Final Rule, " Motor Carrier Safety Assistance Program,"

15092

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations
The FMCSA is revising the
Motor Carrier Safety Assistance Program
(MCSAP) to comply with the
congressionally-mandated provisions of
the Transportation Equity Act for the
Zlst Century (TEA-21). This action
broadens the scope of the MCSAP
beyond enforcement activities and
programs by requiring participating
States to assume greater responsibility
for improving motor carrier safety.
These rules will now require States to
develop performance-based plans
reflecting national priorities and
performance goals, revise the MCSAP
funding distribution formula, and create
a new incentive funding program. These
rules provide States greater flexibility in
designing programs to address national
and State goals for reducing the number
and severity of commercial motor
vehicle (CMV) accidents. This action
also includes conforming amendments
to the regulations on compatibility of
State laws and regulations affecting
interstate motor carrier operations.
DATES: The effective date of this rule is
April 20, 2000.
FOR FURTHER INFORMATION C O N T A C T : Mr.
F. Daniel Hartman, National Safety
Programs Division, MSP-10, (202) 3669579, Federal Motor Carrier Safety
Administration, 400 Seventh Street,
SW., Washington, DC 20590; or Mr.
Charles E. Medalen, Office of the Chief
Counsel, HCC-20, (202) 366-1354,
Federal Highway Administration, 400
Seventh Street, SW., Washington, DC
20590. Office hours are from 7:45 a.m.
to 4:15 p.m., e.t., Monday through
Friday, except Federal holidays.
SUMMARY:

SUPPLEMENTARY INFORMATION:

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Transportation rescinded the authority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

Electronic Access
Internet users may access all
comments submitted to the Docket
Background
Clerk, U.S. DOT Dockets, Room PL-401,
The Motor Carrier Safety Assistance
400 Seventh Street, SW., Washington,
DC, in response to previous rulemaking Program (MCSAP) is a Federal grant-inaid program. The MCSAP was first
notices concerning the docket
authorized in the Surface
referenced at the beginning of this
DEPARTMENT OF TRANSPORTATION notice by using the universal resource
Transportation Assistance Act of 1982
(STAA)(Public Law 97-424, 96 Stat.
locator (URL): http://dms.dot.gov. It is
Federal Motor Carrier Safety
2079, 2154), reauthorized in the
available 24 hours each day, 365 days
Administration
each year. Please follow the instructions Commercial Motor Vehicle Safety Act of
1986 (Public Law 99-570, 100 Stat.
on-line for more information and help.
49 CFR Parts 350 and 355
3207, 3207-186), and again in the
You may download an electronic
Intermodal Surface Transportation
[Docket No. FMCSA-984878 (formerly rq copy of this document using a modem
Efficiency Act of 1991 (ISTEA) (49
FHWA Docket No. FHWA-98-4878)] - 3 s andsuitable communications software
U.S.C. 31101-31104, as amended). The
from the U.S. Government Printing
original authorization contained certain
RIN 212~AA40 (formerly RIN 212%AE46)
Office’s Electronic Bulletin Board
Service at (202) 512-1661. Internet users eligibility requirements for financial
Motor Carrier Safety Assistance
assistance, including agreement to adopt
may reach the Office of the Federal
Program
and enforce safety regulations
Register’s home page at URL: http://
compatible with the FMCSRs and
www.nara.gov/fedreg and from the U.S.
AGENCY: Federal Motor Carrier Safety
Hazardous Materials Regulations
Government
Printing
Office’s
databases
Administration (FMCSA), DOT.
(HMRs). The regulatory compatibility
at URL: http://WWW.uccess.gpo.gov/
ACTION: Final rule.
requirement remains today and ensures
nara.

Federal Register /Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations
a permanent and consistent enforcement
and safety presence throughout the
nation,
The Motor Carrier Safety Act of 1984
(Title II of Public Law 98-554, 98 Stat.
2832, 2838) created the Commercial
Motor Vehicle Safety Regulatory Review
Panel (Safety Panel) to analyze State
CMV safety requirements and develop
recommendations on how to achieve
compatibility with the Federal
regulations. The Safety Panel
recommended, in part, that the FHWA
establish procedures for the continual
review and analysis of the compatibility
of State safety laws and regulations with
Federal requirements through the
MCSAP. Consistent with these
recommendations, the FHWA
incorporated an annual review process
as a MCSAP eligibility criterion. Section
208 of the 1984 Act also authorized the
Secretary to preempt those State laws
and regulations affecting interstate CMV
safety found to be inconsistent with
Federal laws and regulations. Such a
finding would have the effect of
rendering inconsistent State laws and
regulations unenforceable.
Summary of TEA-21
The TEA-21 (Public Law 105-178,
112 Stat. 107) was signed into law on
June 9, 1998. Section 4003 of the TEA21 authorized the MCSAP at the
following funding levels for FY 1998
through FY 2003: $79 million for FY
1998, $90 million for FY 1999, $95
million for FY 2000, $100 million for FY
2001, $105 million for FY 2002, and
$110 million for FY 2003.
Section 4002 of the TEA-21 adds a
new section 31100 to title 49 of the U.S.
Code which revises the purpose of the
grant program. The goals and directives
outlined in this section closely parallel
the concepts and principles of a
performance-based program. The
changes foster greater coordination and
cooperation between State and Federal
jurisdictions in improving CMV safety.
The changes also give States more
flexibility to address their particular
safety issues through the MCSAP.
Section 4002 of the TEA-21 also sets
forth four current program goals:
(1) Investing in activities achieving
maximum accident reductions.
(2) Assessing and improving
statewide program performance by
setting program outcome goals,
improving information and analysis
systems, and monitoring program
effectiveness.
(3) Ensuring adequate training of
enforcement personnel.
(4) Advancing promising technologies
and safe operating procedures.

Section 4003 of the TEA-21 has
expanded the definition of “commercial
motor vehicle” to include vehicles with
a gross vehicle weight (GVW) or gross
vehicle weight rating (GVWR) of at least
10,001 pounds. This amendment
simplifies enforcement efforts in cases
where a vehicle with a GVW of more
than 10,001 pounds does not have a
corresponding manufacturer’s GVWR
plate or is being operated in excess of
the manufacturer’s GVWR. The
hazardous materials portion of the
definition of “commercial motor
vehicle” in 49 U.S.C. 31101 is also
revised to make it consistent with the
“commercial motor vehicle” definition
in 49 U.S.C. 31132.
A key provision of TEA-21 is the
section 4003 requirement that MCSAP
participating States implement
performance-based CMV safety
programs by FY 2000. This provision
shifts the emphasis of State programs
from measuring activity levels or input
(e.g., the number of vehicles inspected)
to focusing program effort on outcomes
(e.g., reductions in CMV accidents,
fatalities, and injuries). States have
reacted very positively to this change
and all participating MCSAP
jurisdictions have implemented
performance-based programs.
Section 4003 also revised the grant
eligibility criteria and the State plan
format to require references to
“improving” CMV safety and
“hazardous materials” enforcement.
This section emphasizes that the
principal goal of the MCSAP is not
simply to enforce regulations but to
encourage States to assume the
responsibility for finding ways to
actively improve CMV safety. It also
reinforces the concept that it is equally
important to adopt and enforce both the
FMCSRs and the HMRs. Additional
requirements include (1) establishing
programs ensuring proper and timely
correction of safety violations noted
during roadside inspections, and (2)
ensuring that roadside inspections are
conducted at locations that will
adequately protect the safety of both
drivers and enforcement personnel.
These provisions codify and reinforce
longstanding best practices of State
CMV safety programs.
The legislation expands the existing
requirement that State agencies
coordinate the Commercial Vehicle
Safety Plans (CVSP), originally called
the State Enforcement Plan (SEP), with
the State Highway Safety Plans under 23
U.S.C. 402. The TEA-21 mandates
States participating in MCSAP to
coordinate the CVSP and data collection
and information systems with the State
agency administering highway safety

15093

programs under title 23, U.S. Code. The
January 1,1994, deadline for
SAFETYNET participation, as required
by 49 U.S.C. 31102(b)(M), has been
deleted since all States have met the
requirement. Each jurisdiction receiving
MCSAP funding is required to
participate in SAFETYNET and other
information systems. There is also a
new requirement for States to exchange
information in a timely manner. These
requirements encourage States and
agencies within a State to share best
practices and develop broader-based
safety programs.
Section 4003(f) of TEA-21 removes
the current funding set-asides for
research and development, traffic
enforcement, hazardous materials
training, public awareness, and
demonstration of technologies and
methodologies. These set-asides were
created to encourage uniform State
implementation of significant national
programs but limited States’ flexibility
in allocating their MCSAP resources.
The set-asides have been replaced by
new allocation criteria allowing the
administrative flexibility needed for
States to design programs targeting their
unique safety problems as well as
meeting national priorities. The new
funding allocation allows up to 5
percent of MCSAP funds to be
designated for States, local
governments, and other persons using
and training qualified personnel for
high priority activities and programs
that improve CMV safety and
compliance with safety regulations. Up
to 5 percent of MCSAP funds will also
be available to States, local
governments, and other persons using
and training qualified personnel to carry
out border CMV safety programs,
enforcement activities, and other
projects. The Secretary may also
reimburse State agencies, local
governments, or other persons up to 200
percent for public education activities
relating to border or high priority
activities, programs, and projects.
The overall MCSAP funding consists
of four parts:
1. Basic Program Funds emphasizing
uniform roadside driver and CMV safety
inspections, data collection and
reporting, traffic enforcement, drug and
alcohol enforcement, educational
activities, compliance reviews, and
current complementary activities.
2. Incentive Funds encourage States to
improve CMV accident performance and
to meet other safety performance
criteria.
3. High Priority and Border Activity
Funds for States to improve CMV safety
and compliance with safety regulations
and to carry border CMV safety

