 383—Commercial Driver’s
License Standards; Requirements and
Penalties;
(3) § 385.21 Motor Carrier
Identification Report;
(4) § 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 § 396.25); and
(10) Part 399—Step, Handhold and
Deck Requirements.
§ 381.205 How do I determine when I may
request a waiver?

(a) You may request a waiver if one
or more FMCSR would prevent you
from using or operating CMVs, or make
it unreasonably difficult to do so, during
a unique, non-emergency event that will
take no more than three months to
complete.
(b) Before you decide to request a
waiver, you should carefully review the
regulation to determine whether there
are any practical alternatives already
available that would allow your use or
operation of CMVs during the event.
You should also determine whether you
need a waiver from all of the
requirements in one or more parts of the
regulations, or whether a more limited
waiver of certain sections within one or
more of the parts of the regulations
would provide an acceptable level of
regulatory relief. For example, if you
need relief from one of the
recordkeeping requirements concerning
driver qualifications, you should not

How do I request a waiver?

(a) You must send a written request
(for example, a typed or handwritten
(printed) letter), which includes all of
the information required by this section,
to the Federal Highway Administrator,
U.S. Department of Transportation, 400
Seventh Street, SW., Washington, DC
20590.
(b) You must identify the person who
would be covered by the waiver. The
application for a waiver must include:
(1) Your name, job title, mailing
address, and daytime telephone
number;
(2) The name of the individual, motor
carrier, or other entity that would be
responsible for the use or operation of
CMVs during the unique, nonemergency event;
(3) Principal place of business for the
motor carrier or other entity (street
address, city, State, and zip code); and
(4) The USDOT identification number
for the motor carrier, if applicable.
(c) You must provide a written
statement that:
(1) Describes the unique, nonemergency event for which the waiver
would be used, including the time
period during which the waiver is
needed;
(2) Identifies the regulation that you
believe needs to be waived;
(3) Provides an estimate of the total
number of drivers and CMVs that would
be operated under the terms and
conditions of the waiver; and
(4) Explains how you would ensure
that you could achieve a level a safety
that is equivalent to, or greater than, the
level of safety that would be obtained by
complying with the regulation.
§ 381.215 What will the FHWA do after the
agency receives my request for a waiver?

(a) The Office of Motor Carrier and
Highway Safety will review your
request and make a recommendation to
the Administrator. The final decision
whether to grant or deny the application
for a waiver will be made by the
Administrator.
(b) After a decision is signed by the
Administrator, you will be sent a copy
of the document, which will include the
terms and conditions for the waiver or
the reason for denying the application
for a waiver.
§ 381.220 How long will it take the agency
to respond to my request for a waiver?

You should receive a response from
the agency within 60 calendar days from
the date the Administrator receives your
request. However, depending on the

67609

complexity of the issues discussed in
your application, and the availability of
staff to review the material, a final
decision may take up to 120 days.
§ 381.225 Who should I contact if I have
questions about the information I am
required to submit to the FHWA or about
the status of my request for a waiver?

You should contact the Office of
Motor Carrier Research and Standards,
Federal Highway Administration, 400
Seventh Street, SW., Washington, DC
20590. The telephone number is (202)
366–1790.
Subpart C—Procedures for Applying
for Exemptions
§ 381.300

What is an exemption?

(a) An exemption is temporary
regulatory relief from one or more
FMCSR given to a person or class of
persons subject to the regulations, or
who intend to engage in an activity that
would make them subject to the
regulations.
(b) An exemption provides the person
or class of persons with relief from the
regulations for up to two years, and may
be renewed.
(c) Exemptions may only be granted
from one or more of the requirements
contained in the following parts and
sections of the FMCSRs:
(1) Part 382—Controlled Substances
and Alcohol Use and Testing;
(2) Part 383—Commercial Driver’s
License Standards; Requirements and
Penalties;
(3) Part 391—Qualifications of
Drivers;
(4) Part 392—Driving of Commercial
Motor Vehicles;
(5) Part 393—Parts and Accessories
Necessary for Safe Operation;
(6) Part 395—Hours of Service of
Drivers;
(7) Part 396—Inspection, Repair, and
Maintenance (except for § 396.25); and
(8) Part 399—Step, Handhold and
Deck Requirements.
§ 381.305 How do I determine when I may
apply for an exemption?

