Attachment B - Attachment B: Final Rule: Waivers, Exemptions and Pilot Programs (69 FR 51589 August 20, 2004)

Federal Register / Vol. 69, No. 161 / Friday, August 20, 2004 / Rules and Regulations
amended by adding Channel *237A and
by removing Channel 237A at Dillsboro.
■ 6. Section 73.202(b), the Table of FM
Allotments under North Dakota, is
amended by adding Channel *264C and
by removing Channel 264C at Berthold.
■ 7. Section 73.202(b), the Table of FM
Allotments under New York, is amended
by adding Channel *221A and by
removing Channel 221A at Amherst.
■ 8. Section 73.202(b), the Table of FM
Allotments under Oklahoma, is
amended by adding Channel *229A and
by removing Channel 229A at Cordell; by
adding Channel *286A and by removing
Channel 286A at Weatherford; by adding
Channel *283A and by removing
Channel 283A at Wynnewood.
■ 9. Section 73.202(b), the Table of FM
Allotments under Oregon, is amended by
adding Channel *251C1 and by
removing Channel 251C1 at Madras.
Federal Communications Commission.
John A. Karousos,
Assistant Chief, Audio Division, Media
Bureau.
[FR Doc. 04–18466 Filed 8–19–04; 8:45 am]
BILLING CODE 6712–01–P

DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 381
[Docket No. FMCSA–98–4145]
RIN 2126–AA41

Federal Motor Carrier Safety
Regulations; Waivers, Exemptions,
and Pilot Programs
Federal Motor Carrier Safety
Administration, DOT.
ACTION: Final rule.
AGENCY:

SUMMARY: The Federal Motor Carrier
Safety Administration (FMCSA) adopts
as final its interim regulations at 49 CFR
part 381, consistent with section 4007 of
the Transportation Equity Act for the
21st Century. The final rule establishes
procedures applicants must follow to
request waivers and apply for
exemptions from the Federal Motor
Carrier Safety Regulations and
Commercial Driver’s License
requirements, and procedures to
propose and manage pilot programs. In
addition, it establishes procedures
which govern how FMCSA will review,
grant, or deny requests for waivers,
applications for exemptions, and
proposals for pilot programs. It also
establishes requirements for publishing
notice of exemption applications or

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proposals for pilot programs through the
Federal Register and affording the
public an opportunity for comment. As
no revisions are necessary, the interim
regulations at part 381 are adopted
without change.
DATES: Effective September 20, 2004.
Petitions for Reconsideration must be
received by the agency not later than
September 20, 2004.
FOR FURTHER INFORMATION CONTACT:
Larry W. Minor, Chief, Vehicle and
Roadside Operations Division (MC–
PSV), Federal Motor CarrierSafety
Administration, 400 Seventh Street,
SW., Washington,DC 20590. Telephone
(202) 366–4009.
SUPPLEMENTARY INFORMATION:
Copies of This Document and Other
Related Information
• Docket: For access to the public
docket, Internet users may access the
U.S. DOT Docket Management System
(DMS) facility to view or download
comments received or background
documents, by using the universal
resource locator (URL) http://
dms.dot.gov and typing the last four
digits of the docket number of this
rulemaking (FMCSA–98–4145); or go to
the DMS facility, 400 Seventh Street,
SW., (on the Plaza Level), Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday (except Federal
holidays).
• You can also get an electronic copy
of this document by accessing FMCSA’s
‘‘Rules and Regulations’’ Web page at
http://www.fmcsa.dot.gov; or accessing
today’s Federal Register from the
Government Printing Office (GPO) Web
page at http://www.gpoaccess.gov.
Privacy Act Statement
Anyone is able to search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or signing the comment, if
submitted on behalf of an association,
business, labor union, etc.). You may
review DOT’s complete Privacy Act
Statement in the Federal Register
published on April 11, 2000 (Volume
65, Number 70; Pages 19477–78) or you
may visit http://dms.dot.gov.
Small Entity Assistance
The Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA) requires each agency to
respond to small entity requests for
information or advice about compliance
with statutes and regulations within its
jurisdiction.
FMCSA’s emphasis on small business
assistance extends to all of its

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51589

headquarters and division offices.
Therefore, any small business,
organization, or governmental
jurisdiction that has a question
concerning this document may contact
an FMCSA Division office in its State,
or an FMCSA ServiceCenter for its
geographic area. For addresses and
phone number, go to http://
www.fmcsa.dot.gov/aboutus/fieldoffs;
call our toll free number at 1–800–832–
5660, or send a FAX to (202) 366–8842.
Background
Discussion of Interim Final Rule
On June 9, 1998, the Transportation
Equity Act for the 21st Century (TEA–
21) (Pub. L. 105–178, 112 Stat. 107) was
enacted. Section 4007 of TEA–21
amended 49 U.S.C. 31315 and 31136(e)
concerning authority to grant waivers
from the Federal Motor Carrier Safety
Regulations (FMCSRs) to a person(s)
seeking regulatory relief. Under sections
31315 and 31136(e), FMCSA may grant
a waiver or exemption relieving a
person from complying in whole or in
part with a regulation, if the agency
determines it is in the public interest
and would likely achieve a level of
safety equivalent to, or greater than, the
level that would be achieved by
complying with the safety regulation.
TEA–21 also permits FMCSA to conduct
pilot programs to evaluate alternatives
relating to its motor carrier, commercial
motor vehicle (CMV), and driver safety
regulations. The use of exemptions in
pilot programs is administered under
strict controls, to enable collection and
analysis of data and preparation of a
report to Congress. TEA–21 also made a
clear distinction between ‘‘waivers’’ and
‘‘exemptions’’ and specified
requirements for pilot programs.
Waivers
TEA–21 authorizes FMCSA to grant
short-term waivers for special situations
without requesting public comment,
and without providing public notice.
Waivers require a ‘‘public interest’’
finding in addition to a finding of safety.
Individual waivers may only be granted
to a person for a specific unique, nonemergency event, for a period up to
three months.
Exemptions
TEA–21 directs the agency to publish
notice of an exemption request in the
Federal Register, announcing that a
request has been filed and justification
as to why the exemption is required. We
must also afford the public a comment
period and an opportunity to inspect the
safety analysis and other relevant
information. Before granting an
exemption, we must publish a notice in

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

must immediately revoke participation
by a carrier, CMV, or driver in the
program. Likewise, if continuation of a
pilot program is inconsistent with the
safety goals and objectives of 49 U.S.C.
chapter 313, or 49 U.S.C. 31136, we
must immediately terminate that pilot
program.
At the conclusion of a pilot program,
the agency must report its findings,
conclusions, and recommendations to
Congress, including suggested
amendments to laws and regulations
that would enhance motor carrier, CMV,
and driver safety and improve
compliance with the FMCSRs.