15094

Federal Register /Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

programs, enforcement, and other
projects.
4. Administrative set-aside of 1.25
percent to cover program administration
and State personnel training costs.
General Discussion of the NPRM
The notice of proposed rulemaking
(NPRM) to amend the regulations
governing the MCSAP and to request
comments was published in the Federal
Register on March 9, 1999 (64 FR
11414). In the preamble to the NPRM,
proposed changes to the regulations
were thoroughly explained.
Discussion of Responses to the NPRM
The comment period of the NPRM
closed on May 10, 1999. Forty-three
comments were received. Of these,
thirty-three were from MCSAP agencies,
six were from various safety
associations, one was from a trucking
company, one from a Federal agency,
one from the Upper Great Plains
Transportation Institute, and one from
an individual.
Specific Concerns
Definitions
Four commenters believed that “large
truck” should be defined.
The FMCSA agrees and, for the
purpose of distributing Incentive Funds
for reducing the number and rate of
large truck-involved fatal accidents, is
using the Fatality Analysis Reporting
System (FARS) definition of a “large
truck.”
The State of Louisiana supported the
revised definition of a CMV.
The term “performance factor” has
been deleted, since the proposal to
adjust the States’ basic program funding
level by applying a factor based upon a
State’s reduction in its CMV accident
rate has been removed.
While the calculation of “accident
rate” and “lo-year average accident
rate” were described in detail in the
NPRM, those terms were not included
in the definitions section. Those
definitions have been added. For the
purpose of determining States’
eligibility under 5 350,327(b)(2)
Incentive Funds, the definition of “loyear average accident rate” has been
added to Q 350.105. For example, for the
FY 2000 distribution:
1. The FMCSA would calculate a
State’s IO-year average accident rate
period from 1987 through 1996. The
average IO-year accident rate would be
calculated by dividing the number
representing the State’s aggregated
number of large truck-involved fatal
crashes as reported in the FARS from
1987 through 1996 by the number

representing the State’s aggregate
vehicle miles traveled (VMT) as
reported by the FHWA for the same IOyear period.
2. The FMCSA would then calculate
the State’s 1997 accident rate by
dividing the number of large truckinvolved fatal crashes as reported in the
FARS by the number representing the
State’s vehicle miles traveled (VMT) and
compare that to the average lo-year
accident rate.
3. If a comparison reveals the State’s
accident rate has increased, the State
would not be eligible to receive
accident-rate incentive shares for the
current funding year since there was no
reduction.
4. If a comparison reveals that the
accident rate has decreased, the State
would be eligible to receive accidentrate incentive shares for the current
funding year.
5. If a comparison reveals the State’s
1997 accident rate is within the lowest
10 percent of accident rates and the
1997 rate is the same as the State’s loyear average accident rate, the State
would be eligible to receive accident
rate incentive shares for the current
funding year.
6. The calculations in steps 1 through
5 would be repeated in FY 2001 through
2003, adjusting the lo-year period and
average and using the most recent
calendar year for which data are
available for comparison to the IO-year
average.
Finally, the term “crash” has been
replaced by the term “accident”
throughout the preamble and the rule to
more accurately reflect the nature of our
CMV safety program.

fatal accidents, which can be caused by
factors not directly controllable by the
State’s safety programs (e.g., weather), is
unfair.
The FMCSA agrees that applying a
performance factor to the basic program
fund allocation could have a negative
effect on MCSAP programs witfin a
State and, therefore, will remove the
performance factor (proposed 5 350.325)
from the Basic Program Funds formula
process.
The States of Idaho, Vermont,
Wyoming, and Montana, and the
American Trucking Associations (ATA),
questioned the use of population as a
formula factor, stating that population is
not a direct measure of commercial
vehicle activity.
Because the major goal of the MCSAP
is to reduce the number and severity of
CMV accidents and population provides
an indirect measure of accident
exposure, the FMCSA has determined
that population is a relevant formula
factor and will be retained in the basic
formula.
California and New York, two States
with large urban populations,
recommended the use of lane miles
rather than highwa road miles.
The FMCSA ana Yyzed the use of lane
miles as a potential formula factor and
found that it correlated highly with
highway road miles. Because of this
high correlation and because highway
road miles were already an accepted
factor, the FMCSA decided that there
was no need to change from highway
road miles to lane miles.
The States of Idaho and Wyoming
recommended the use of CMV miles
traveled (CVMT) rather than total VMT
in the formula, stating that nonBasic Program Funds Allocation
commercial vehicle travel has little to
Formula
do with CMV safety activities.
While most of the respondents
The FMCSA considered the use of
support the performance-based concept, CVMT as a factor. The CVMT
the greatest source of disagreement on
(calculated as the VMT of combination
the Basic Program Funds allocation
and heavy single-unit trucks) is highly
formula concerned the new performance correlated to total VMT but has the
factor. Twenty-three different comments disadvantage of requiring additional
suggested that the performance factor be calculations. In addition, one State does
dropped from the formula or that some
not report VMT data for CMVs. Finally,
measure other than accidents be used to a majority of fatal accidents involving
determine performance. States believe
CMVs also involve other vehicles. As a
that the Basic Program Funds should be result, the FMCSA decided to use total
left intact in order to provide funding
VMT as a direct indicator of accident
continuity from year to year. Most States exposure.
with a low fatality count were
Oregon and Montana suggested that
concerned that a single fatal accident
highway road miles within federally
could significantly affect the amount of
controlled lands (e.g., those areas
funds received. It was noted that using
controlled by the Bureau of Land
the fatal accident rate both to penalize
Management (BLM)) and any road open
a State’s receipt of Basic Program Funds to CMVs be included in the mileage
and also to fail to reward a State with
factor.
The source of the mileage used in the
Incentive Funds appears to be double
MCSAP formula is the totals column of
jeopardy. States believed that reducing
Table HM-10 of the FHWA’s
a State’s Basic Program Funds based on

Federal Register /Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations
publication, “Highway Statistics.” 1
This table includes both rural and urban
highway road miles as submitted by the
States to the FHWA. The FMCSA
acknowledges that the exclusion of the
BLM road miles from the FHWA’s
statistics beginning with 1998 could
adversely affect CMV safety in States
with a significant number of BLM road
miles. Since States perform safety tasks
on these roads, the FMCSA has decided
to use the 1997 FHWA Road Miles
calculation through FY 2003.
The Commonwealth of the Northern
Mariana Islands and the Government of
Guam requested reconsideration of
reducing grants to the Territories. The
NPRM noted that grants were proposed
to be reduced from prior funding levels
because Territories had lower
population levels, road miles, and VMT
and did not report special fuel
consumption. These commenters
explained that their special geographic
situation and taxation system were
different from the 50 States, which
caused their reporting system to be
different. They also asserted that a
reduction in funding level would
adversely affect their programs.
The FMCSA acknowledges the
difference in reporting requirements but
significant differences remain between
the Territories and the 50 States in
terms of population and road miles.
With the increased funds authorized by
the TEA-21, the FMCSA will add more
funding to the Territories (Guam,
American Samoa, Northern Mariana
Islands, and the Virgin Islands) and
hold them closer to their FY 1999
funding level. This amount is fixed at
$350,000 and will not change through
FY 2003.
The State of Idaho, which has a large
percentage of Federal land, suggested
using Federal acreage as a formula factor
because the building of new roads is
restricted within Federal lands, which
penalizes the State’s ability to increase
its total highway mileage.
The FMCSA considered acreage and
rejected it because the existence of large
land areas, without extensive road
miles, simply does not relate to accident
potential.
The Owner-Operator Independent
Drivers Association (OOIDA)
recommended that the number of CMV

accidents be used as a formula factor,
where the number of accidents is
directly proportional to the amount of
money received (i.e., States that have
more accidents would receive more
funding).
The FMCSA considered the
possibility of using CMV accidents as a
factor in the formula for distribution of
Basic Program Funds. Incorporation of
CMV accidents was rejected because (1)
there is not currently a valid source of
complete CMV accident data, (2) the
four formula factors, as described,
apportion funds to those States with the
greatest accident exposure, and (3) using
accidents as a factor does not place
emphasis on accident reduction (a
performance oal).
North Caro Hina suggested that a State’s
economy should be reconsidered as a
formula factor because a booming
economy would directly correlate to the
number of CMVs traveling in a State.
The FMCSA determined that the use
of special fuels (e.g., diesel) was a better
measure of CMV activity in a State.
Louisiana suggested using traffic
density as a factor.
The FMCSA examined traffic density
in detail because it appeared to be a
reasonable measure of accident
potential. For States that are
consistently urban (high traffic density;
e.g., Washington, D.C.) or consistently
rural (low traffic density; e.g., North
Dakota), a measure of traffic density
makes sense. For States with a
combination of very urban areas and
great expanses of rural areas (e.g.,
Texas), however, the logic of an overall
traffic density factor for the entire State
fails. Therefore, traffic density will not
be incorporated as a factor in the
formula.
The State of Illinois asserted that if a
performance factor had to be applied to
the Basic Program Funds allocation,
then strong consideration should be
given to adding a comparison of each
State to the National accident rate.
Since the performance factor has been
deleted, this recommendation is no
longer a consideration.
Distribution of Basic Program Funds
and Incentive Funds
Ten respondents disagreed with
dividing the MCSAP funds into the
Basic Program Funds and Incentive

MCSAP FUNDS DISTRIBUTION BASED

ON

TEA-21

AND

15095

Funds by percentages which changed
each year (i.e., a 90-10 split in the year
2000; 85-15 split in the year 2001; 8O20 split in the year 2002; and 75-25
split in the year 2003, etc.). While the
National Association of Governors’
Highway Safety Representatives and the
Commercial Vehicle Safety Alliance
(CVSA) recommended that the Basic
Program Funds not be decreased in
order to provide more funding for
Incentive Funds, State agencies in New
York, Minnesota, and Illinois
recommended different percentages for
the splits. States commented that the
final MCSAP Basic Program Funds
distribution should be continued at the
States’ current levels of funding to
encourage enrichment or enhancement
of those efforts in areas of greatest safety
potential.
After careful consideration of these
comments, the FMCSA has adjusted the
percentages for dividing the MCSAP
funds. The revised percentages are
shown in the table below. The MCSAP
Basic Program Funds distribution has
been increased to provide funding in FY
2000 above the FY 1999 funding amount
of $80,000,000, thereby providing a
modest growth in the Basic Program
Funds through FY 2003. Therefore, the
Incentive Funds have been recalculated
to begin at 5 percent of the total MCSAP
funds available in FY 2001, with an
increase of 3 percent per year, with the
final percent in FY 2003 at 11 percent.
The MCSIA has provided additional
funding for the motor carrier safety
grant program. Section 103(b)(l) of the
MCSIA increased the amount available
in fiscal years 2001, 2002 and 2003 for
motor carrier safety grants by $65
million per fiscal year. This amount was
reduced by a total of $10 million per
fiscal year for FY’s 2001 through 2003
to fund the Commercial Motor Vehicle
Crash Causation Study (section 224(f),
$5 million) and data collection and
analysis activities (section 225(f), $5
million) of the MCSIA. Accordingly, the
table entitled “MCSAP Funds
Distribution Based on TEA-21 and
MCSIA Authorization Levels” has been
revised to reflect a net increase of
$55,000,0OO per fiscal year in FY’s 2001
through 2003 for motor carrier safety
grants.

MCSIA AUTHORIZATION LEVELS

Fiscal year

I

2000

I

2001

I

2002

1

Total MCSAP Funds ......._...._...._..._...._.............__..............................................

I

$95,000,000

I

$100,000,000

I

$105,000,000

I

1 “Highway Statistics” is published annually by
the Fedora1 Highway Administration. It is available

for inspection and copying as prescribed at 49 CFR
part 7 and may be purchased from the

2003
$110,000,000

Superintendent of Documents, U.S. Government
Printing Office, Washington, DC 20402.

15096

Federal Register /Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations
MCSAP FUNDS DISTRIBUTION BASED

ON

TEA-21

AND

MCSIA AUTHORIZATION LEVELS-continued
2000

Fiscal year

Administrative Takedown* . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
High Priority Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Border Activities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
Basic Program Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

1,187,500
4,750,ooo
4,750,ooo
84,312,500

Incentive Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
l
l

2001

2002

2003

55,000,000

55,000,000

55,000,000

155,000,000
1,937,500
7,750,ooo
7,750,ooo
130,684,375
(95%)
6,878,125
(5%)

160,000,000
2,000,000
8,000,OOO
8,000,OOO
130,640,OOO
(92%)
11,360,OOO
(8%)

165,000,OOO
2,062,500
8,250,OOO
8,250,OOO
130,329,375
(89%)
16,108,125
(11%)

Minimum of 75 percent is dedicated for training State Personnel.
* No Incentive Funds were distributed in fiscal year 2000.