(a) You may apply for an exemption
if one or more FMCSR prevents you
from implementing more efficient or
effective operations that would maintain
a level of safety equivalent to, or greater
than, the level achieved without the
exemption.
(b) Before you decide to apply for an
exemption you should carefully review
the regulation to determine whether
there are any practical alternatives
already available that would allow you
to conduct your motor carrier
operations. You should also determine
whether you need an exemption from

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Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations

all of the requirements in one or more
parts of the regulations, or whether a
more limited exemption from certain
sections within one or more parts of the
regulations would provide an acceptable
level of regulatory relief. For example, if
you need regulatory relief from one of
the recordkeeping requirements
concerning driver qualifications, you
should not request regulatory relief from
all of the requirements of part 391.
§ 381.310 How do I apply for an
exemption?

(a) You must send a written request
(for example, a typed or handwritten
(printed) letter), which includes all of
the information required by this section,
to the Federal Highway Administrator,
U.S. Department of Transportation,
Federal Highway Administration, 400
Seventh Street, SW., Washington, DC
20590.
(b) You must identify the person or
class of persons who would be covered
by the exemption. The application for
an exemption must include:
(1) Your name, job title, mailing
address, and daytime telephone
number;
(2) The name of the individual or
motor carrier that would be responsible
for the use or operation of CMVs;
(3) Principal place of business for the
motor carrier (street address, city, State,
and zip code); and
(4) The USDOT identification number
for the motor carrier.
(c) You must provide a written
statement that:
(1) Describes the reason the
exemption is needed, including the time
period during which it is needed;
(2) Identifies the regulation from
which you would like to be exempted;
(3) Provides an estimate of the total
number of drivers and CMVs that would
be operated under the terms and
conditions of the exemption;
(4) Assesses the safety impacts the
exemption may have;
(5) Explains how you would ensure
that you could achieve a level a safety
that is equivalent to, or greater than, the
level of safety that would be obtained by
complying with the regulation; and
(6) Describes the impacts (e.g.,
inability to test innovative safety
management control systems, etc.) you
could experience if the exemption is not
granted by the FHWA.
(d) Your application must include a
copy of all research reports, technical
papers, and other publications and
documents you reference.

§ 381.315 What will the FHWA do after the
agency receives my application for an
exemption?

within 180 days of the date it receives
the additional information.

(a) The Office of Motor Carrier and
Highway Safety will review your
application and prepare, for the
Administrator’s signature, a Federal
Register notice requesting public
comment on your application for an
exemption. The notice will give the
public an opportunity to review your
request and your safety assessment or
analysis (required by § 381.310) and any
other relevant information known to the
agency.
(b) After a review of the comments
received in response to the Federal
Register notice described in paragraph
(a) of this section, the Office of Motor
Carrier and Highway Safety will make a
recommendation(s) to the Administrator
to either to grant or deny the exemption.
Notice of the Administrator’s decision
will be published in the Federal
Register.
(c)(1) If the exemption is granted, the
notice will identify the provisions of the
FMCSRs from which you will be
exempt, the effective period, and all
terms and conditions of the exemption.
(2) If the exemption is denied, the
notice will explain the reason for the
denial.
(d) A copy of your application for an
exemption and all comments received
in response to the Federal Register
notice will be included in a public
docket and be available for review by
interested parties.
(1) Interested parties may view the
information contained in the docket by
visiting the Department of
Transportation, U.S. DOT Dockets,
Room PL–401, 400 Seventh Street, SW.,
Washington DC. All information in the
exemption docket will be available for
examination at this address from 10 a.m.
to 5 p.m., e.t., Monday through Friday,
except Federal holidays.
(2) Internet users can access all
information received by the U.S. DOT
Dockets, Room PL–401, by using the
universal resources locator (URL): http:/
/dms.dot.gov. It is available 24 hours
each day, 365 days each year. Please
follow the instructions online for more
information and help.

§ 381.325 Who should I contact if I have
questions about the information I am
required to submit to the FHWA or about
the status of my application for an
exemption?

§ 381.320 How long will it take the agency
to respond to my application for an
exemption?

The agency will attempt to issue a
final decision within 180 days of the
date it receives your application.
However, if you leave out important
details or other information necessary
for the FHWA to prepare a meaningful
request for public comments, the agency
will attempt to issue a final decision

You should contact the Office of
Motor Carrier Research and Standards,
Federal Highway Administration, 400
Seventh Street, SW., Washington, DC
20590. The telephone number is (202)
366–1790.
§ 381.330 What am I required to do if the
FHWA grants my application for an
exemption?