Pilot Programs
TEA–21 authorizes the agency to
conduct pilot programs to evaluate
alternatives to regulations relating to
motor carrier, CMV, and driver safety.
These programs may include
exemptions from one or more
regulations. FMCSA must provide
detailed information regarding a pilot
program through the publication of a
notice in the Federal Register, including
exemptions being considered, and
asking for comments before the effective
date of the pilot program. We must
ensure that safety measures in the pilot
programs are designed to achieve a level
of safety that is equivalent to, or greater
than, the level of safety that would be
achieved through compliance with the
safety regulations. Each pilot program is
limited to three years from the starting
date.
If a motor carrier, CMV, or driver fails
to comply with the terms and
conditions of the pilot program, FMCSA

Comments on IFR and Agency
Responses
We received 20 comments on the IFR.
The commenters are: Advocates for
Highway and Auto Safety (Advocates);
American Association of Motor Vehicle
Administrators(AAMVA); American
Automobile Association (AAA); District
of Columbia Metropolitan Police
Department (MetropolitanPolice);
Georgetown University Law Center,
Institute for Public Representation
(Georgetown); Insurance Institute for
Highway Safety (IIHS); International
Brotherhood of Teamsters (IBT); Iowa
Department of Transportation (Iowa); J.
B. Hunt Transport, Inc. (J.B. Hunt);
MassachusettsDepartment of State
Police (Massachusetts);
MichiganDepartment of State
(Michigan); New Jersey Department of
Transportation, Division of Motor
Vehicles (New Jersey); NewYork State
Department of Motor Vehicles (New
York DMV); NewYork State Department

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Public Meeting
On August 20, 1998, a public meeting
was held at DOT headquarters to
discuss various issues related to
implementing section 4007 of TEA–21.
By Federal Register notice, members of
the public were notified of the meeting
and also invited to submit written
comments to the docket(63 FR 40387,
July 29, 1998).
Interim Final Rule (IFR)
On December 8, 1998, the agency
published an IFR adding Part 381 to the
FMCSRs to implement section 4007 of
TEA–21(63 FR 67600). The IFR
explained procedures that a person
must follow when requesting a waiver
and applying for an exemption to the
FMCSRs. The IFR also described steps
to be taken by the agency when it
processes requests for waivers and
applications for exemptions, and
considers proposals for pilot programs.
The public was afforded a 60-day
comment period.

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of Transportation (New York DOT);
OhioDepartment of Public Safety (Ohio);
Owner-OperatorIndependent Drivers
Association, Inc. (OOIDA); West
VirginiaDepartment of Transportation,
Division of Motor Vehicles(West
Virginia); U.S. Equal Employment
OpportunityCommission (EEOC);
Vermont Agency of
Transportation,Department of Motor
Vehicles (Vermont); and, the
WisconsinDepartment of Transportation
(Wisconsin).
The commenters were generally
favorable to having regulations in the
FMCSRs that concern waivers and
exemptions, and pilot programs within
FMCSA. However, most commenters
had concerns about particular aspects of
the IFR. We will discuss the comments
by subject matter, followed by FMCSA’s
response.
Implementation of Section 4007 of
TEA–21 by IFR
Advocates argue the IFR was
procedurally inadequate. They disagree
with the agency’s assertions that it was
impracticable to publish a Notice of
Proposed Rulemaking(NPRM), review
the public comments, and issue a final
rule prior to the statutory deadline. In
essence, Advocates disagrees with the
agency’s reliance on the practice and
procedure elements of the IFR as
justification for its immediate adoption.
FMCSA Response: We believe that the
agency demonstrated compelling
reasons, and exercised an appropriate
use of authority under the
AdministrativeProcedure Act (APA), 5
U.S.C. 553(b), in promulgating 49
CFRPart 381. The APA permits an
agency to waive the normal notice and
comment requirements if the agency
finds, for good cause, that it would be
impracticable, unnecessary, or contrary
to the public interest. Section 4007 of
TEA–21 required the agency to
implement regulations regarding the
procedures for requesting an exemption,
not later than 180 days after the date of
TEA–21’s enactment on June 9, 1998.
Therefore, the agency determined it was
impracticable to publish a NPRM,
review the comments received, and
publish a final rule by the statutory
deadline (December 9, 1998).
Although an NPRM could have been
published within the 180-day period,
the agency believed it was unrealistic to
assume that the rulemaking could have
been completed by the statutory
deadline, regardless of the number and
nature of the comments. The solicitation
of information through the public
meeting held on August 20, 1998 was an
appropriate alternative to issuing a
NPRM, given the statutory deadline and

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the administrative nature of the
rulemaking. We considered remarks by
meeting participants and written
comments to the docket. Therefore,
considering the statutory deadline,
FMCSA did provide the public a 60-day
comment period in which to offer
comments and suggestions on how the
procedural rules should be developed to
implement section 4007 of TEA–21.
Consistent with section 4007 of TEA–
21, the IFR established requirements for
receiving and processing waivers and
exemptions, and initiating and
managing pilot programs. FMCSA
believes the requirements are
administrative in nature and only reflect
agency practice and procedure, because
the IFR did not establish pass-fail
criteria such as crash rates, safety
ratings, compliance review results, or
driving records for persons requesting
waivers or applying for exemptions. For
these reasons, we believe there was
good cause to waive notice and
comment through a NPRM.
Furthermore, FMCSA stands by a
previous determination that there was
good cause under 5 U.S.C. 553(d)(3) to
make the IFR immediately effective
upon publication. Since the IFR was
published prior to the statutory
deadline, delaying the effective date
would have been inconsistent with
implementing the statute by the
deadline, or as soon as possible
thereafter.
Hours of Service Rules
IBT argues that FMCSA does not have
statutory authority.to grant waivers and
exemptions from the hours of service
rules under 49 U.S.C. 31502
(Requirements for Qualifications, Hours
of Service, Safety, and
EquipmentStandards). IBT believes that
authority to issue waivers and
exemptions and initiate pilot programs
under 49 U.S.C. Chapter 313 (CMV
Operators) or 49 U.S.C. 31136 is limited.
FMCSA Response: Although the
hours-of-service (HOS) regulations in 49
CFR part 395 were originally
promulgated under § 204 of the Motor
Carrier Act of 1935 (MCA) (now
codified, in relevant part, at 49 U.S.C.
31502), these regulations were reissued
by law under the Motor Carrier Safety
Act of 1984 (MCSA) (now codified at 49
U.S.C. 31136). The HOS rules are
therefore eligible for waivers and
exemptions.
Section 206(a) of the MCSA required
DOT to issue regulations ensuring,
among other things, that ‘‘(2) the
responsibilities imposed upon operators
of CMVs do not impair their ability to
operate such vehicles safely; (3) the
physical condition of operators of CMVs