The table entitled “MCSAP Funds
Distribution” has been removed from
proposed 5 350.313(d) due to the
uncertainty that the annual
congressional MCSAP appropriation
will be identical to the current
authorized funding level.
Incentive Funds Allocation
Eight States and two organizations
asserted that the philosophy of
rewarding States for cutting down on
their accident problem was illogical.
They stated that the funds should go to
those States with the biggest accident
problems in order to deal with those
problems.
The objective of the MCSAP is not to
distribute funds to the States, the
objective is to reduce accidents, injuries,
and fatalities. Simply providing more
funds to States with increased
accidents, injuries and fatalities
provides no incentive to improve safety.
However, the four-factor formula for
allocating Basic Program Funds, while
not based on the number of accidents,
does provide the greatest amount of
funds to those States with the greatest
potential for accident problems.
Ten States and one safety advocacy
group disagreed with the use of
population in the determination of the
accident rate and suggested using all
VMT rather than population in the
calculation. One comment indicated
that population is a fair basis for
allocating basic funding because
population is an indirect measure of
accident potential. However, for
determining the accident rate, use of
VMT was recommended because VMT
links fatalities to the actual rate of
exposure.
The FMCSA agrees with this set of
comments. The definition of fatalaccident rate has been changed to the
total number of large truck-involved
fatal crashes as reported in FARS for
each State divided by the total VMT for
each State for all vehicles.

Seven States and the ATA
recommended using the number of CMV
accidents rather than the number of fatal
accidents in determining the accident
rate. Various reasons were given, First,
the costs of crippling injuries and
property damage are significant, even if
a fatality is not involved. Second, the
difference between a fatal accident and
a serious injury accident is often a
difference of luck or the physical
condition of the victim. Third, a small
State may have relatively few fatal CMV
accidents and any fluctuation would
have profound impacts upon the
accident rate. Using the total number of
CMV accidents would have less impact
from year to year.
The FMCSA basically agrees with all
of these arguments. However, the reason
for not using all CMV accidents at this
point is the lack of a mature, reliable
data base. The Motor Carrier
Management Information System
(MCMIS) accident module will
eventually be an excellent source for
CMV accident data. At this time,
however, not all States are reporting
accurate and consistent data to MCMIS.
As MCMIS accident reporting by the
States improves, the agency may
consider using CMV accidents as the
safety performance measure for MCSAP
funding.
The States of Louisiana, Maryland,
South Carolina, and South Dakota, the
National Association of Governors’
Highway Safety Representatives, and
the ATA disagreed with the proposal to
compare the ten-year average accident
rate with the current one-year accident
rate. The ATA suggested comparing a
three-year average with the ten-year
average to prevent unwarranted
penalties because of random annual
fluctuations in the number of accidents
in States with relatively few fatal
accidents.
The purpose of comparing the tenyear average to the current year’s fatal
accident rate is to give an incentive to
reduce accidents. The purpose of

comparing one year’s accidents and
accident rate to the average of the
preceding 10 years is to determine the
effectiveness of that year’s accident
reduction strategies. For this reason, the
FMCSA will retain the proposed
method of calculation.
Massachusetts commented that the
definition of accident rates appears to
change between the description of Basic
and Incentive Funds.
The word “fatal” is added to the
description of accident rates in
QQ 350.317 and 350.327.
The Association of Waste Hazardous
Materials Transporters questioned the
fairness of allocating MCSAP Incentive
Funds based on all CMV-involved fatal
accidents and asserted that the accident
rates should be derived using the
number of accidents attributable to the
CMV (based on law-enforcement
citations).
The FMCSA does not agree with this
recommendation because the issuing of
citations as a result of an accident (as
recorded in the FARS) does not always
provide a complete determination of
“fault.”
Fourteen commenters recommended
that the FMCSA not use accident rates
for allocation of Incentive Funds. Three
reasons were given:
1. An improved accident rate is not
always the result of State efforts, and
accidents may increase even after a
State has put forth its best effort to
reduce accidents.
2. States with low numbers of
accidents will be penalized by very
small changes in the number of
accidents, even when the changes may
not be statistically significant.
3. States will be penalized for
improvements in accident reporting.
To lessen the impact of the accident
statistics in the Incentive Funds
allocation process, one commenter
suggested allotting equal shares to each
factor. Another comment was to use
positive rather than negative incentive
measures (e.g., assign incentive points

Federal Register /Vol. 65, No. 55 /Tuesday, March 21, 20001Rules and Regulations
for proactive program development
plans).
Incentive Funds do not “penalize” the
States. These are additional funds
beyond the Basic Program Funds
allocation and serve to reward States
which have seen a reduction in the
number of fatal accidents or the fatal
accident rate and an improvement in
other areas. If a State’s performance
continues to improve, the State will
continue to receive Incentive Funds.
Proactive program development should
result in a reduction in accidents,
Reducing accidents is a positive
measure.
The State of New York noted that the
approach to incentive funding fails to
recognize States that have developed
successful CMV safety programs. New
York commented that “it is designed to
make it relatively easy for states with
poorer programs to get significant
incentive funding for modest gains even
though they are at the bottom of any
reasonable comparative national
ranking.”
The FMCSA recognizes that States
with the best (or lowest) fatal accident
rates may have difficulty reducing those
rates further, while States with higher
accident rates have more room for
improvement. To encourage those States
with the lowest fatal accident rates who
were unable to reduce-but were able to
maintain-those outstanding fatal
accident rates, three incentive shares
will be awarded.
Although comments generally
supported the concept of incentive
funding, comments from nine States and
the CVSA indicated concern that
establishing an incentive award for
timely upload of CMV accidents may
actually have the effect of reducing the
completeness and accuracy of the data.
These States also maintain that they
have no control over the speed with
which certain accident data is reported
to them, thereby resulting in late
reporting to the FMCSA.
We are sympathetic to the States’
accident reporting challenges,
particularly their dependence on law
enforcement agencies outside the lead
MCSAP agency jurisdiction, but the
collection of complete, accurate and
timely accident data is vital to reducing
fatalities and accidents. We cannot
compromise our safety goals due to a
fear that States will not report accident
information in order to prevent their
timeliness record from suffering. A
sufficiently populated accident database
provides the CMV accident information
necessary to profile high-risk carriers
and drivers and establish national
policies and regulations that promote
safety. More importantly, however, a

complete and timely accident database
enables the States to evaluate current
safety and enforcement programs, to
formulate effective future programs, and
to allocate resources based upon sound
data-elements of an effective
performance-based program. As such,
the FMCSA will retain timely accident
data upload as an incentive element,
and will continue to work with the
States in seeking ways to improve Statewide accident reportin mechanisms.
In addition, the weig Yl ting of the
incentive categories has been adjusted
to emphasize the importance of fatality
reduction compared to other program
element improvements.
The States of California, Illinois,
Michigan, and New York commented
that the proposed method of calculating
and distributing incentive award funds
failed to reflect the relative size of
States’ Basic Program Funds. The
FMCSA agrees and has modified the
formula to weight shares based upon a
State’s percentage of participation in the
Basic Program Funds distribution
formula.
The total of all States’ shares will be
divided into the dollar amount of
Incentive Funds available, thereby
establishing the value of one share. Each
State’s incentive allocation will then be
determined by multiplying the State’s
percentage of participation in the
formula allocation of Basic Program
Funds, by the number of shares it has
that year, by the dollar value of one
share.

15097

Tolerance Guidelines and the FMCSRs.
The State of Michigan commented that
no State would be eligible for any
funding for incompatibility based on
$j 350.203, and that the FMCSA should
amend that section.
Eliminating partial funding from the
NPRM for States that currently have
incompatible intrastate regulations was
an administrative oversight and has
been corrected in the final rule under
Q 350.335. Florida, Maine and South
Dakota will continue to receive 50
percent funding of their Basic Program
Funds formula allocation until the
incompatibilities are removed, and
provided no further incompatibilities
have been created. However, any State
that becomes incompatible, other than
the existing three incompatible States,
will not be eligible for funding.
The State of Maine (Department of
Public Safety) commented on
Q 350.341(d) of the Tolerance Guidelines
prohibiting exemptions to the FMCSRs
based upon the distance a motor carrier
or driver operates from the work
reporting location. Maine has three
regulatory variances which exempt from
all of Parts 391 and 395, and portions of
396, intrastate carriers, except those
transporting Hazardous Materials,
whose drivers operate within a 100 airmile radius of their terminal. Maine
stated: “[IIt is the position of the State
of Maine that our exemption does not
impact highway safety and that the
penalty imposed restricts the ability of
the State of Maine to maximize our
ability to impact highway safety by
Use of FARS Data for the Incentive
limiting activities under the MCSAP
Funds
Program.”
Maine believes that the FMCSA
Six States commented about using
FARS data rather than the office’s own
would circumvent the intent of
Congress through administrative
SAFETYNET accident data for all
accidents to determine incentive shares. rulemaking if 5 350.341(d) is adopted.
Currently, the FMCSA SAFETYNET
The substance of 5 350.341(d) has been
Accident Module is not sufficiently
part of the Tolerance Guidelines since
populated to be used to distribute funds. September 8,1992. Until the study
The agency is working aggressively with required by section 4032 of TEA-21 is
States to record all required CMV
complete, and a final decision is made,
accidents in SAFETYNET. As accident
the States of Maine, Florida, and South
data collection improves, the agency can Dakota will continue to receive 50
use it as the basis for calculating
percent of their MCSAP Basic Program
incentive funding. The FARS is a
Funds.
nationally recognized source of fatal
Conditions To Qualify for Basic Program
accident data and the most consistent
and reliable data source available at this Funds
California commented that the
time.
FMCSA did not specifically identify
Partial Funding (50 Percent) Basic
those parts of the FMCSRs that the
Program Funds
States are required to adopt or be
The States of Florida, Maine, and
compatible with in order to qualify for
South Dakota commented that there was and receive MCSAP funds.
The FMCSA did not intend to extend
no provision in the NPRM for continued
the scope of required compliance
partial (50 percent) funding of the
beyond Parts 390 through 397. That is
MCSAP Basic Program Funds for those
the clear meaning of Q 350.201.
States with existing incompatible
However, 5 350.201(a) has been
intrastate regulations outside the

15098

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

rewritten to clarify which parts of the
FMCSRs and HMRs must be adopted by
the States to qualify for MCSAP
funding. This paragraph incorporates
exceptions previously found in the
“Conditions for basic grant approval”
and the “Tolerance Guidelines.”
Maintenance of Effort
Section 103(c) of the MCSIA amends
the maintenance of effort required in the
ISTEA by changing the base period to
fiscal years 1997, 1998, and 1999 for
measuring the level of effort. The effect
of this change is to greatly increase the
level of commercial motor vehicle safety
activities that the State must maintain to
participate in MCSAP. The intent of the
maintenance of effort provision is to
ensure that Federal funds supplement
State funds and do not replace them.
Further, it ensures that States commit to
continuing their past efforts in
commercial motor vehicle safety
activities.
Enforcement of Registration and
Financial Responsibility Requirements
Section 207 of the MCSIA amended
49 U.S.C. 31102(B)(l)(R) to read as
follows (new material italicized): “(R)
ensures that the State will cooperate in
the enforcement of registration
requirements under section 1.3902 and
financial responsibility requirements
under sections 2 3906, 31138, and
31139, and regulations issued
thereunder.” The references to 5 13902
(“Registration of motor carriers”) and
13906 (“Security of motor carriers,
brokers, and freight forwarders”) merely
clarified the meaning of the previous
text by identifying the statutory
provisions that deal with registration
and financial responsibility
requirements. Since Sec. 207 did not
substantively change subparagraph (R),
the FMCSA finds good cause, pursuant
to 5 U.S.C. 553(b)(3)(B) of the
Administrative Procedure Act, to
incorporate these changes into
5 350.201(t) without prior notice and
opportunity for comment.
Local Jurisdictions
The State of California, the OOIDA,
the National Association of Governors’
Highway Safety Representatives, and
the CVSA were strongly opposed to
local jurisdictions participating in High
Priority MCSAP funding.
The FMCSA believes that under very
limited circumstances, it may be
desirable to fund local agencies’ CMV
safety program activities. In those cases,
the local agency receiving a grant would
be held to essentially the same
qualification, certification, and
administrative requirements as any

other MCSAP jurisdiction, and in any
event be required to coordinate all
activities through the lead MCSAP
agency in that State.