(a) You must comply with all the
terms and conditions of the exemption.
(b) The FHWA will immediately
revoke your exemption if:
(1) You fail 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 is
determined by the FHWA to be
inconsistent with the goals and
objectives of the FMCSRs.
Subpart D—Initiation of Pilot Programs
§ 381.400

What is a pilot program?

(a) A pilot program is a study in
which temporary regulatory relief from
one or more FMCSR is given to a person
or class of persons subject to the
regulations, or a person or class of
persons who intend to engage in an
activity that would be subject to the
regulations.
(b) During a pilot program, the
participants would be given an
exemption from one or more sections or
parts of the regulations for a period of
up to three years.
(c) A pilot program is intended for use
in collecting specific data for evaluating
alternatives to the regulations or
innovative approaches to safety while
ensuring that the safety performance
goals of the regulations are satisfied.
(d) The number of participants in the
pilot program must be large enough to
ensure statistically valid findings.
(e) Pilot programs must include an
oversight plan to ensure that
participants comply with the terms and
conditions of participation, and
procedures to protect the health and
safety of study participants and the
general public.
(f) Exemptions for pilot programs may
be granted only from one or more of the
requirements contained in the following
parts and sections of the FMCSRs:
(1) Part 382—Controlled Substances
and Alcohol Use and Testing;

Federal Register / Vol. 63, No. 235 / Tuesday, December 8, 1998 / Rules and Regulations
(2) Part 383—Commercial Driver’s
License Standards; Requirements and
Penalties;
(3) Part 391—Qualifications of
Drivers;
(4) Part 392—Driving of Commercial
Motor Vehicles;
(5) Part 393—Parts and Accessories
Necessary for Safe Operation;
(6) Part 395—Hours of Service of
Drivers;
(7) Part 396—Inspection, Repair, and
Maintenance (except for § 396.25); and
(8) Part 399—Step, Handhold and
Deck Requirements.
§ 381.405 Who determines whether a pilot
program should be initiated?

(a) Generally, pilot programs are
initiated by the FHWA when the agency
determines that there may be an
effective alternative to one or more of
the requirements in the FMCSRs, but
does not have sufficient research data to
support the development of a notice of
proposed rulemaking to change the
regulation.
(b) You may request the FHWA to
initiate a pilot program. However, the
decision of whether to propose a pilot
program will be made at the discretion
of the FHWA. The FHWA is not
required to publish a notice in the
Federal Register requesting public
comment on your ideas or suggestions
for pilot programs.
§ 381.410 What may I do if I have an idea
or suggestion for a pilot program?

(a) You may send a written statement
(for example, a typed or handwritten
(printed) letter) to the Federal Highway
Administrator, U.S. Department of
Transportation, 400 Seventh Street,
SW., Washington, DC 20590.
(b) You should identify the persons or
class of persons who would be covered
by the pilot program exemptions. Your
letter should include:
(1) Your name, job title, mailing
address, and daytime telephone
number;
(2) The name of the individuals or
motor carrier that would be responsible
for the use or operation of CMVs
covered by the pilot program, if there
are motor carriers that have expressed
an interest in participating in the
program;
(3) Principal place of business for the
motor carrier (street address, city, State,
and zip code); and
(4) The USDOT identification number
for the motor carrier.
(c) You should provide a written
statement that:
(1) Presents your estimate of the
potential benefits to the motor carrier
industry, the FHWA, and the general

public if the pilot program is conducted,
and describes how you developed your
estimate;
(2) Estimates of the amount of time
that would be needed to conduct the
pilot program (e.g., the time needed to
complete the collection and analysis of
data);
(3) Identifies the regulation from
which the participants would need to be
exempted;
(4) Recommends a reasonable number
of participants necessary to yield
statistically valid findings;
(5) Provides ideas or suggestions for a
monitoring plan to ensure that
participants comply with the terms and
conditions of participation;
(6) Provides ideas or suggestions for a
plan to protect the health and safety of
study participants and the general
public.
(7) Assesses the safety impacts the
pilot program exemption may have; and
(8) Provides recommendations on
how the safety measures in the pilot
project would be designed to achieve a
level a safety that is equivalent to, or
greater than, the level of safety that
would be obtained by complying with
the regulation.
(d) Your recommendation should
include a copy of all research reports,
technical papers, publications and other
documents you reference.
§ 381.415 Who should I contact if I have
questions about the information to be
included in my suggestion?