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is adequate to enable them to operate
such vehicles safely; and (4) the
operation of CMVs does not have
deleterious effects on the physical
condition of such operators’’ (codified,
in slightly revised terms, at 49 U.S.C.
31136(A)(2)–(4)). These provisions
authorize the agency to adopt HOS
regulations to prevent excess on-duty
and driving time from degrading
drivers’’ ability to operate large vehicles
safely.
Although DOT was generally required
to complete all necessary rulemaking
within 18 months after MCSA’s date of
enactment, § 206(e) as recodified in
1994, provides that ‘‘[i]f the Secretary
does not issue regulations on CMV
safety under this section, regulations on
CMV safety prescribed by the Secretary
before October 30, 1984, and in effect on
October 30, 1984, shall be deemed in
this subchapter to be regulations
prescribed by the Secretary under this
section’’ (49 U.S.C. 31136(d)).
When the FHWA, FMCSA’s
predecessor agency, prepared to
implement § 206 of MCSA, it decided
that significant changes to the HOS
rules were not then required. FHWA
published a final rule on May 19, 1988
(53 FR 18042) making only minor
revisions to 49 CFR part 395. Because
that rule was issued considerably after
the 18-month deadline in section 206(e),
the existing HOS rules, as amended by
the May 19 rule, were and are deemed—
by law pursuant to 49 U.S.C. 31136(d)—
to be issued under 49 U.S.C. 31136.
Recognizing this fact, the May 19 rule
amended the authority citation for Part
395 to refer to the MCSA (then codified
as 49 U.S.C. App. 2505,’’ now as 49
U.S.C. 31136) as well as the MCA (then
‘‘49 U.S.C.3102,’’ now 49 U.S.C. 31502).
Therefore, IBT’s argument is
incorrect. Because 49 U.S.C. 31315
allows waivers or exemptions of rules
issued under 49 U.S.C. 31136 (or 49
U.S.C. chapter 313) and the HOS rules
are issued under section 31136, FMCSA
has statutory authority to grant waivers
and exemptions from the HOS rules.
Regulations Ineligible for Waiver and
Exemption
Many commenters identified
regulations for which waivers and
exemptions should not be considered.
For example, Advocates requests that
Parts 383 (CDL Standards), 391
(Qualifications of Drivers), 392 (Driving
of CMVs), 393(Parts and Accessories
Necessary For Safe Operation), 395
(Hours of Service of Drivers), 396
(Inspection, Repair, And Maintenance),
and 399 (Step, Handhold, and Deck
Requirements for CMVs) be removed
from the list. Additionally, Advocates

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51591

believes that § 390.19 (Motor carrier
identification report) and § 390.21
(Marking of CMVs) should be removed
as well.
OOIDA, AAMVA, Illinois, Michigan,
and Ohio oppose exemptions, waivers,
and pilot programs concerning Part 382
(Controlled Substances and Alcohol Use
and Testing). Alternatively, OOIDA
believes the agency should exclude only
those sections of part 382 that provide
privacy and protection for drivers
required to participate in controlled
substances and alcohol testing.
Illinois and Michigan oppose waivers,
exemptions, or pilot programs
concerning part 391 (Qualifications of
Drivers). IIHS opposes inclusion of the
hours-of-service rules, and West
Virginia is opposed to precluding the
requirements of § 390.21.
FMCSA Response
FMCSA recognizes the commenters’
safety concerns. However, there is no
apparent safety-related reason to change
the list of regulations for which waivers
and exemptions may be granted. The list
of regulations in §§ 381.200, 381.300,
and 381.400 is an indication that the
agency will accept requests for waivers
and exemptions and should not be
construed as an indicator that the
agency will grant waivers or exemptions
which fail to satisfy the statutory
requirements of TEA–21. FMCSA will
review each request and waiver to
ensure, to the greatest extent
practicable, that they satisfy the
statutory requirements. FMCSA believes
it would be inappropriate to exclude
safety regulations issued pursuant to 49
U.S.C. Chapter 313 and 31136 from
consideration under 49 CFR Part 381.
FMCSA believes doing so would suggest
the agency had predetermined that it is
unlikely a person could develop an
alternative means of achieving the safety
outcomes provided by full compliance
with specific regulations. Innovation is
possible, and the regulations concerning
waivers, exemptions, and pilot
programs should not be so limited as to
preclude consideration of alternative
approaches to achieving or even
improving motor carrier safety.
Section 4007 of TEA–21 requires that
the terms and conditions for all waivers
and exemptions achieve a level of safety
equivalent to or greater than what
would be achieved by complying with
the safety regulations. To satisfy this
statutory test, persons requesting
waivers or applying for exemptions
must present a credible alternative to
the regulation and explain how that
alternative would achieve an equivalent
or greater level of safety. If the request
or exemption were effectively less

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

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to operate a CMV in interstate
commerce for more than 3 months
should be treated as an interstate motor
carrier for purposes of MCMIS. Since
exemptions provide regulatory relief for
up to two years, and may be renewed,
it is important that all CMVs operating
in interstate commerce under the terms
of the exemption be marked.
For exemptions granted as part of a
pilot program, FMCSA uses the same
list of regulations provided in § 381.300,
What is an exemption? We use the same
list because there is no apparent reason
that participants in a pilot program for
up to three years should be treated
differently from interstate motor carriers
required to complete Form MCS–150
and to mark their CMVs.
Define the Term ‘‘Equivalent’’
West Virginia believes the agency
needs to define ‘‘equivalent.’’ As West
Virginia stated:
When we discuss safety issues on the
nation’s highways, government, industry,
and any associated party should have an
established baseline for which the discussion
is to be based upon in order to make fair
comparisons. The establishing of any such
baseline or definition of equivalent terms can
be developed in the rulemaking process. This
baseline or definition of equivalent should be
one that can be uniformly applied in most if
not all safety regulations.

EEOC believes the legislative history
suggests the term ‘‘equivalent’’ is
intended to ‘‘describe a reasonable
expectation that safety not be
compromised.’’ EEOC urged the agency
to adopt a regulatory definition that
reflects congressional intent.
Advocates disagrees with the agency’s
use of language in the IFR preamble to
describe the ‘‘equivalent or greater
safety’’ standard. Advocates argues the
agency is precluded from granting
waivers and exemptions, and
conducting pilot programs on the basis
of an unspecified, free-floating or ad hoc
characterization of equivalent or greater
safety.
FMCSA Response: We do not believe
it is necessary to include a definition of
‘‘equivalent’’ in order to effectively
implement section 4007 of TEA–21.
Moreover, we agree withEEOC that the
legislative history suggests the term
‘‘equivalent’’ is intended to describe a
reasonable expectation that safety not be
compromised. However, we do not
believe that persons who intend to
request waivers, apply for exemptions,
or propose pilot programs need a
regulatory definition to understand that
the agency will not grant any of the
above if there is reason to believe that
safety will be compromised. A
definition of ‘‘equivalent’’ would not