FHWA are now regulations of the
FMCSA.
The Tolerance Guidelines in the
current part 350 set forth the limited
deviations from the FMCSRs allowed for
Compatibility
laws and regulations that apply only to
Parts of 49 CFR pertaining to the
motor carriers, CMV drivers and CMVs
FMCSRs and HMRs which were
engaged in intrastate commerce that are
inadvertently omitted from the NPRM
not subject to Federal jurisdiction.
but are in the current part 350, appendix Section 350.341(h)(l) describes
C, have been added to § 350.337. The
variances in place prior to the
response to the question found at
implementation of the requirements of
Q 350.337 in the NPRM was not
the Surface Transportation Assistance
sufficiently clear about the extent to
Act of 1982. Presumably, the States who
which State laws governing interstate
had variances grandfathered under
commerce may differ from Federal law
5 350.341(h)(l) ensured that they were
and still be compatible. The response
based upon appropriate performance
has been rewritten to agree with the
standards and had no adverse effect
regulatory adoption requirements and
upon safety. Since the driver
exceptions stated in Q 350.201. The
qualification standard in § 350.341(h)(2)
FMCSA has added the phrase “and
is consistent with the requirements of
provide an orderly transition to full
49 CFR part 381-Waivers, Exemptions,
regulatory adoption at a later date” in
and Pilot Programs, no change has been
5 350.341(g). This phrase is in the
made to the Tolerance Guidelines in
current Tolerance Guidelines in part
5 350.341(h)(2).
350 and was inadvertently left out of the
California commented that
NPRM. There was no intention of
participating States should be given
changing the standard for grandfather
latitude to enact regulations and statutes
clauses.
that are compatible with Federal
The Wisconsin Motor Carriers
regulations but not identical, The State
Association and the Wisconsin DOT
suggested that the FMCSA should retain
both commented about the addition of
the terminology “having the same effect
the words “engaged exclusively in
as” in lieu of the word “identical.”
intrastate commerce” with regard to the
It was an administrative oversight to
Tolerance Guidelines in 5 350.339.
leave out the phrase “having the same
Their comments suggested that this
effect as.” We have added it to the
phrase could be interpreted to require
language in Q 350.105 only for the
any motor carrier that uses the same
FMCSRs. The word “identical” will also
drivers and vehicles in both interstate
remain.
and intrastate commerce to be subject
California commented that under
only to the U. S. DOT jurisdiction and
5 350.345, a State should be able to
the FMCSRs rather than allowing those
apply for additional variances from the
carriers, drivers and CMVs to be subject Tolerance Guidelines and have those
to State rules when operating on an
variances apply to interstate commerce.
intrastate basis.
California’s request would undermine
The FMCSA agrees with these
the congressional intent and purpose of
comments and has removed the word
the MCSAP to ensure uniformity of
“exclusively” from 55 350.339, 350.341, regulations and enforcement among the
and 350.343.
States. Since the inception of the
The U.S. Equal Employment
program, the agency has required each
Opportunity Commission commented
State to enforce uniform motor carrier
and urged the FMCSA to revise the State safety and hazardous materials
waiver standard in 5 350.341(h) to be no regulations for both interstate and
more restrictive than the newly adopted intrastate motor carriers and drivers.
waiver standards under section 4007 of
Safety standards in one State must be
TEA-2 1.
compatible with the requirements in
another State in order to foster a
The FHWA’s interim final rule
uniform national safety environment.
implementing section 4007, “Federal
The purpose of variances is to set forth
Motor Carrier Safety Regulations;
the limits within which a State can
Waivers, Exemptions, and Pilot
deviate from the FMCSRs and still be
Programs; Rules and Procedures,” [63
considered compatible for funding
FR 67600, December 8, 19981 applies to
purposes under 49 CFR 350. But these
interstate commerce. As indicated
variances are applicable only to those
earlier in this notice, the Secretary has
State rules and regulations where the
rescinded the authority previously
U.S. Department of Transportation does
delegated to the FHWA to carry out
not have jurisdiction, namely intrastate
motor carrier functions and operations.
commerce. Variances are not available
Therefore, the regulations issued by the

Federal Register /Vol. 65, No. 55 /Tuesday, March 21, 2000/Rules and Regulations
for State rules and regulations governing
interstate commerce.

15099

to ensure close coordination of State
defect or deficiency listed on the driver
highway safety programs. State highway vehicle inspection report which would
safety programs aimed at passenger cars likely affect the safety of operation of
Commercial Vehicle Safety Plan (CVSP) and drivers and those aimed at CMVs
the vehicle.” Section 396.9 also requires
Nine comments dealt with the CVSP.
and CMV drivers should complement
that a motor carrier shall certify that all
Nevada was opposed to including a
each other to the fullest possible extent. repairs have been made and return the
safe inspection location requirement in
Both the section 402 State and
signed inspection form to the issuing
the State Certification. Nevada indicated community grant program and MCSAP
agency within 15 days following the
most States have inspection sites that
are data-driven and performance-based
inspection. Furthermore, the North
are adequate or barely adequate for CMV programs designed to reduce accidents,
American Uniform Out-of-Service
inspections and some are not safe under injuries, and fatalities. The Congress
all weather conditions and certain times intends for these programs to share data, Criteria states that “violations other
than out-of-service conditions detected
of the da
information, and program plans to
during the inspection process will not
The 08 IDA and the ATA SuDDorted
reduce fatalities. The States must certify preclude the completion of the current
the requirement.
that information exchange or
Since section 4003(c)(8) of TEA-21
trip or dispatch. However, such
coordination of safety plans was
requires that States ensure roadside
violations must be corrected or repaired
accom lished.
inspections will be conducted at a
prior to redispatch.”
The B OIDA, Advocates for Highway
location that is adequate to protect the
and Auto Safety (AHAS), and the States
The Upper Great Plains
safety of drivers and enforcement
of Iowa and Maryland commented about Transportation Institute provided
personnel as a condition for Basic
the timely and proper correction of all
comments to the docket on suggested
Program Funds, that requirement must
CMV safety violations. The OOIDA
revisions for Q 350.213, “What must a
be part of the State Certification. The
commented that there are no standards
CVSP include.” The FMCSA agrees that
language has been revised to require
which define the “timely and proper”
the CVSP guidelines should be
that the MCSAP agency have
correction of CMV violations. Iowa
consistent with the Performance-Based
departmental policies stipulating that
commented that the term “all” should
MCSAP training. The following
roadside inspections are conducted at
be eliminated. The AHAS expressed its
paragraphs have been amended: “(a) A
locations adequate to protect the safety
concern for eliminating “the prior
statement of the State agency goal or
of drivers and enforcement personnel.
regulatory requirement that states enact
mission” is amended to read “(a) A
The FMCSA is adding three items to
and enforce an out-of-service (00s)
General overview section that must
the State Certification to be consistent
verification program in favor of a
include the following two items: (1) A
with the conditions a State must meet
‘certification acceptance’ that the States
statement of the State agency goal or
to qualify for Basic Program Funds: (1)
have a process in place for timely and
mission.” Paragraph “(b)” is now “(2)”
The State will participate in
proper correction of all CMV safety
under Paragraph “(a)” and the phrase
SAFETYNET and ensure information is violations noted during inspections.”
“comprehensive evaluation” is changed
exchanged with other States in a timely
Maryland is concerned that the State
to “program summary.” The sentence,
manner; (2) The State will ensure that
has no control over interstate carriers
“Evaluation data should measure
requirements relating to the licensing of not domiciled in their State.
program progress in one-year
CMV drivers is enforced, including
Section 4003(c)(4) of TEA-21
increments” has been deleted and
checking the status of commercial
eliminates the current statutory
driver’s licenses (CDL); and (3) The
replaced with, “Data periods used must
requirement that the States establish an
State will ensure that CMV size and
be consistent from year to year.” In the
out-of-service verification program and
weight enforcement activities funded
next sentence of this paragraph the
mandates that the States “will establish
with MCSAP funds will not diminish
a program to ensure the proper and
phrase “chosen by the State” is replaced
the effectiveness of other CMV safety
timely correction of commercial motor
with “for which the State’s data is
enforcement ro rams.
vehicle safety violations noted during
current.” The word “evaluation” that
Nevada anitiisconsin commented
an inspection* * * .” This mandate
appears in the next sentence has been
that the States need clarification
does not preclude the States from
changed to “summary.” Paragraph (b)
regarding the requirement that the
continuing their out-of-service
has been expanded to include
CVSP, data collection, and information
verification programs. This is not a new descriptions of the State’s activities
systems be coordinated with State
requirement for the States. Section
related to removing impaired CMV
highway safety programs under 23
350.9(p) currently requires the
drivers from the highways and
USC. 402.
correction of all violations cited on
interdicting controlled substances
This requirement is neither another
roadside inspection reports. States are
transported
by CMVs (as required by
layer of approval for the CVSP nor a
also required to have a tracking system
§ 350.201(q)) and enforcing registration
means to validate the States’
in place to ensure that motor carriers
and financial responsibility
SAFETYNET data with section 402 data. certify the corrections of safety
requirements (as required by
The requirement to coordinate a State’s
violations and that inspection reports
5 350.201(t)). In paragraph (f), now
CVSP (formerly SEP) with the State
are returned to the issuing agency
paragraph
(e), the second sentence has
highway safety plan under 23 U.S.C.
(5 35o.l3(b)(4)(v ).
been replaced with “Strategies may
Standards to clefine “timely and
402 has always been a component of the
include education, enforcement,
State Certification, Section 4003(c)(2) of proper” corrections of CMV violations
legislation, or technology/
are
found
in
49
CFR
396.9(d)(2)
which
TEA-21 merely expands the
states: “Motor carriers shall examine the infrastructure.” In paragraph (g), now
requirement to also include the
paragraph (f), the second sentence has
report. Violations or defects noted
coordination of data collection and
been completely deleted. To be
information systems with State highway thereon shall be corrected.”
consistent with the Performance-Based
Additionally, 49 CFR 396.11(c) states
safety programs under title 23, U.S.
MCSAP training, a new paragraph (i)
that, “prior to requiring or permitting a
Code. Certification item 12 has been
has been added. The Performance-Based
driver to operate a vehicle, every motor
revised to reflect that mandate. The
MCSAP training specifies that each
carrier or its agent shall repair any
intent of this congressional direction is