You should contact the Office of
Motor Carrier Research and Standards,
Federal Highway Administration, 400
Seventh Street, SW., Washington, DC
20590. The telephone number is (202)
366–1790.
§ 381.420 What will the FHWA do after the
agency receives my suggestion for a pilot
program?

(a) The Office of Motor Carrier and
Highway Safety will review your
suggestion for a pilot program and make
a recommendation to the Administrator.
The final decision whether to propose
the development of a pilot program
based upon your recommendation will
be made by the Administrator.
(b) You will be sent a copy of the
Administrator’s decision. If the pilot
program is approved, the agency will
follow the administrative procedures
contained in subpart E of this part.
Subpart E—Administrative Procedures
for Pilot Programs
§ 381.500 What are the general
requirements the agency must satisfy in
conducting a pilot program?

(a) The FHWA may conduct pilot
programs to evaluate alternatives to

67611

regulations, or innovative approaches,
concerning motor carrier, CMV, and
driver safety.
(b) Pilot programs may include
exemptions from the regulations listed
in § 381.400(f) of this part.
(c) Pilot programs must, at a
minimum, include all of the program
elements listed in § 381.505.
(d) The FHWA will publish in the
Federal Register a detailed description
of each pilot program, including the
exemptions to be considered, and
provide notice and an opportunity for
public comment before the effective
date of the pilot program.
§ 381.505 What are the minimum elements
required for a pilot program?

(a) Safety measures. Before granting
exemptions for a pilot program, the
FHWA will ensure that the safety
measures in a pilot program are
designed to achieve a level of safety that
is equivalent to, or greater than, the
level of safety that would be achieved
by complying with the regulations.
(b) Pilot program plan. Before
initiating a pilot program, the FHWA
will ensure that there is a pilot program
plan which includes the following
elements:
(1) A scheduled duration of three
years or less;
(2) A specific data collection and
safety analysis plan that identifies a
method of comparing the safety
performance for motor carriers, CMVs,
and drivers operating under the terms
and conditions of the pilot program,
with the safety performance of motor
carriers, CMVs, and drivers that comply
with the regulation;
(3) A reasonable number of
participants necessary to yield
statistically valid findings;
(4) A monitoring plan to ensure that
participants comply with the terms and
conditions of participation in the pilot
program;
(5) Adequate safeguards to protect the
health and safety of study participants
and the general public; and
(6) A plan to inform the States and the
public about the pilot program and to
identify approved participants to
enforcement personnel and the general
public.
§ 381.510 May the FHWA end a pilot
program before its scheduled completion
date?

The FHWA will immediately
terminate a pilot program if there is
reason to believe the program is not
achieving a level of safety that is at least
equivalent to the level of safety that
would be achieved by complying with
the regulations.

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§ 381.515 May the FHWA remove approved
participants from a pilot program?

The Administrator will immediately
revoke participation in a pilot program
of a motor carrier, CMV, or driver for
failure to comply with the terms and
conditions of the pilot program, or if
continued participation is inconsistent
with the goals and objectives of the
safety regulations.
§ 381.520 What will the FHWA do with the
results from a pilot program?

At the conclusion of each pilot
program, the FHWA will report to
Congress the findings and conclusions
of the program and any
recommendations it considers
appropriate, including suggested
amendments to laws and regulations
that would enhance motor carrier, CMV,
and driver safety and improve
compliance with the FMCSRs.
Subpart F—Preemption of State Rules
§ 381.600 Do waivers, exemptions, and
pilot programs preempt State laws and
regulations?

Yes. During the time period that a
waiver, exemption, or pilot program
authorized by this part is in effect, no
State shall enforce any law or regulation
that conflicts with or is inconsistent
with the waiver, exemption, or pilot
program with respect to a person
operating under the waiver or
exemption or participating in the pilot
program.
PART 383—[AMENDED]
2. The authority citation for 49 CFR
Part 383 continues to read as follows:
Authority: 49 U.S.C. 31136, 31301 et seq.,
and 31502; and 49 CFR 1.48.
§ 383.7

[Removed and Reserved]