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serve as a substitute for an analysis of
the potential safety impacts of a given
request for a waiver, application for an
exemption, or proposal for a pilot
program. Furthermore, FMCSA believes
that adopting a definition for
‘‘equivalent’’ would not increase the
likelihood there will be agreement
among the agency, persons seeking
waivers, exemptions, or pilot programs,
or interested parties as to whether the
terms and conditions of a request would
compromise safety. The agency is solely
responsible for making the final
determination based on all available
information.
The interim regulations have been in
effect for five years. During that time,
the agency has effectively applied the
standard for a reasonable expectation
that waivers, exemptions, and pilot
programs would not compromise safety.
FMCSA believes a regulatory definition
of the term ‘‘equivalent’’ would not
provide a quantitative standard which
could be used to assess all waivers,
exemptions, or pilot programs. FMCSA
continues to adhere to congressional
intent that there is a reasonable
expectation that safety would not be
compromised.
Role of States
Most of the State agencies and
AAMVA expressed concern about the
role of the States in the waiver and
exemption process. As AAMVA stated:
Of most concern to the motor vehicle and
law enforcement community is receiving
ample notification of a proposed waiver or
exemption prior to approval. It is critical to
have advance notice, preferably not less than
90 days, to allow affected agencies at the
State level to share information with their
traffic stop or inspection officials. Michigan
is concerned that the Federal rule preempts
any State laws which may conflict with the
waiver or exemption granted by FMCSA.
Michigan believes Federal rules undercut
State authority and ability to enforce its own
requirements, which may be stricter than the
Federal mandates. Michigan also believes it
is unrealistic to expect the States will be able
to ‘‘disengage’’ their existing regulations
whenever an exception or waiver is granted.

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

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Federal Register / Vol. 69, No. 161 / Friday, August 20, 2004 / Rules and Regulations
believes open and timely
communication provides an opportunity
for ‘‘fair and adequate consideration of
all partners’ ideas and concepts.’’
New Jersey, Vermont, and New York
DOT and DMV also expressed concern
that States have an opportunity to learn
of any proposal prior to FMCSA
approval, so that they have an
opportunity to understand, comment,
and react appropriately.
FMCSA Response: FMCSA is
committed to its safety partnership with
State agencies. State agencies play a
vital role ensuring the safe operation of
CMVs in the U.S. However, the agency
does not plan to provide States with
pre-notification of its decisions on
waiver requests, exemption
applications, pilot program proposals,
nor engage in discussions or
deliberations with State agencies about
these matters, in a forum that is not
open to public participation. Such
actions would be inconsistent with the
principles of the Administrative
Procedure Act (5 U.S.C. 551 et. seq.).
Discussions or deliberations between
agency personnel and third parties that
are intended to influence agency
decisions, should be transparent.
Limiting opportunity for comment to
certain parties, while intentionally
excluding all other interested parties,
would be inappropriate.
FMCSA continues to work with State
agencies to ensure adequate notification
of its decisions when the information is
first made available to the general
public. We continue to seek public
comment on applications for
exemptions and proposals for pilot
programs through notice in the Federal
Register. The notice-and-comment
procedure is in the public interest, so
that all interested parties have an equal
opportunity to comment.
FMCSA does not expect State
agencies to bear responsibility for
implementing section 4007 of TEA–21.
We welcome State participation, to the
extent States have resources to assist
FMCSA in monitoring the safety
performance of persons who are granted
waivers or exemptions, or are allowed to
participate in pilot programs.
As for FMCSA decisions to grant
waivers and exemptions, or initiate pilot
programs, the agency neither requires
nor requests States to adopt compatible
regulations, or to abandon more
stringent safety regulations. First, the
scope of waivers, exemptions and pilot
programs is usually very limited in
terms of the specific requirements for
which alternative approaches to
achieving safety are being considered.
Second, the population of motor carriers
and drivers is limited, usually through

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eligibility criteria for exemptions and
pilot programs. In the case of waivers,
the statutory requirement that waivers
be issued only for non-emergency and
unique events, and be limited in scope
and circumstances, suggests that there
will not be a large population of drivers
or carriers covered by waivers at any
given time. Given the statutory
constraints, it is unlikely the agency
would grant a waiver or exemption, or
initiate a pilot program so broad in
scope that States would be forced to
amend or revise laws or regulations to
accommodate those carriers and drivers
covered by the waiver, exemption, or
pilot program.
As 49 U.S.C. 31315(d) provides, no
State shall enforce any law or regulation
that conflicts with or is inconsistent
with a waiver, exemption, or pilot
program while the waiver, exemption or
pilot program is in effect. Therefore,
preemption of State rules applies only
with respect to persons operating under
a waiver or exemption, or participating
in a pilot program. This means all motor
carriers and drivers not operating under
a waiver or exemption, or participating
in a pilot program, must continue
complying with all applicable State
laws and regulations. Amending or
revising State laws or regulations would
be impractical, since such amendment
or revision would be limited to drivers
or carriers operating under waiver,
exemption, or pilot programs only. To
amend or revise State motor carrier
safety laws or regulations that result in
less stringent requirements than the
applicable FMCSRs would be
inconsistent with the Motor Carrier
Safety AssistanceProgram (MCSAP)
regulations, and, in some cases, would
subject such rules to preemption
pursuant to 49 U.S.C. 31141(c)(3). The
agency’s MCSAP regulations (49 CFR
Part 350) concern eligibility for Federal
funding to supportState motor carrier
safety programs.
Documentation of Waiver or Exemption
Onboard CMVs
Iowa believes the regulations should
explicitly require that persons granted a
waiver must carry documentation
issued by the FMCSA and provide the
documentation to State officials during
any traffic stop or roadside inspection.
Vermont requests that paperwork
concerning the waiver or exemption be
with the driver or carrier and available
for review during roadside inspections.
OOIDA believes it is important to adopt
procedures and generate documentation
for each waiver, exemption, or pilot
program granted, so that carriers and
drivers can be expeditiously identified
to Federal and State enforcement

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51593

officials as participants in a Federal
program that exempts them from
Federal and conflicting State motor
carrier safety regulations.
FMCSA Response: FMCSA agrees
with the commenters. We usually
require persons operating under the
terms and conditions of waivers,
exemptions, or pilot programs to carry
copies of FMCSA-issued documents to
identify them as such. The only
exceptions to date have been
exemptions granted to motor carriers
operating certain vehicles manufactured
by the Ford Motor Company (Ford) and
General Motors Corporation (GM),
concerning fuel tank fill rates and
certification labels on fuel tanks.1 In
those cases, the agency published
information about the make, model and
vehicle identification numbers (VINs) of
the vehicles covered by the exemption.
Since the vehicle manufacturers applied
for the exemption on behalf of the
customers operating the vehicles,
developing a list of all vehicles and
motor carriers operating these vehicles
was unnecessary, given the nature of the
exemption. FMCSA concluded that use
of the make, model, and range of VINs
was sufficient for enforcement
personnel to determine whether a given
vehicle was covered by the exemption.
Driver Physical Qualifications
Several commenters discussed the use
of exemptions and pilot programs for
driver physical qualifications. As EEOC
stated:
It is encouraging that the waiver and
exemption provisions of section 4007 and
[FMCSA’s] interim implementing regulations
require individualized assessment of the
safety-related qualifications of persons who
otherwise would be denied employment
opportunities pursuant to blanket categorical
exclusions under the FMCSRs.
Individualized assessment of qualifications is
one of the hallmarks of the Americans with
Disabilities Act [ADA]. Indeed, the ADA’s
purposes include ensuring that qualified
individuals with disabilities are not denied
equal employment opportunity by virtue of
exclusionary qualification standards.