15100

Federal Register / Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

State specific objective must be
evaluated. The new paragraph (i)
describes the information the States will
discuss in this section of its CVSP. To
be consistent with the PerformanceBased MCSAP training, paragraphs (n)
through (r) have been added to this
section. Paragraphs (c) through (m) have
been redesignated as paragraphs (b)
through (g) and (j) through (m),
respectively.
Size and Weight Enforcement
Michigan and Oregon asked for a
clarification regarding cost eligibility of

size and weight enforcement at fixed
sites.
The MCSAP rule on this point has not
changed since 1992. To be eligible for
reimbursement, (§ 350.29(c)(5)) size and
weight enforcement must be conducted
at locations other than fixed weight
facilities, at specific geographic
locations where the weight of the
vehicle can significantly affect the safe
operation of the vehicle, or at seaports
where intermodal shipping containers
enter and exit the United States. These
size and weight enforcement activities

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

New regulation

Old regulation
350.1 -Purpose ........................................................................................
350.3-Definitions ....................................................................................
350.5-Policy ............................................................................................
350.7-Objective .................................................. . ...................................
350.9-Conditions for basic grant approval .............................................
350.1 l-Adopting and enforcing compatible laws and regulations (generally):
350.11 (a) ...........................................................................................
350.11 (b) ...........................................................................................
350.1 l(c) ...........................................................................................
350.11(d) ...........................................................................................
350.11(e) ...........................................................................................
350.11(f) ............................................................................................
350.11 (g) ...........................................................................................
350.11 (h) ...........................................................................................
350.11 (i) ............................................................................................
350.13-State Enforcement Plan (SEP) for a basic grant ......................
350.15-Certification of compliance by State ..........................................
350.17-Maintenance of effort .................................................................
350.19-Grant application submission .....................................................
350.21-Distribution of funds:
350.21 (a) ...........................................................................................
350.21(b) ...........................................................................................
350.21 (c) ...........................................................................................
350.21 (d) ...........................................................................................
350.21 (e)-(f) ......................................................................................

must be carried out in conjunction with
an appropriate North American
Standard Inspection and inspection
report.

350.103.
350.105.
350.101.
350.101.
350.107, 350.201.
350.201 (a).
350.331 (c).
Removed.
350.105 (compatible/compatibility).
350.203.
350.331 (d).
350.345.
350.335(d).
350.335(e).
350.213.
350.209.
350.301.
350.205.

350.303.
350.305.
350.323(a).
350.323(b).
350.313, 350.315, 350.317, 350.319, 350.321, 350.323, 350.327,
350.329.
350.307.
350.31 (g) ...........................................................................................
350.205, 350.207.
350.23-Acceptance of State Plan ..........................................................
350.25-Effect of failure to submit a satisfactory State Plan .................. 350.205, 350.207.
350.215.
350.27-Procedure for withdrawal of approval ........................................
350.309, 350.31 I, 350.315.
350.29-Eligible costs ..............................................................................
350 App A-Guidelines To Be Used in Preparing State Enforcement 350.213 the SEP has been renamed the Commercial Vehicle Safety
plan (CFSP).
Plan.
350.211.
350 App B-Form of State Certification ...................................................
350 App C-Tolerance Guidelines for Adopting Compatible State Rules
and Regulations:
Removed.
paragraph 1 .......................................................................................
350.337.
paragraph (2)(a) ................................................................................
. ...... 350.337.
paragraph (2)(b) .........................................................................
Removed.
paragraph (3)(a) ................................................................................
350.341 (a).
paragraph (3)(b) ................................................................................
350341(b).
wwwh (3)(c) ................................................................................
350.341 (c).
paragraph (3)(d) ................................................................................
350.343.
paragraph (3)(d)(l)-(d)(ll) ...............................................................
350.341 (d).
paragraph (3)(e) ................................................................................
350.341 (e).
paragraph (3)(f) .................................................................................
350.341 (f).
paragraph (3)(g) ................................................................................
350.341 (g).
pawwh (3)(h) ................................................................................
350.341 (h).
paragraph (3)(i) .................................................................................
Removed.
paragraph (3)(j) .................................................................................

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations
Conforming Amendments
This action amends various sections
of 49 CFR part 355 to conform with
changes to the MCSAP and 49 CFR part
350. Under § 355.5, the terms
“compatible/compatibility” and “State”
are revised to be consistent with part
350. The acronym “FMCSRs” has been
added to the definition for “Federal
Motor Carrier Safety Regulations” and
replaces “FMCSR” throughout this part.
Section 355.21(c) now reflects the
requirement that State laws and
regulations be identical to the
Hazardous Materials Regulations. The
term “Commercial Vehicle Safety Plan
(CVSP)” replaces “Safety Enforcement
Plan (SEP).” Cross-references to part 350
have been updated.
The FMCSA has eliminated the last
two sentences under the paragraph
titled “Definitions” in Appendix A to
Part 355-Guidelines for the Regulatory
Review. States must continue to ensure
that definitions of terms used in their
laws and regulations are consistent with
FMCSR definitions. We have simply
removed the example term “commercial
motor vehicle.” An interim final rule
“Federal Motor Carrier Safety
Regulations; Definition of Commercial
Motor Vehicle; Interim Final Rule”
published on September 3,1999, at 64
FR 48510 revised the CMV definition
under Q 390.5 to cover “vehicles
designed or used to transport more than
8 passengers (including the driver) for
compensation.” But the action exempts
the operation of these small passengercarrying vehicles from all of the
FMCSRs for 6 months to allow time for
the completion of a separate rulemaking
action also published on September 3,
1999, at 64 FR 48518. Revising
appendix A to reflect the new CMV
definition is premature and potentially
confusing to the States.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and DOT
Regulatory Policies and Procedures
The FMCSA has determined that this
action is not a significant regulatory
action within the meaning of Executive
Order 12866 or significant within the
meaning of DOT regulatory policies and
procedures. The revisions to the
FMCSRs will not cause an annual
impact on the economy of over $100
million, and they will not adversely
affect a sector of the economy in a
material way. The changes will not
create an inconsistency or otherwise
interfere with another agency’s actions,
nor do they raise novel legal or policy
issues. These changes merely
implement a recently enacted legislative

mandate which directed the FMCSA to
amend its regulations pertaining to the
MCSAP. This final rule broadens the
scope of the MCSAP beyond
enforcement activities and programs by
requiring participating States to assume
greater responsibility for improving
motor carrier safety. It revises the
MCSAP funding distribution formula,
creates a new incentive funding
program, and requires States to develop
performance-based CMV safety plans.
Thus, in light of this analysis, especially
the finding that the economic impact of
this action is likely to be minimal, the
FMCSA has determined that a full
regulatory evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601-612), the
FMCSA has evaluated the effects of this
rule on small entities. It is anticipated
that this rulemaking will have little or
a non-significant impact upon small
entities. The changes merely implement
TEA-21 provisions pertaining to the
MCSAP affecting only States and local
jurisdictions. This rule provides a
process for making high priority activity
and border activity funds available to
local jurisdictions as well as MCSAP
agencies. The basic conditions for local
agencies to qualify for these funds are
consistent with the conditions local
agencies must now follow to receive
funds through the MCSAP agency. Local
agencies will not be required to
participate unless they find it is in their
best interest. The number of local
agencies that would receive direct
funding will be minimal since the
FMCSA will provide grants directly to
local agencies only where it is not
possible to work through the lead
MCSAP agency. Therefore, the FMCSA
hereby certifies that this proposed
action will not have a significant
economic impact on a substantial
number of small entities.
Unfunded Mandates Reform Act
This rule does not impose a Federal
mandate resulting in the expenditure by
State, local, and tribal governments, in
the aggregate, or by the private sector, of
$100 million or more in any one year (2
U.S.C. 1531 et seq.).
Executive Order 12988 (Civil Justice
Reform)
This action meets applicable
standards in sections 3(a) and 3(b)(2) of
Executive Order 12988, Civil Justice
Reform, to minimize litigation,
eliminate ambiguity, and reduce
burden.

15101

Executive Order 13045 (Protection of
Children)
We have analyzed this action under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
does not concern an environmental risk
to health or safety that may
disproportionately affect children.
Executive Order 12630 (Taking of
Private Property)
This rule will not effect a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
Executive Order 13132 (Federalism)
This action has been analyzed in
acordance with the principles and
criteria contained in Executive Order
13132 dated August 4,1999, and it has
been determined this action does not
have a substantial direct effect or
sufficient federalism implications on
States that would limit the
policymaking discretion of the States.
The changes in this rule implement
TEA-21 provisions. The MCSAP is a
grant-in-aid type program whereby
Federal financial assistance is provided
to States. The basic nature of the
program and the level of total funding
for the program are not affected by these
changes. Nothing in this document
directly preempts any State law or
regulation. Therefore, this rulemaking
does not have sufficient Federalism
implications to warrant the preparation
of a Federalism assessment.
Executive Order 12372
[Intergovernmental Review)
The regulations implementing
Executive Order 12372 regarding
intergovernmental consultation on
Federal programs and activities do not
apply to this program. Catalog of
Federal Domestic Assistance Program
Number 20.217, Motor Carrier Safety.
Paperwork Reduction Act
Under the Paperwork Reduction Act
of 1995 (PRA) (44 USC. 3501, et. seq.),
Federal agencies must obtain approval
from the Office of Management and
Budget (OMB) for each collection of
information they conduct, sponsor, or
require through regulations. In its March
9,1999, notice of proposed rulemaking
(NPRM) titled “Motor Carrier Safety
Assistance Program (MCSAP), the
agency stated that this action might
increase the number of respondents in
the MCSAP information collection
(OMB Control No. 2126-0010). The

15102

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

agency has subsequently determined
that the number of respondents would
not change as a result of this
rulemaking, and therefore, is not
requesting any revisions to the currently
approved collection which will expire
on March 31,2001. The NPRM
specifically solicited comments
regarding the information collections
imposed by this action. The comments
that were received are being addressed
as a program element of the MCSAP and
will not result in any changes to this
information collection.
National Environmental Policy Act
The agency has analyzed this action
for purposes of the National
Environmental Policy Act of 1969 (42
U.S.C. 4321 et seq.) and it has
determined that this action will not
have any effect on the quality of the
environment.
Regulation Identification Number
A regulation identification number
(RIN) is assigned to each regulatory
action listed in the Unified Agenda of
Federal Regulations. The Regulatory
Information Service Center publishes
the Unified Agenda in April and
October of each year. The RIN contained
in the heading of this document can be
used to cross reference this action with
the Unified Agenda.
List of Subjects
49 CFR Part 350
Grant programs-transportation,
Highway safety, Motor carriers.
49 CFR Part 355

Administrative practice and
procedure, Federal-State relations, Grant
programs, Hazardous materials
transportation.
Issued on: March 14, 2000
Julie Cirillo,
Acting Deputy Administrator.