3. Section 383.7 is removed and
reserved.
[FR Doc. 98–32454 Filed 12–7–98; 8:45 am]
BILLING CODE 4910–22–P

The Federal Transit
Administration (FTA) is amending its
drug and alcohol testing regulations to
allow employers to use the results of
post-accident drug and alcohol tests
administered by State or local law
enforcement personnel when the State
and local law enforcement officials have
independent authority for the tests and
when the employer is able to obtain the
results in conformance with State and
local law. Under the amendment, the
employer will be relieved of
administering post-accident drug and
alcohol tests in certain limited
circumstances. This amendment may
ease the burden of employers in testing
‘‘safety-sensitive’’ employees after an
accident has occurred; it may also
relieve some ‘‘safety-sensitive’’
employees from taking duplicative postaccident drug and alcohol tests.
EFFECTIVE DATE: January 7, 1999.
FOR FURTHER INFORMATION CONTACT: For
program issues: Judy Meade, Director of
the Office of Safety and Security (202)
366–2896 (telephone) or (202) 366–7951
(fax). For legal issues: Michael Connelly,
Office of the Chief Counsel (202) 366–
4011 (telephone) or (202) 366–3809
(fax). Electronic access to this and other
rules may be obtained through FTA’s
Transit Safety and Security Bulletin
Board at 1–800–231–2061 or through
the FTA World Wide Web home page at
http://www.fta.dot.gov; both services
are available seven days a week.
SUPPLEMENTARY INFORMATION: On
September 30, 1997, FTA published a
Notice of Proposed Rulemaking (NPRM)
proposing to amend its drug and alcohol
testing rules to allow employers to use
the results of post-accident drug and
alcohol tests administered by State or
local law enforcement personnel when
the State and local law enforcement
officials have independent authority for
the tests and the employer obtains the
results in conformance with State and
local law. FTA received seven
comments over a two-month period
SUMMARY:

I. Post-Accident Testing
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Parts 653 and 654
[Docket No. FTA–97–2925]
RIN 2132–AA56

Prevention of Prohibited Drug Use in
Transit Operations: Prevention of
Alcohol Misuse in Transit Operations
AGENCY:

Federal Transit Administration,

DOT.
ACTION:

Final rule.

Comments
Of the seven comments received, five
commenters generally favored adoption
of the proposal; two opposed allowing
employers to use the results from postaccident drug and alcohol tests
administered by an entity other than
collection site personnel observing the
collection procedures mandated by 49
CFR Part 40. Those in favor of adopting
the amendment lauded its emphasis on
obtaining an actual test result (as
opposed to requiring an agency to state
why it did not conduct a Federallymandated post-accident test), and its

ability to assist transit agencies in
promoting safety among its safetysensitive workers. Several commenters,
including those in favor of adopting the
amendment, raised the following issues:
Nothing that the proposed
amendments allowed for use of postaccident test results when those results
are ‘‘obtained by the employer,’’ two
commenters (the National Association
of Collection Sites (NACS) and the
American Public Transit Association
(APTA)) noted the problem of
employers receiving test results
administered by State or local officials.
NACS asserted that obtaining such postaccident results may require a
subpoena, while APTA suggested an
overall ‘‘difficulty’’ in an employer
receiving these results. A third
commenter (Atlantic Health Group),
while in favor of the amendment, noted
the ‘‘problem’’ of getting the results to
the correct employer official, and
ensuring that such post-accident test
results are legally acceptable.
Two commenters (NACS and APTA)
interpreted the proposal to mean either
that law enforcement officials would be
required to conduct Federal postaccident testing, or that transit systems
would ‘‘rely’’ on State and local law
enforcement authorities to perform
Federal post-accident testing.
Two commenters (NACS and
Intoximeters) expressed concern that the
State and local law enforcement
authorities may use faulty testing
equipment, and that local testing
practices (e.g., no confirmatory test, no
DOT chain-of-custody form, no fifteen
minute observation period) may result
in tests being declared invalid.
Discussion
FTA agrees with those commenters
that favor allowing employers to use the
results of post-accident drug and
alcohol tests administered by State and
local law enforcement personnel when
those officials have independent
authority to administer the test and
when the employer obtains the test
results in conformance with State and
local law. The benefits of having
properly administered post-accident
test, even if that test is not conducted
per 49 CFR Part 40, outweigh the
concerns of those opposing this
amendment.
As a preliminary matter, FTA notes
that this amendment would apply in
only a small number of instances where
the employer is unable to perform a
post-accident test according to the FTA
drug and alcohol testing regulations but
where State or local law enforcement
personnel, on their own authority, have
conducted post-accident tests. Results