J.B. Hunt recommends that pilot
programs should be initiated to allow
motor carriers to investigate whether
more stringent medical standards could
improve public safety.
Georgetown believes several of the
physical standards, in particular hearing
and vision, are discriminatory and
violate the government’s obligations
1 The exemption concerning fuel tank fill rates
and certification labels for vehicles manufactured
by Ford was published on December 20, 1999 (64
FR 71184). The exemption concerning fuel tank fill
rates and certification labels on vehicles
manufactured by GM was published on April 26,
2000 (65 FR 24531).

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under section 504 of the Rehabilitation
Act. Georgetown recommends the
agency should continue to reexamine
those standards and revise them based
on data concerning the safety of drivers
who are monocular or whose hearing
does not meet existing standards.
Additionally, Georgetown believes
that the waivers, exemptions, and pilot
program regulations do not provide
adequate guidance for a driver with a
disability, who seeks to establish he or
she meets the requirements for an
exemption. Georgetown argues that an
individual driver seeking an exemption
from part 391 will have no idea what to
provide the agency. Georgetown also
argues that the procedures in Part 381
are inappropriate, since detailed
procedures for persons seeking
exemptions from the vision standard
has been established. Georgetown
believes the agency should fully
disclose the vision exemption process.
FMCSA Response: We believe part
381 provides adequate guidance for
motor carriers and drivers who are
interested in pursuing a waiver,
exemption, or pilot program concerning
physical qualifications for drivers. Since
the physical qualifications rules concern
medical issues that require an
individualized assessment by qualified
medical professionals, developing a
one-size-fits-all set of procedures for the
range of medical conditions which a
waiver, exemption, or pilot program
may be requested would be impractical.
As to whether generic guidance for
specific categories of physical
qualifications issues can be developed,
the agency has initiated programs to
accommodate persons with conditions
covered by those categories. For
example, the agency has a vision
exemption program for drivers with an
eye that fails to meet current vision
standards. Interested persons need only
contact the agency for detailed guidance
on how to apply for an exemption. On
September 3, 2003 (68 FR 52441),
FMCSA published a notice of final
determination to begin an exemption
program for insulin dependant diabetic
drivers. The notice provides the
eligibility criteria for drivers who intend
to apply for a diabetes exemption. The
notice also provides instructions on
how to obtain additional information
needed to apply for the exemption. The
physical qualifications process is
intended to ensure that each driver is
given individual attention and guidance
based on his or her medical
circumstances. FMCSA believes this is
the most effective manner to assist
drivers, and to ensure that each
exemption granted achieves a level of
safety equivalent to, or greater than, the

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level of safety that would be achieved
through full compliance with the
physical qualifications rules under part
391.
J.B. Hunt commented on employers
having the opportunity to explore more
stringent physical qualifications as a
means of improving safety. The FMCSRs
do not prohibit motor carriers from
establishing policies that are more
stringent than the safety regulations (49
CFR 390.3(d). Therefore, employers
wanting to establish more stringent
medical examination procedures and
pass-fail criteria may do so without
requesting a waiver, applying for an
exemption, or proposing a pilot
program.
Public Notification of Waivers
According to Advocates, the agency’s
procedures for administering waivers
are insufficient to ensure both public
awareness and safety. Advocates argues
the agency has a responsibility to notify
the public when a waiver from specific
parts of the FMCSRs has been awarded,
identify the carriers or drivers awarded
the waiver, the waiver period, the
public interest finding by the agency,
and the finding that the waiver is likely
to achieve a level of safety that is
equivalent to, or greater than, the level
of safety that would be obtained in the
absence of the waiver.
IBT noted the public should be
informed of the agency’s disposition of
waiver requests promptly after a
decision is made.
AAA also believes it is important for
the agency to communicate with the
public about waivers, including
publishing a notice in the Federal
Register for waivers that have been
granted or denied.
FMCSA Response: FMCSA
understands commenters’ intent to
make information about waivers readily
available to the public. Nevertheless, we
believe there would not be much public
benefit associated with the effort.
FMCSA receives a small number of
requests for waivers each year, and only
a few of those have been granted. There
is no discernible public benefit to using
limited agency resources to manage a
public docket on requests for waivers
which, if granted, are limited to no more
than three months in duration.
Depending on the specific event,
waivers may cover a period as short as
a few hours. Also, the scope of each
waiver is likely to be unique and cover
a small number of drivers or motor
carriers.
Given the statutory constraints for
granting waivers, the specific nature of
waivers, and the relatively small

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number granted, FMCSA does not plan
to publish decisions on waivers.
Compliance Monitoring of Persons
Granted Waivers or Exemptions
Advocates disagrees with the agency’s
decision to avoid additional roadside
inspections and compliance reviews of
carriers or commercial drivers receiving
waivers or exemptions. As Advocates
stated:
Simply awarding exemptions and
establishing initial conditions under which
they shall operate is insufficient oversight
and monitoring to ensure that the legislative
goal of providing adequate safety
countermeasures has been met. [FMCSA]
cannot award exemptions and simply wait
for their statutory time limit to expire. The
agency has an affirmative obligation to
oversee the operation of exemptions. A
presumption that drivers and carriers will
receive no more oversight through
compliance reviews or roadside inspections
to ensure that safety has not been
compromised, despite approved, selective
non-compliance with specific parts of the
FMCSRs, is neither a responsible approach to
the heavy safety duties generally imposed
upon the agency by the statute, nor is it
adequate conformity to the legislative
direction provided by the statute.

FMCSA Response: FMCSA agrees
with Advocates that granting
exemptions with terms and conditions
would not, by itself, satisfy the agency’s
obligations to monitor the safety
performance of persons granted
exemptions or allowed to participate in
pilot programs. However, Advocates
characterization of the agency’s
oversight of waivers, exemptions, and
pilot programs does not accurately
portray how the agency handles its
responsibilities. FMCSA provides an
appropriate level of safety oversight for
all exemptions granted, which includes
the Home Heating Oil Pilot Program
(July 13, 2001; 66 FR 36823),2 the only
pilot program initiated since
implementation of section 4007 of TEA–
21. Oversight consists of reviewing
roadside inspection and crash data,
driving records for participating drivers,
and all information that exemption
grantees and pilot program participants
are required to submit to the agency
during the period the exemption or pilot
program is in effect. FMCSA may
2 FMCSA announced the initiation of a pilot
program to grant an exemption from the weekly
hours-of-service restrictions for drivers of CMVs
making home heating oil deliveries that occur
within a 100 air-mile radius of a central terminal
or distribution point, during winter months. During
the pilot program, which ended recently,
participating motor carriers were allowed to
‘‘restart’’ calculations for the 60-or 70-hour rule,
whichever applies, after the driver has an off-duty
period encompassing two consecutive nights offduty that include the period of midnight to 6 a.m.