In consideration of the foregoing, the
FMCSA amends title 49, Code of
Federal Regulations, chapter III, as
follows:
1. Part 350 is revised to read as
follows:
PART 350-COMMERCIAL MOTOR
CARRIER SAFETY ASSISTANCE
PROGRAM
Subpart A-General
Sec.
350.101 What is the Motor Carrier Safety
Assistance Program (MCSAP)?
350.103 What is the purpose of this part?
350.105 What definitions are used in this
part?
350.107 What jurisdictions are eligible for
MCSAP funding?

350.109 What are the national program
elements?
350.111 What constitutes “traffic
enforcement” for the purpose of the
MCSAP?
Subpart B-Requirements for Participation
350.201 What conditions must a State meet
to qualify for Basic Program Funds?
350.203 [Reserved]
350.205 How and when does a State apply
for MCSAP funding?
350.207 What response does a State receive
to its CVSP submission?
350.209 How does a State demonstrate that
it satisfies the conditions for Basic
Program funding?
350.211 What is the format of the
certification required by 5 350.209?
350.213 What must a State CVSP include?
350.215 What are the consequences for a
State that fails to perform according to an
approved CVSP or otherwise fails to
meet the conditions of this part?
Subpart C-Funding
350.301 What level of effort must a State
maintain to qualify for MCSAP funding?
350.303 What are the State and Federal
shares of expenses incurred under an
approved CVSP?
350.305 Are U.S. Territories subject to the
matching funds requirement?
350.307 How long are MCSAP funds
available to a State?
350.309 What activities are eligible for
reimbursement under the MCSAP?
350.311 What specific items are eligible for
reimbursement under the MCSAP?
350.313 How are MCSAP funds allocated?
350.315 How may Basic Program Funds be
used?
350.317 What are Incentive Funds and how
may they be used?
350.319 What are permissible uses of High
Priority Activity Funds?
350.321 What are permissible uses of
Border Activity Funds?
350.323 What criteria are used in the Basic
Program Funds allocation?
350.325 [Reserved]
350.327 How may States qualify for
Incentive Funds?
350.329 How may a State or a local agency
qualify for High Priority or Border
Activity Funds?
350.331 How does a State ensure its laws
and regulations are compatible with the
FMCSRs and HMRs?
350.333 What are the guidelines for the
compatibility review?
350.335 What are the consequences if my
State has laws or regulations
incompatible with the Federal
regulations?
350.337 How may State laws and
regulations governing motor carriers,
CMV drivers, and CMVs in interstate
commerce differ from the FMCSRs and
still be considered compatible?
350.339 What are tolerance guidelines?
350.341 What specific variances from the
FMCSRs are allowed for State laws and
regulations governing motor carriers,
CMV drivers and CMVs engaged in
intrastate commerce and not subject to
Federal jurisdiction?

350.343 How may a State obtain a new
exemption for State laws and regulations
for a specific industry involved in
intrastate commerce?
350.345 How does a State apply for
additional variances from the FMCSRs?
Authority: 49 U.S.C. 31100-31104, 31108,
31136,31140-31141, 31161,31310-31311,
31502; and 49 CFR 1.73.

Subpart A-General
9 350.101 What is the Motor Carrier Safety
Assistance Program (MCSAP)?

The MCSAP is a Federal grant
program that provides financial
assistance to States to reduce the
number and severity of accidents and
hazardous materials incidents involving
commercial motor vehicles (CMV). The
goal of the MCSAP is to reduce CMVinvolved accidents, fatalities, and
injuries through consistent, uniform,
and effective CMV safety programs.
Investing grant monies in appropriate
safety programs will increase the
likelihood that safety defects, driver
deficiencies, and unsafe motor carrier
practices will be detected and corrected
before they become contributing factors
to accidents. The MCSAP also sets forth
the conditions for participation by
States and local jurisdictions and
promotes the adoption and uniform
enforcement of safety rules, regulations,
and standards compatible with the
Federal Motor Carrier Safety
Regulations (FMCSRs) and Federal
Hazardous Material Regulations (HMRs)
for both interstate and intrastate motor
carriers and drivers.
Q 350.103

What is the purpose of this part?

The purpose of this part is to ensure
the Federal Motor Carrier Safety
Administration (FMCSA), States, and
other political jurisdictions work in
partnership to establish programs to
improve motor carrier, CMV, and driver
safety to support a safe and efficient
transportation system.
5350.105 What definitions are used in this
part?

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

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

15103

Agency means Federal Motor Carrier
MCSAP funds are available forthese
enforcement must include an
Safet Administration.
activities.
appropriate North American Standard
A c-7ministrative Takedown Funds
Incentive Funds means funds
Inspection of the CMV or driver or both
means funds deducted by the FMCSA
awarded to States achieving reductions
prior to releasing the driver or CMV for
each fiscal year from the amount made
in CMV involved fatal accidents, CMV
resumption of operations.
available for the MCSAP for expenses
fatal accident rate, or meeting specified
Subpart B-Requirements for
incurred in the administration of the
CMV safety program performance
Participation
MCSAP, including expenses to train
criteria.
State and local government em loyees.
Large truck means a truck over IO,OOO
5 350.201 What conditions must a State
Administrator means Federa P Motor
pounds gross vehicle weight rating
meet to qualify for Basic Program Funds?
Carrier Safety Administrator.
including single unit trucks and truck
Each State must meet the following
Basic Program Funds means the total
tractors (FARS definition).
twenty-two conditions:
MCSAP funds less the High Priority
Motor carrier means a for-hire motor
(a) Assume responsibility for
Activity, Border Activity,
carrier or private motor carrier. The
improving
motor carrier safety and
Administrative Takedown, and
term includes a motor carrier’s agents,
adopting and enforcing State safety laws
Incentive Funds.
officers, or representatives responsible
and regulations that are compatible with
Border Activity Funds means funds
for hiring, supervising, training,
the
FMCSRs (49 CFR parts 390-397) and
provided to States, local governments,
assigning, or dispatching a driver or
the HMRs (49 CFR parts 107 (subparts
and other persons carrying out
concerned with the installation,
FandGonly), 171-173,177,178 and
programs, activities, and projects
inspection, and maintenance of motor
180), except as may be determined by
relating to CMV safety and regulatory
vehicle equipment or accessories or
the Administrator to be inapplicable to
enforcement supporting the North
both.
a State enforcement program.
American Free Trade Agreement
North American Standard Inspection
(b) Implement a performance-based
(NAFTA) at the U.S. border. Up to 5
means the methodology used by State
percent of total MCSAP funds are
CMV safety inspectors to conduct safety program by the beginning of Fiscal Year
2000 and submit a CVSP which will
available for these activities.
inspections of CMVs. This consists of
serve as the basis for monitoring and
Commercial motor vehicle (CMV)
various levels of inspection of the
means a motor vehicle that has any of
vehicle or driver or both. The inspection evaluating the State’s performance.
(c) Designate, in its State Certification,
the following characteristics:
criteria are developed by the FMCSA in
the
lead State agency responsible for
(1) A gross vehicle weight (GVW),
conjunction with the Commercial
implementing the CVSP.
gross vehicle weight rating (GVWR),
Vehicle Safety Alliance (CVSA), an
(d) Ensure that only agencies having
gross combination weight (GCW), or
association of States, Canadian
the
legal authority, resources, and
gross combination weight rating
Provinces, and Mexico whose members
qualified personnel necessary to enforce
(GCWR) of 4,537 kilograms (10,001
agree to adopt these standards for
the FMCSRs and HMRs or compatible
pounds) or more.
inspecting CMVs in their jurisdiction.
State laws or regulations are assigned to
(2) Regardless of weight, is designed
5350.107 What jurisdictions are eligible
perform functions in accordance with
or used to transport 16 or more
for MCSAP funding?
the approved CVSP.
passengers, including driver.
(e) Allocate adequate funds for the
All of the States, the District of
(3) Regardless of weight, is used in the
Columbia, the Commonwealth of Puerto administration of the CVSP including
transportation of hazardous materials
the enforcement of the FMCSRs, HMRs,
and is required to be placarded pursuant Rico, the Commonwealth of the
or compatible State laws or regulations.
Northern Mariana Islands, American
to 49 CFR part 172, subpart F.
(f) Maintain the aggregate expenditure
Commercial vehicle safety plan
Samoa, Guam, and the Virgin Islands
of funds by the State and its political
(CVSP) means the document outlining
are eligible to receive MCSAP grants
subdivisions, exclusive of Federal
the State’s CMV safety objectives,
directly from the FMCSA. For purposes
funds, for motor carrier and highway
strategies, activities and performance
of this subpart, all references to “State”
hazardous materials safety enforcement,
measures.
or “States” include these jurisdictions.
Compatible or Compatibility means
eligible for funding under this part, at a
level at least equal to the average
State laws and regulations applicable to Q 350.109 What are the national program
elements?
interstate commerce and to intrastate
expenditure for Federal or State fiscal
The national program elements
movement of hazardous materials are
years 1997,1998, and 1999.
include the following five activities:
(g) Provide legal authority for a right
identical to the FMCSRs and the HMRs
(a) Driver/vehicle inspections.
of entry and inspection adequate to
or have the same effect as the FMCSRs.
(b) Traffic enforcement.
carry out the CVSP.
State laws applicable to intrastate
(c) Compliance reviews.
(h) Prepare and submit to the FMCSA,
commerce are either identical to, or
(d) Public education and awareness.
upon request, all reports required in
have the same effect as, the FMCSRs or
(e) Data collection.
connection with the CVSP or other
fall within the established limited
5 350.111 What constitutes “traffic
conditions of the grant.
variances under 5 350.341.
enforcement” for the purpose of the
(i) Adopt and use the reporting
High Priority Activity Funds means
MCSAP?
standards and forms required by the
funds provided to States, local
Traffic enforcement means
FMCSA to record work activities
governments, and other persons
enforcement activities of State or local
performed under the CVSP.
carrying out activities and projects that
officials, including stopping CMVs
(j) Require registrants of CMVs to
directly support the MCSAP, are
operating on highways, streets, or roads declare, at the time of registration, their
national in scope in that the successful
for violations of State or local motor
knowledge of applicable FMCSRs,
activity or project could potentially be
HMRs, or compatible State laws or
vehicle or traffic laws (e.g., speeding,
applied in other States on a national
following too closely, reckless driving,
regulations.
scale, and improve CMV safety and
(k) Grant maximum reciprocity for
improper lane change). To be eligible for
compliance with CMV safety
inspections conducted under the North
funding through the grant, traffic
regulations. Up to 5 percent of total

15104

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

American Standard Inspection through
the use of a nationally accepted system
that allows ready identification of
previously inspected CMVs.
(1) Conduct CMV size and weight
enforcement activities funded under
this program only to the extent those
activities do not diminish the
effectiveness of other CMV safety
enforcement programs.
(m) Coordinate the CVSP, data
collection and information systems,
with State highway safety programs
under title United States Code (U.S.C.).
(n) Ensure participation in
SAFETYNET and other information
systems by all appropriate jurisdictions
receiving funding under this section.
(0) Ensure information is exchanged
with other States in a timely manner.
(p) Emphasize and improve
enforcement of State and local traffic
laws and regulations related to CMV
safety.
(q) Promote activities in support of
the national program elements listed in
5 350.109, including the following three
activities:
(1) Activities aimed at removing
impaired CMV drivers from the
highways through adequate enforcement
of restrictions on the use of alcohol and
controlled substances and by ensuring
ready roadside access to alcohol
detection and measuring equipment.
(2) Activities aimed at providing an
appropriate level of training to MCSAP
personnel to recognize drivers impaired
by alcohol or controlled substances.
(3) Interdiction activities affecting the
transportation of controlled substances
by CMV drivers and training on
appropriate strategies for carrying out
those interdiction activities.
(r) Enforce requirements relating to
the licensing of CMV drivers, including
checking the status of commercial
drivers’ licenses (CDL).
(s) Require the proper and timely
correction of all CMV safety violations
noted during inspections carried out
with MCSAP funds.
(t) Enforce registration requirements
under 49 U.S.C. section 13902 and 49
CFR part 356 and financial
responsibility requirements under 49
U.S.C. sections 13906, 31138 and 31139
and 49 CFR part 387.
(u) Adopt and maintain consistent,
effective, and reasonable sanctions for
violations of CMV, driver, and
hazardous materials regulations.
(v) Ensure that MCSAP agencies have
policies that stipulate roadside
inspections will be conducted at
locations that are adequate to protect the
safety of drivers and enforcement
personnel.