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exercise its statutory authority under 49
U.S.C. 506 to begin an investigation any
time there is reason to believe there are
violations of the safety regulations, or of
the terms and conditions of a waiver,
exemption, or pilot program.
Furthermore, 49 U.S.C. 31315(b)(2)
requires FMCSA to immediately revoke
an exemption if: (1) The person fails to
comply with the terms and conditions
of the exemption, (2) the exemption has
resulted in a lower level of safety than
was maintained before the exemption
was granted, or (3) continuation of the
exemption would not be consistent with
the goals and objectives of 49 U.S.C.
Chapter 313 or 49 U.S.C. 31136. Section
31315(c)(3) provides similar authority
for revocation of participation of a
motor carrier, commercial motor
vehicle, or driver for failure to comply
with the terms and conditions of the
pilot program, or if continued
participation would not be consistent
with the goals and objectives of 49
U.S.C. Chapter 313 or 49 U.S.C. 31136.
FMCSA has granted 910 vision
exemptions since 1998. As a result of
the agency’s on-going monitoring
activities, 19 exemptions were revoked
for bad driving (the drivers contributed
to accidents, had their licenses
suspended or revoked, or received an
excessive number of moving violations),
and 11 were canceled for failure to
submit required information. In
addition, 20 drivers were denied
renewals after the first two-year period
because their driving records did not
meet the safety level required by the
statute (equivalent to, or better than, the
level of safety that would be achieved
by complying with the regulations).
FMCSA believes it has the tools to
effectively monitor persons operating
under the terms and conditions of a
waiver or exemption, or participating in
a pilot program, and to take appropriate
action for failure to comply with the
requirements of the program. However,
FMCSA does not believe motor carriers,
CMVs, or drivers should be subjected to
additional inspections or audits solely
because a waiver or exemption has been
granted, or participation in a pilot
program has been approved. We believe
the incentives for implementing
innovative approaches to achieving
safety performance goals would be
overshadowed if the flexibility provided
by the waiver, exemption or pilot
program were coupled with more
rigorous or frequent enforcement
activities. We believe using Federal and
State resources to conduct more
frequent inspections and audits could
adversely impact enforcement programs
intended to identify and remove from
service unsafe CMVs and drivers, as

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well as the resources used to target
motor carriers that have demonstrated
poor safety performance. Enforcement
resources should be targeted at those
motor carriers, drivers and vehicles that
are most likely to pose a safety risk, not
at potentially discouraging privatesector efforts to explore innovative
approaches to achieving safety
performance goals.
Adoption of Interim Regulations
FMCSA has not made any changes to
its interim regulations based on the
comments. On October 1, 2001, FMCSA
made technical amendments to the
interim regulations in Part 381 to
remove references to the Federal
Highway Administration, the Office of
Motor Carrier and Highway Safety, and
the Office of Motor Carrier Research and
Standards (66 FR 4986, 49872). Part 381
remains divided into six subparts:
Subpart A—General describes the
purpose and applicability of part 381,
and defines certain terms used
throughout the part;
Subpart B—Procedures for Requesting
Waivers provides a plain-language
description of waivers, the procedures
for requesting a waiver and the process
FMCSA will use to review waiver
requests;
Subpart C—Procedures for Applying
for Exemptions provides a plainlanguage description of exemptions, the
procedures for applying for an
exemption, the process FMCSA will use
to review exemption applications, and
the conditions under which FMCSA
will revoke an exemption;
Subpart D—Initiation of Pilot
Programs explains how pilot programs
operate, and how a pilot program can be
initiated (which includes a detailed list
of informationFMCSA requests from
individuals who would like to
recommend that the agency start a pilot
program);
Subpart E—Administration of Pilot
Programs codifies in the FMCSRs a
plain-language version of the statutory
requirements concerning FMCSA’s
administration of pilot programs so that
all interested parties will have a
convenient reference; and
Subpart F—Preemption of State Rules
codifies in the FMCSRs a plain-language
version of the Federal preemption of
any State law and regulation that
conflicts with or is inconsistent with
respect to a person operating under a
waiver, exemption, or pilot program.
Regulations for Waiver and Exemption
In accordance with section 4007 of
TEA–21, FMCSA is authorized to grant
waivers and exemptions from any
FMCSRs under statutory authority of 49

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51595

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

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monitor the crash involvement of
entities operating under the terms of a
waiver.
FMCSA retains the motor carrier
identification report(Form MCS–150)
requirement at 49 CFR 390.19 as one of
the rules that may be waived. We
continue to believe there is no apparent
benefit to gathering information on
entities that have not previously
operated CMVs in interstate commerce
and do not intend to do so after the term
of the waiver expires.
For exemptions, FMCSA requires
intrastate motor carriers and non-motor
carrier entities to complete FormMCS–
150 (§ 390.19), and to mark all CMVs
(§ 390.21) operating in interstate
commerce under the terms of the
exemption because exemptions provide
regulatory relief for up to two years, and
may be renewed.
Summary of Procedures and
Requirements
Requests for a waiver or applications
for exemption should be addressed or
hand-carried to the Administrator of the
FMCSA. Such requests or applications
need not be in any particular form, but
should be typed or clearly hand-printed
and include basic information, such as
the identity of the person to be covered
by the waiver or exemption, the name
of the motor carrier or other entity
responsible for using or operating CMVs
during the waiver or exemption time
period, and the motor carrier or other
entity’s principal place of business. The
request or application should include a
statement of: The event or CMV
operation for which the waiver or
exemption will be used; justification as
to why the waiver or exemption is
required; the regulation from which the
applicant is requesting relief; estimates
of the total number of drivers and CMVs
that will be operated under the terms
and conditions of the waiver or
exemption; and an explanation of how
the recipient of the waiver or exemption
would ensure that a level of safety
would be achieved that is equivalent to,
or greater than, the level of safety that
would be obtained by complying with
the regulation. As for exemption
applications, the written request must
also include an assessment of the safety
impacts the exemption may have, such
as the impacts that would be
experienced if the exemption is not
granted, and include a copy of all
research reports, technical papers, and
other publications and documents
referenced in the application.
The complete list of information to be
included in the requests for waivers and
applications for exemptions is provided
in § 381.210, How do I request a

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waiver?, and § 381.310, How do I apply
for an exemption?. These requirements
are consistent with the statutory
language in TEA–21.
Review of Waiver Requests
The Office of Policy and Program
Development is responsible for
reviewing waiver requests and making
recommendations to the Administrator.
A copy of the decision signed by the
Administrator will be sent to the
applicant. It will include the terms and
conditions of the waiver, or the
reason(s) for denial of the waiver.
Review of Exemption Applications
The review process for exemption
applications differs because of the
requirements in section 4007 of TEA–
21. TheOffice of Policy and Program
Development reviews exemption
applications. After FMCSA reviews an
application for completeness, we will
publish a notice in the FederalRegister
requesting public comments regarding
the application. After the comments are
reviewed, the Office of Policy and
Program Development will make a
recommendation to the Administrator.
Thereafter, FMCSA will publish a final
notice of determination in the Federal
Register.
Initiation and Management of Pilot
Programs
Although TEA–21 does not require
FMCSA to develop regulations
concerning pilot programs, we are
retaining, in subparts D and E of part
381, information describing how to
propose a pilot program, and statutory
requirements for managing a pilot
program. FMCSA believes that
including information about pilot
programs in the FMCSRs provides a
more convenient reference to the motor
carrier industry and the general public
than does Title 49 of the United
StatesCode. The regulations indicate
that FMCSA has authority to initiate
pilot programs after publishing notice
and providing opportunity for public
comment. They also indicate the types
of information that interested parties
should submit to the agency, if they
would like to recommend a pilot
program. The information presented in
subpart E of part 381 is intended to be
a plain-language version of the statutory
requirements for the administration of
pilot programs.
Preemption of State Rules
Section 4007(d) of TEA–21 indicates
that during the time period that a
waiver, exemption, or pilot program is
in effect, no State shall enforce a law or
regulation that conflicts with or is

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inconsistent with the waiver,
exemption, or pilot program. FMCSA is
retaining the preemption language in
part 381, and will also include the
language in the waiver documents and
Federal Register notices concerning
exemptions and pilot programs. The
agency continues to believe this
approach will ensure that State officials
are notified about the Federal
preemption authority. Including such
language in the waiver, and in the
exemption and pilot program notices,
will enable motor carriers to present
inspectors with one document which
informs them of the terms and
conditions of the waiver, exemption, or
pilot program. This document will also
advise the inspectors that State laws and
regulations that conflict with the
waiver, exemption or pilot program are
automatically preempted, and the
duration of the preemption.
Rulemaking Analyses and Notices
Executive Order 12866 (Regulatory
Planning and Review) and U.S. DOT
Regulatory Policies and Procedures
This action is not a significant
regulatory action within the meaning of
Executive Order 12866, or significant
within the meaning of the U.S.
Department of Transportation’s
regulatory policies and procedures. This
action adopts as final, interim
regulations contained in 49 CFR part
381, concerning rules and procedures
for handling requests for waivers and
applications for exemptions, and the
initiation and administration of pilot
programs. These rules will help promote
increased cooperation between the
private sector and the government by
providing a mechanism for exploring
alternatives to certain safety regulations,
while ensuring a level of safety
equivalent to, or greater than, the level
obtained through compliance with the
regulations. We believe adopting the
interim regulations at part 381 will
result in incremental, although not
substantial, economic benefits in cases
where the alternatives provide a more
cost-effective approach to ensuring
motor carrier safety. FMCSA believes
the economic impact of this final rule to
be minimal. Comments were requested
on this subject in the IFR, but none were
received. Therefore, a full regulatory
evaluation is not required.
Regulatory Flexibility Act
In compliance with the Regulatory
Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business
Regulatory Enforcement Fairness Act
(SBREFA) of 1996), we evaluated the
effects of this final rule on small entities

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and determined that it does not have a
significant economic impact on a
substantial number of small entities. As
discussed in the section above, this rule
adopts interim regulations concerning
requests for waivers, applications for
exemptions from the FMCSRs, and the
initiation and administration of pilot
programs. The provisions concerning
waivers and exemptions will be
especially beneficial to small entities,
since these entities may be more in need
of regulatory relief than larger
companies. The regulations were
written in question-and-answer format
using plain language to help ensure that
small entities understand how to
request a waiver and apply for an
exemption, and how the agency will
handle such requests and applications.
The provisions concerning pilot
programs are likely to be less beneficial
to small entities. Pilot programs would
generally require a large number of
participating motor carriers and drivers
willing to operate under identical terms
and conditions. By contrast, waivers
and exemptions may be carrier- or
driver-specific and therefore better
suited to the needs of small entities. As
with the IFR, this final rule does not
require small entities to take any actions
unless they request a waiver, apply for
an exemption, or participate in a pilot
program. The information that would be
required for a waiver or an exemption
has been kept to a minimum. For this
reason, FMCSA certifies this final action
will not have a significant economic
impact on a substantial number of small
entities.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995
[44 U.S.C. 3501 et seq.] does not apply,
because this final rule does not contain
information collection requirements
subject to Office of Management and
Budget (OMB) approval. However,
waivers, exemptions, and pilot
programs include certain information
collection requirements as part of the
terms and conditions for the regulatory
relief granted. In addition, the agency is
required by section 4007 of TEA–21 to
monitor the implementation of
exemptions to ensure compliance with
the terms and conditions, and to ensure
sufficient recordkeeping by participants
in pilot programs to facilitate the
collection and analysis of data.
Therefore, FMCSA will consider the
information collection requirements for
any special recordkeeping requirements
associated with the waiver, exemption,
or pilot program, and, if necessary,
request approval from OMB.

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National Environmental Policy Act
(NEPA)
The agency has analyzed this action
for the purpose of the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321 et seq.). We
have determined under our
environmental procedures Order 5610.1,
published on March 1, 2004, that this
action is categorically excluded (CE)
under Appendix 2, paragraph 6(b.) of
the Order from further environmental
documentation. This CE relates to
regulations describing FMCSA’s
procedures that persons applying for a
waiver, requesting an exemption, and
proposing a pilot program must follow.
The regulations also explain what
procedures FMCSA will use to evaluate
the waiver application, exemption
request, or proposed pilot program,
including notifying the public, for the
purpose of ensuring transportation
safety. In addition, the agency has
determined that the action includes no
extraordinary circumstances that would
have any effect on the quality of the
environment. Thus, the action does not
require an environmental impact
statement.
We have also analyzed this action
under the Clean Air Act, as amended
(CAA) section 176(c), (42 U.S.C. 7401 et
seq.) and implementing regulations
promulgated by the Environmental
Protection Agency. We have determined
that approval of this action is exempt
from the CAA’s General Conformity
requirement since it pertains only to
requirements persons must follow to
request waivers and exemptions from
the FMCSRs, and sets forth procedures
the FMCSA will use to process these
requests for waivers, applications for
exemptions and those to initiate pilot
programs. We also determined that this
action will not result in any emissions
increase, nor will it have any potential
to result in emissions that are above the
general conformity rule’s minimum
emission threshold levels. Moreover, it
is reasonably foreseeable that the rule
will not increase total commercial motor
vehicle mileage, change the routing of
commercial motor vehicles, how
commercial motor vehicles operate or
the commercial motor vehicle fleet-mix
of motor carriers.
Energy Supply, Distribution, or Use
The FMCSA has analyzed this action
under Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action,’’ because it is not a
significant regulatory action under