5 350.203 [RESERVED]
5 350.205 How and when does a State
apply for MCSAP funding?

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

administer the CVSP for the grant sought and
(names of agencies) to perform defined
functions under the plan. These agencies
have the legal authority, resources, and
qualified personnel necessary to enforce the
State’s commercial motor carrier, driver, and
highway hazardous materials safety laws or
regulations.
3. The State will obligate the funds or
resources necessary to provide a matching
share to the Federal assistance provided in
the grant to administer the plan submitted
and to enforce the State’s commercial motor
carrier safety, driver, and hazardous
materials laws or regulations in a manner
consistent with the approved plan.
4. The laws of the State Drovide the State’s

5 350.207 What response does a State
receive to its CVSP submission?

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

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

(a) The Governor, the State’s Attorney
General, or other State official
specifically designated by the Governor,
must execute a State Certification as
described in 5 350.211.
(b) The State must submit the State
Certification along with its CVSP, and
supplement it with a copy of any State
law, regulation, or form pertaining to
CMV safety adopted since the State’s
last certification that bears on the items
contained in 5 350.201 of this subpart.
5 350.211 What is the format of the
certification required by 5 350.209?

The State’s certification must be
consistent with the following content:
I (name), (title), on behalf of the State (or

Commonwealth) of (State), as requested by
the Administrator as a condition of approval
of a grant under the authority of 49 U.S.C.
31102, as amended, do hereby certify as
follows:
1. The State has adopted commercial motor
carrier and highway hazardous materials
safety rules and regulations that are
compatible with the FMCSRs and the HMRs.
2. The State has designated (name of State
CMV safety agency) as the lead agency to

(Name)
accomplished) is
13. The State participates in SAFETYNET
and ensures information is exchanged with
other States in a timely manner.

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations
49 CFR part 365 and financial
responsibility requirements under 49
U.S.C. 13906,31138 and 31139 and 49
CFR part 387.
(c) A definitive problem statement for
each objective, supported by data or
other information. The CVSP must
identify the source of the data, and who
is responsible for its collection,
maintenance, and analysis.
(d) Performance objectives, stated in
quantifiable terms, to be achieved
through the State plan. Objectives must
include a measurable reduction in
highway accidents or hazardous
5 350.213 What must a State CVSP
materials incidents involving CMVs.
include?
The objective may also include
The State’s CVSP must reflect a
documented improvements in other
performance-based program, and
program areas (e.g., legislative or
contain the following eighteen items:
regulatory authority, enforcement
(a) A general overview section that
results, or resource allocations).
must include the following two items:
(e) Strategies to be employed to
(1) A statement of the State agency
achieve performance objectives.
goal or mission.
Strategies may include education,
(2) A program summary of the
enforcement, legislation, use of
effectiveness of the prior years’
technology and improvements to safety
activities in reducing CMV accidents,
infrastructure.
injuries and fatalities, and improving
(f) Specific activities intended to
driver and motor carrier safety
achieve the stated strategies and
performance. Data periods used must be objectives. Planned activities must be
consistent from year to year. This may
eligible under this program as defined
be calendar year or fiscal year or any 12- in 5s 350.309 and 350.311.
month period of time for which the
(g) Specific quantifiable performance
State’s data is current. The summary
measures, as appropriate. These
must show trends supported by safety
performance measures will be used to
and program performance data collected assist the State in monitoring the
over several years. It must identify
progress of its program and preparing an
safety or performance problems in the
annual evaluation.
State and those problems must be
(h) A description of the State’s
addressed in the new or modified CVSP. method for ongoing monitoring of the
(b) A brief narrative describing how
progress of its plan. This should include
the State program addresses the national who will conduct the monitoring, the
program elements listed in 5 350.109.
frequency with which it will be carried
The plan must address these elements
out, and how and to whom reports will
even if there are no planned activities in be made.
a program area. The rationale for the
(i) An objective evaluation that
resource allocation decision must be
discusses the progress towards
explained. The narrative section must
individual objectives listed under the
include a description of how the State
“Performance Objectives” section of the
supports the three activities identified
previous year’s CVSP and identifies any
in 5 350.201(q):
safety or performance problems
(1) Activities aimed at removing
discovered. States will identify those
impaired CMV drivers from the
problems as new objectives or make
highways through adequate enforcement modifications to the existing objectives
of restrictions on the use of alcohol and
in the next CVSP.
controlled substances and by ensuring
(j) A budget which supports the
ready roadside access to alcohol
CVSP, describing the expenditures for
detection and measuring equipment.
allocable costs such as personnel and
(2) Activities aimed at providing an
related costs, equipment purchases,
appropriate level of training to MCSAP
printing, information systems costs, and
personnel to recognize drivers impaired other eligible costs consistent with
by alcohol or controlled substances.
§+j 350.311 and 350.309.
(k) A budget summary form including
(3) Interdiction activities affecting the
planned expenditures for that fiscal year
transportation of controlled substances
and projected number of activities in
by CMV drivers and training on
each national program element, except
appropriate strategies for carrying out
data collection.
those interdiction activities.
(1) The results of the annual review to
(4) Activities to enforce registration
requirements under 49 USC. 13902 and determine the compatibility of State

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

15105

laws and regulations with the FMCSRs
and HMRs.
(m) A copy of any new law or
regulation affecting CMV safety
enforcement that was enacted by the
State since the last CVSP was submitted.
(n) Executed State Certification as
outlined in Q 350.211.
(0) Executed MCSAP-1 form.
(p) List of MCSAP contacts.
(q) Annual Certification of
Compatibility, 5 350.331.
(r) State Training Plan,
5 350.215 What are the consequences for
a State that fails to perform according to an
approved CVSP or otherwise fails to meet
the conditions of this part?

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

Subpart C-Funding
9 350.301 What level of effort must a State
maintain to qualify for MCSAP funding?

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

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Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

(c) The State must include costs
associated with activities performed
during the base period by State or local
agencies currently receiving or projected
to receive funds under this part. It must
include only those activities which meet
the current requirements for funding
eligibility under the grant program.
0 350.303 What are the State and Federal
shares of expenses incurred under an
approved CVSP?

(a) The FMCSA will reimburse up to

80 percent of the eligible costs incurred

in the administration of an approved
CVSP.
(b) In-kind contributions are
acceptable in meeting the State’s
matching share if they represent eligible
costs as established by 49 CFR part 18
or agency policy.
5 350.305 Are U.S. Territories subject to
the matching funds requirement?

The Administrator waives the
requirement for matching funds for the
Virgin Islands, American Samoa, Guam,
and the Commonwealth of the Northern
Mariana Islands.
Q 350.307 How long are MCSAP funds
available to a State?

The funds obligated to a State will
remain available for the rest of the fiscal
year in which they were obligated and
the next full fiscal year. The State must
account for any prior year’s unexpended
funds in the annual CVSP. Funds must
be expended in the order in which they
are obligated.
Q 350.309 What activities are eligible for
reimbursement under the MCSAP?

The primary activities eligible for
reimbursement are:
(a) The five national program
elements listed in § 350.109 of this part.
(b) Sanitary food transportation
inspections performed under 49 U.S.C.
5708.

(c) The following three activities,
when accompanied by an appropriate
North American Standard Inspection
and inspection report:
(1) Enforcement of size and weight
regulations conducted at locations other
than fixed weight facilities, at specific
geographical locations where the weight
of the vehicle can significantly affect the
safe operation of the vehicle, or at
seaports where intermodal shipping
containers enter and exit the United
States.
(2) Detection of the unlawful presence
of controlled substances in a CMV or on
the driver or any occupant of a CMV.
(3) Enforcement of State traffic laws
and regulations designed to promote the
safe operation of CMVs.

5 350.311 What specific items are eligible
for reimbursement under the MCSAP?

All reimbursable items must be
necessary, reasonable, allocable to the
approved CVSP, and allowable under
this part and 49 CFR part 18. The
eligibility of specific items is subject to
review by the FMCSA. The following
six types of expenses are eligible for
reimbursement:
(a) Personnel expenses, including
recruitment and screening, training,
salaries and fringe benefits, and
supervision.
(b) Equipment and travel expenses,
including per diem, directly related to
the enforcement of safety regulations,
including vehicles, uniforms,
communications equipment, special
inspection equipment, vehicle
maintenance, fuel, and oil.
(c) Indirect expenses for facilities,
except fixed scales, used to conduct
inspections or house enforcement
personnel, support staff, and equipment
to the extent they are measurable and
recurring (e.g., rent and overhead).
(d) Expenses related to data
acquisition, storage, and analysis that
are specifically identifiable as programrelated to develop a data base to
coordinate resources and improve
efficiency.
(e) Clerical and administrative
expenses, to the extent necessary and
directly attributable to the MCSAP.
(f) Expenses related to the
improvement of real property (e.g.,
installation of lights for the inspection
of vehicles at night). Acquisition of real
property, land, or buildings are not
eligible costs.
5 350.313 How are MCSAP funds
allocated?

(a) After deducting administrative
expenses authorized in 49 U.S.C.
31104(e), the MCSAP funds are
allocated as follows:
(1) Up to 5 percent of the MCSAP
funds appropriated for each fiscal year
may be distributed for High Priority
Activities and Projects at the discretion
of the Administrator.
(2) Up to 5 percent of the MCSAP
funds appropriated for each fiscal year
may be distributed for Border CMV
Safety and Enforcement Programs at the
discretion of the Administrator.
(3) The remaining funds will be
allocated among qualifying States in two
ways:
(i) As Basic Program Funds in
accordance with 5 350.323 of this part,
(ii) As Incentive Funds in accordance
with 5 350.327 of this part.
(b) The funding provided in
paragraphs (a)(l) and (a)(2) of this
section may be awarded through

contract, cooperative agreement, or
grant. The FMCSA will notify States if
it intends to solicit State grant proposals
for any portion of this funding.
(c) The funding provided under
paragraphs (a)(l) and (a)(2) of this
section may be made available to State
MCSAP lead agencies, local
governments, and other persons that use
and train qualified officers and
employees in coordination with State
motor vehicle safety agencies,
Q 350.315
be used?

How may Basic Program Funds

Basic Program Funds may be used for
any eligible activity or item consistent
with 55 350.309 and 350.311.
5350.317 What are Incentive Funds and
how may they be used?

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

5 350.319 What are permissible uses of
High Priority Activity Funds?