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51597

Executive Order 12866, and it is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy.
Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 requires each
Federal agency to prepare a written
statement assessing the effects of any
Federal mandate in a proposed or final
rule that may result in an expenditure
of $100 million or more (adjusted
annually for inflation) in any one year
by State, local, and tribal governments,
in the aggregate, or by the private sector.
This final rule does not contain such a
mandate, and the requirements of Title
II do not apply.
Civil Justice Reform
We reviewed this rule under
Executive Order 12988, Civil Justice
Reform, and determined it meets
applicable standards to minimize
litigation, eliminate ambiguity, and
reduce burden.
Protection of Children
We analyzed this rule under
Executive Order 13045, Protection of
Children From Environmental Health
Risks andSafety Risks. This rule is not
economically significant and does not
concern an environmental risk to the
health or safety of children.
Taking of Private Property
FMCSA certifies that this rule will not
affect a taking of private property or
otherwise involve taking implications,
under Executive Order 12630,
Governmental Actions and Interference
with Constitutionally ProtectedProperty
Rights.
Intergovernmental Review of Federal
Programs
Catalog of Federal Domestic
Assistance Program Number 20.217,
Motor Carrier Safety. Regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and
activities do not apply to this program.
Federalism
FMCSA has analyzed this final rule in
accordance with the principles and
criteria contained in Executive Order
13132 (Federalism). We have
determined that this rule does not have
a substantial direct effect on States, nor
would it limit the policymaking
discretion of the States. Nothing in this
document preempts any State law or
regulation.
Although the rule itself does not
preempt State and local laws and

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Federal Register / Vol. 69, No. 161 / Friday, August 20, 2004 / Rules and Regulations

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

established in the November 2003 final
rule, we bifurcated our response. This
document is the second of two
documents responding to the petitions.
It addresses those issues raised by
petitioners regarding positioning of the
5th percentile adult female, six-year-old
and three-year-old test dummies;
determination of target points during
low risk deployment tests;
specifications for child restraint systems
for automatic suppression system tests;
and clarification of seat adjustment
procedures.

Effective date: The amendments
made in this rule are effective
September 1, 2004.
Petitions: Petitions for reconsideration
must be received by October 4, 2004 and
should refer to this docket and the
notice number of this document and be
submitted to: Administrator, National
Highway Traffic Safety Administration,
400 Seventh St., SW., Washington, DC
20590.
List of Subjects in 49 CFR Part 381
Note that all petitions received will be
Motor carriers.
posted without change to http://
Final Rule
dms.dot.gov including any personal
information provided. Please see the
■ The interim regulations published
Privacy Act heading under Rulemaking
December 8, 1998 at 63 FR 67600, as
Analysis and Notices.
amended on October 1, 2001 at 66 FR
Docket: For access to the docket to
49867, Part 381 of Subchapter B, Chapter
read background documents or
III of Title 49 of the Code of Federal
Regulations, are adopted without further comments received, go to http://
dms.dot.gov at any time or to Room PL–
revision.
401 on the plaza level of the Nassif
Issued on: August 17, 2004.
Building, 400 Seventh Street, SW.,
Warren E. Hoemann,
Washington, DC, between 9 a.m. and 5
Deputy Administrator.
p.m., Monday through Friday, except
Federal holidays.
[FR Doc. 04–19155 Filed 8–19–04; 8:45 am]
BILLING CODE 4910–EX–P
FOR FURTHER INFORMATION CONTACT: For
non-legal issues, you may contact Louis
Molino, Office of Crashworthiness
DEPARTMENT OF TRANSPORTATION Standards, at (202) 366–2264, and fax
him at (202) 493–2739.
National Highway Traffic Safety
For legal issues, you may contact
Administration
Christopher Calamita, Office of Chief
Counsel, at (202) 366–2992, and fax him
49 CFR Part 571
at (202) 366–3820.
[Docket No. NHTSA–2004–18905]
You may send mail to these officials
at
the National Highway Traffic Safety
RIN 2127–AJ42
Administration, 400 Seventh St., SW.,
Washington, DC 20590.
Federal Motor Vehicle Safety
Standards; Occupant Crash Protection SUPPLEMENTARY INFORMATION:
National Highway Traffic
Safety Administration (NHTSA), DOT.
ACTION: Final rule; response to petitions
for reconsideration.
AGENCY:

SUMMARY: This document responds, in
part, to petitions for reconsideration of
the amendments we made in November
2003 to the advanced air bag provisions
in the occupant crash protection
standard. Because of time constraints
faced by vehicle manufacturers in
certifying vehicles under procedures

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DATES:

Table of Contents
I. Background
II. Petitions for Reconsideration
III. Summary of Response to Petitions
IV. Test Dummy Positioning Procedures
A. Left Foot—5th Percentile Adult Female
Test Dummy (Barrier Test)
B. Right Foot—5th Percentile Adult Female
Test Dummy (Barrier Test)
C. Chin-on-Steering Wheel Test Procedure
D. Head-on-Instrument Panel Test
Procedure
V. Plane C and Plane D
VI. Child Restraint Systems—Appendix A

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VII. Seat Positioning Procedures
VIII. Miscellaneous
IX. Effective Date
X. Rulemaking Analysis and Notices

I. Background
Federal Motor Vehicle Safety
Standard (FMVSS) No. 208, Occupant
crash protection, specifies performance
requirements for the protection of
vehicle occupants in crashes (49 CFR
571.208). On May 12, 2000, we
published an interim final rule that
amended FMVSS No. 208 to require
advanced air bags (65 FR 30680: Docket
No. NHTSA 00–7013; Notice 1)
(Advanced Air Bag Rule). Among other
things, the rule addressed the risk of
serious air bag-induced injuries,
particularly for small women and young
children, and amended FMVSS No. 208
to require that future air bags be
designed to minimize such risk. The
Advanced Air Bag Rule established a
rigid barrier crash test with a 5th
percentile adult female test dummy, as
well as several low risk deployment and
out-of-position tests using a range of
dummy sizes.
The agency received multiple
petitions for reconsideration to the
Advanced Air Bag Rule. Petitioners
raised a large number of concerns about
the various test procedures in their
written submissions. To address these
issues adequately, the agency held a
technical workshop so that we could
better understand the specific concerns
and better determine if the test
procedures needed refinement.1 The
agency then addressed each petition in
a Federal Register notice published on
December 18, 2001 and made several
changes to the Advanced Air Bag Rule
(66 FR 65376; Docket No. NHTSA 01–
11110). These changes included a
number of refinements to the test
dummy positioning procedures in the
barrier tests and the low risk
deployment tests. The December 2001
final rule also amended the list of child
restraint systems in Appendix A for use
in certain compliance tests through the
removal of child restraints no longer in
production and the addition of other
child restraints.
On November 19, 2003, the agency
published a final rule that responded, in
part, to petitions for reconsideration of
the amendments made in the December
1 The workshop was held on December 6, 2000,
at NHTSA’s Vehicle Research and Test Center in
East Liberty, Ohio. Representatives of 18 vehicle
manufacturers and 13 seat, sensor, and dummy
manufacturers attended the workshop. Five
different vehicles were used as test vehicles. Some
of the five had been provided by manufacturers
because they were experiencing particular problems
with following the existing test procedures in these
vehicles.

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