(a) The FMCSA may generally use
these funds to support, enrich, or
evaluate State CMV safety programs and
to accomplish the five objectives listed
below:
(1) Implement, promote, and maintain
national programs to improve CMV
safety.
(2) Increase compliance with CMV
safety regulations.
(3) Increase public awareness about
CMV safety.
(4) Provide education on CMV safety
and related issues.
(5) Demonstrate new safety related
technologies.
(b) These funds will be allocated, at
the discretion of the FMCSA, to States,
local governments, and other
organizations that use and train
qualified officers and employees in
coordination with State safety agencies.
(c) The FMCSA will notify the States
when such funds are available.
(d) The Administrator may designate
up to 5 percent of the annual MCSAP
funding for these projects and activities.
5 350.321 What are permissible uses of
Border Activity Funds?

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

.

Federal Register/Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations
local governments, and other
organizations that use and train
qualified officials and employees in
coordination with State safety agencies.
The FMCSA will notify the States when
such funds are available. The
Administrator may designate up to 5
percent of the annual MCSAP funding
for these projects and activities.
T ABLE

TO

5 350.323 What criteria are used in the
Basic Program Funds allocation?

(a) The funds are distributed
proportionally to the States using the
following four, equally weighted (25
percent), factors.
(1) 1997 Road miles (all highways) as
defined by the FHWA.
(2) All vehicle miles traveled (VMT)
as defined by the FHWA.

15107

(3) Population-annual census
estimates as issued by the U.S. Census
Bureau.
(4) Special fuel consumption (net after
reciprocity adjustment) as defined by
the FHWA.
(b) Distribution of Basic Program
Funds is subject to a maximum and
minimum allocation as illustrated in the
Table to this section, as follows:

$j 350.323(b)-BASIC P ROG RA M F UND A LLOCATION L IMITATIONS

Recipient

Maximum allocation

Minimum allocation

States and Puerto Rico . . . . . . . . 4.944% of the Basic Program Funds . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
U.S. Territories . . . . . . . . . . . . . . . . . . . . .

5 350.325 [Reserved]
§ 350.327 How may States qualify for
Incentive Funds?

(a) A State may qualify for Incentive
Funds if it can demonstrate that its CMV
safety program has shown improvement
in any or all of the following five
cate ories:
(1yR e dUC t’ion of large truck-involved
fatal accidents.
(2) Reduction of large truck-involved
fatal accident rate or maintenance of a
large truck-involved fatal accident rate
that is among the lowest 10 percent of
such rates of MCSAP recipients.
(3) Upload of CMV accident reports in
accordance with current FMCSA policy
guidelines.
(4) Verification of CDLs during all
roadside ins ections.
(5) Uploa B of CMV inspection data in
accordance with current FMCSA policy
guidelines.
(b) Incentive Funds will be
distributed based upon the five
following safety and program
performance factors:
(1) Five shares will be awarded to
States that reduce the number of large
truck-involved fatal accidents for the
most recent calendar year for which
data are available when compared to the
lo-year average number of large truckinvolved fatal accidents ending with the
preceding year. The lo-year average will
be computed from the number of large
truck-involved fatal crashes, as reported
by the FARS, administered by the
National Highway Traffic Safety
Administration (NHTSA).
(2) Four shares will be awarded to
States that reduce the fatal-accident rate
for the most recent calendar year for
which data are available when
compared to each State’s average fatal
accident rate for the preceding lo-year
period. States with the lowest 10
percent of accident rates in the most

$350,000 or 0.44% of Basic Program Funds, whichever
is greater.

$350,000 (fixed amount)

recent calendar year for which data are
available will be awarded three shares if
the rate for the State is the same as its
average accident rate for the preceding
lo-year period.
(3) Two shares will be awarded to
States that upload CMV accident data
within FMCSA policy guidelines.
(4) Two shares will be awarded to
States that certify their MCSAP
inspection agencies have departmental
policies that stipulate CDLs are verified,
as part of the inspection process,
through Commercial Driver’s License
Information System (CDLIS), National
Law Enforcement Tracking System
(NLETS), or the State licensing
authority.
(5) Two shares will be awarded to
States that upload CMV inspection
reports within current FMCSA policy
guidelines.
(c) The total of all States’ shares
awarded will be divided into the dollar
amount of Incentive Funds available,
thereby establishing the value of one
share. Each State’s incentive allocation
will then be determined by multiplying
the State’s percentage participation in
the formula allocation of Basic Program
Funds, by the number of shares it
received that year, multiplied by the
dollar value of one share.
(d) States may use Incentive Funds for
any eligible CMV safety purpose.
(e) Incentive Funds are subject to the
same State matching requirements as
Basic Program Funds.
(f) A State must annually certify
compliance with the applicable
incentive criteria to receive Incentive
Funds. A State must submit the required
certification as part of its CVSP or as a
separate document.

5350.329 How may a State or a local
agency qualify for High Priority or Border
Activity Funds?

(a) States must meet the requirements
of § 350.201, as applicable.
(b) Local agencies must meet the
following nine conditions:
(1) Prepare a proposal in accordance
with § 350.213, as applicable.
(2) Coordinate the proposal with the
State lead MCSAP agency to ensure the
proposal is consistent with State and
national CMV safety program priorities.
(3) Certify that your local jurisdiction
has the legal authority, resources, and
trained and qualified personnel
necessary to perform the functions
specified in the proposal.
(4) Designate a person who will be
responsible for implementation,
reporting, and administering the
approved proposal and will be the
primary contact for the project.
(5) Agree to fund up to 20 percent of
the proposed request.
(6) Agree to prepare and submit all
reports required in connection with the
proposal or other conditions of the
grant.
(7) Agree to use the forms and
reporting criteria required by the State
lead MCSAP agency and/or the FMCSA
to record work activities to be
performed under the proposal.
(8) Certify that the local agency will
impose sanctions for violations of CMV
and driver laws and regulations that are
consistent with those of the State.
(9) Certify participation in national
data bases appropriate to the project.
5 350.331 How does a State ensure its
laws and regulations are compatible with
the FMCSRs and HMRs?

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

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Federal Register / Vol. 65, No. 55 /Tuesday, March 21, 2000 /Rules and Regulations

issuance, for compatibility with the
FMCSRs and HMRs.
(b) If the review determines that the
new law or regulation is incompatible
with the FMCSRs and/or HMRs, the
State must immediately notify the Motor
Carrier State Director.
(c) A State must conduct an annual
review of its laws and regulations for
compatibility and report the results of
that review in the annual CVSP in
accordance with Q 350.213(l) along with
a certification of compliance, no later
than August 1 of each year. The report
must include the following two items:
(1) A copy of the State law, regulation,
or policy relating to CMV safety that
was adopted since the State’s last report.
T ABLE

TO

(2) A certification, executed by the
State’s Governor, Attorney General, or
other State official specifically
designated by the Governor, stating that
the annual review was performed and
that State CMV safety laws remain
compatible with the FMCSRs and
HMRs. If State CMV laws are no longer
compatible, the certifying official shall
explain.
(d) As soon as practical after the
effective date of any newly enacted
regulation or amendment to the
FMCSRs or HMRs, but no later than
three years after that date, the State
must amend its laws or regulations to
make them compatible with the
FMCSRs and/or HMRs, as amended.

§ 350.333-GuiDELiNEs

Law or regulation has same
effect as corresponding Federal regulation

Applies to interstate or
intrastate commerce

(1) Yes . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

............................................

(2) No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(3) No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
(4) No . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Intrastate ............................
Interstate ............................
Interstate ............................

FOR THE

STATE LAW

AND

9 350.333 What are the guidelines for the
compatibility review?

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

R EGULATION C OMPATIBILITY R EVIEW

Less stringent or more
stringent

Action authorized

Less stringent ....................
More stringent ...................

Compatible-Interstate and intrastate commerce enforcement authorized.
Refer to 8 350.341
Enforcement prohibited.
Enforcement authorized if the State can demonstrate
the law or regulation has a safety benefit or does
not create an undue burden upon interstate commerce (See 49 CFR Part 355).

5 350.341 What specific variances from the
safety, in either interstate or intrastate
FMCSRs are allowed for State laws and
commerce, is incompatible with the
regulations governing motor carriers, CMV
FMCSRs or HMRs, the FMCSA may
and CMVs engaged in intrastate
(a) A State that currently has
initiate a proceeding under 5 350.215 for drivers,
commerce and not subject to Federal
compatible CMV safety laws and
withdrawal of eligibility for all Basic
jurisdiction?
regulations pertaining to interstate
Program and Incentive Funds.
(a) A State may exempt a CMV from
commerce (i.e., rules identical to the
(e) Any decision regarding the
all or part of its laws or regulations
FMCSRs and HMRs) and intrastate
compatibility of your State law or
applicable to intrastate commerce,
commerce (i.e., rules identical to or
regulation with the HMRs that requires
provided that neither the GVW, GVWR,
within the tolerance guidelines for the
an interpretation will be referred to the
GCW, nor GCWR of the vehicle equals
FMCSRs and identical to the HMRs) but
Research and Special Programs
or exceeds 11,801 kg (26,001 lbs.).
enacts a law or regulation which results
Administration of the DOT for such
However, a State may not exempt a
in an incompatible rule will not be
interpretation before proceeding under
CMV from such laws or regulations if
eligible for Basic Program Funds nor
5350.215.
the vehicle:
Incentive Funds.
(1) Transports hazardous materials
(b) A State that fails to adopt any new Q 350.337 How may State laws and
requiring a placard.
regulation or amendment to the
regulations governing motor carriers, CMV
(2) Is designed or used to transport 16
FMCSRs or HMRs within three years of
drivers, and CMVs in interstate commerce
or more people, including the driver.
its effective date will be deemed to have differ from the FMCSRs and still be
(b) State laws and regulations
incompatible regulations and will not be considered compatible?
applicable to intrastate commerce may
eligible for Basic Program nor Incentive
States are not required to adopt 49
not grant exemptions based upon the
Funds.
CFR parts 398 and 399, subparts A
type of transportation being performed
(c) Those States with incompatible
through E and H of part 107, and
(e.g., for-hire, private, etc.).
laws or regulations pertaining to
5s 171.15 and 171.16, as applicable to
(c) A State may retain those
intrastate commerce and receiving 50
percent of their basic formula allocation either interstate or intrastate commerce. exemptions from its motor carrier safety
laws and regulations that were in effect
on April 20, 2000 will continue at that
g 350.339 What are tolerance guidelines?
before April, 1988, are still in effect, and
level of funding until those
Tolerance guidelines set forth the
apply to specific industries operating in
incompatibilities are removed, provided
intrastate commerce.
no further incom atibilities are created. limited deviations from the FMCSRs
(d) State laws and regulations
allowed in your State’s laws and
(d) Upon a finBing by the FMCSA,
regulations. These variances apply only applicable to intrastate commerce must
based upon its own initiative or upon a
not include exemptions based upon the
to motor carriers, CMV drivers and
petition of any person, including any
distance a motor carrier or driver
CMVs engaged in intrastate commerce
State, that your State law, regulation or
operates from the work reporting
enforcement practice pertaining to CMV and not subject to Federal jurisdiction.
0 350.335 What are the consequences if
my State has laws or regulations
incompatible with the Federal regulations?