[Federal Register: July 29, 1998 (Volume 63, Number 145)]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 389
[FHWA Docket No. FHWA-98-4145]
Federal Motor Carrier Safety Regulations; Waivers, Exemptions,
and Pilot Programs; Public Meeting
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Announcement of meeting.
SUMMARY: The FHWA is announcing a public meeting to solicit information
that will assist the agency in implementing section 4007 of the
Transportation Equity Act for the 21st Century (TEA 21), effective on
June 9, 1998, governing waivers, exemptions, and pilot programs.
Section 4007 amended 49 U.S.C. 31315 and 31136(e) by changing the
agency's authority to grant waivers and exemptions from the Federal
Motor Carrier Safety Regulations (FMCSRs) and to conduct pilot
programs. The new statutory language requires the FHWA, within 180 days
of enactment of TEA 21, to establish procedures by which a person may
request a waiver or an exemption.
The FHWA recognizes the public's interest in how the agency applies
its waiver and exemption authority. For that reason, we are scheduling
a public meeting to obtain comments and ideas from interested persons
to assist the FHWA in implementing section 4007 expeditiously.
DATES: The public meeting will be held on Thursday, August 20, 1998,
between 9 a.m. and 4 p.m. Comments for inclusion in the docket must be
received no later than August 20, 1998.
ADDRESSES: The public meeting will be held in Room 2230 of the DOT
Headquarters Building, 400 Seventh Street, SW., Washington, DC.
Written, signed comments to the docket identified at the beginning of
this document should be sent to: Docket Clerk, U.S. DOT Dockets, Room
PL-401, 400 Seventh Street, SW., Washington, DC 20590-0001. All
comments received will be available for examination at the above
address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except
Federal holidays. Persons desiring notification of receipt of comments
must enclose a self-addressed, stamped envelope or postcard.
FOR FURTHER INFORMATION CONTACT:
General Information. To request time to be heard and for other
general information, contact Dianne Porter, Office of Motor Carrier
Planning and Customer Liaison, (202) 366-4073.
Specific Rulemaking Information. For information concerning
rulemaking, contact Neill L. Thomas, Office of Motor Carrier Research
and Standards, (202) 366-4009 or Charles E. Medalen, Office of Chief
Counsel, (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.
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
An electronic copy of this document may be downloaded using a
computer, modem, and suitable communications software from the
Government Printing Office (GPO) electronic bulletin board service
(telephone: 202-512-1661). Internet users may reach the GPO's web page
Participation and Attendance
All persons who would like to participate in the public meeting
must notify the agency by contacting Dianne Porter by telephone at
(202) 366-4073; E-Mail: email@example.com; or FAX: (202) 366-7298 by
4 p.m., e.t., on Friday, August 14, 1998. All persons attending will be
subject to Federal and DOT workplace security measures. Attendees must
enter the building at the southwest quadrant which is located near the
intersection of Seventh and ``E'' Streets, SW.
The Motor Carrier Act of 1935 gave the FHWA and its predecessor,
the Interstate Commerce Commission (ICC), broad authority to regulate
qualifications and maximum hours of service of employees of, and safety
of operation and equipment of motor carriers (now recodified at 49
U.S.C. 31502), which carried with it implicit authority to waive any
regulation or exempt any entity.
Before TEA 21 (Pub. L. No. 105-178, 112 Stat. 107), the Motor
Carrier Safety Act of 1984 (49 U.S.C. 31136) and the Commercial Motor
Vehicle Safety Act of 1986 (49 U.S.C. 31315) provided the FHWA explicit
authority to waive any part of a regulation, as it applies to a person
or a class of persons, if the action taken was first determined to be
consistent with the public interest and the safe operation of
commercial motor vehicles. Before granting a waiver under these
provisions of law, the FHWA had to publish the proposed waiver and the
reasons for it in the Federal Register for public comment. This was a
considerable limitation on the implicit authority in the 1935 Act
inherited from the ICC in 1967 and presented a difficult test as
interpreted by the U.S. Court of Appeals for the D.C. Circuit in AHAS
v. FHWA, 28 F. 3d 1288 (1994).
With the enactment of TEA 21, the FHWA may grant a waiver or
exemption that relieves a person from compliance in whole or in part
with a regulation if the FHWA determines that such a waiver or
exemption is likely to achieve a level of safety that is equivalent to,
or greater than, the level of safety that would be achieved absent such
a waiver or exemption. The TEA 21 makes a clear distinction between
``waivers'' and ``exemptions.'' It also requires the agency to
establish procedures for considering requests for exemptions. We will
be developing procedures consistent with section 4007.
The new provision gives the FHWA the authority to grant short-term
waivers without public notice and comment. In addition to the safety
criterion that applies to both waivers and exemptions, waivers will
require a ``public interest'' finding. These waivers will only be
granted to particular persons or groups for specific purposes for
periods up to 3 months. The FHWA is interested in receiving comments on
how this new authority should be exercised.
This exemption provision is intended to broaden the agency's
discretion to grant exemptions by overcoming the strict interpretation
in AHAS v. FHWA, supra. As expressed in the legislative history of
section 4007 of TEA 21:
The Court found that the statutory language (49 U.S.C. 31136(e))
required the Secretary to determine, before issuing any waiver, that
no diminution in safety would result, i.e., that it be determined
beforehand there would be absolutely no increase in crashes as a
result of the waivers. To deal with the decision, this section
substitutes the term ``equivalent'' to describe a reasonable
expectation that safety will not be compromised. In the absence of
greater discretion to deal with waivers and exemptions and a new
standard by which to judge them, the Congress would continue to be
the only source to provide regulatory exemptions.
H.R. Conf. Rep. No. 105-550, at 489-490 (1998)
Generally, exemptions issued under this authority may be granted
for only 2 years from date of approval, but are renewable. The agency
has the authority to immediately revoke an exemption if--
(1) The person fails to comply with the terms and conditions of
(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 311, Commercial Motor Vehicle
Safety, or 49 U.S.C. 31136, as the case may be.
Within 180 days of enactment of section 4007 and after notice and
comment rulemaking, the FHWA must specify, by regulation, the
procedures by which a person may request an exemption. Such
regulations, at a minimum, must require a person to submit the
following information with each exemption request:
(1) The provisions from which the person requests exemption;
(2) The time period during which the requested exemption would
(3) An analysis of the safety impacts the requested exemption would
(4) The specific countermeasures the person would undertake to
ensure an equivalent or greater level of safety than would be achieved
absent the requested exemption.
In addition to the above requirements, each request for exemption,
each exemption granted, and each denial must be published in the
Federal Register and explain the rationale for the action taken.
Before granting a request for exemption, the FHWA must notify State
safety compliance and enforcement personnel, including roadside
inspectors, and the public that a person will be operating pursuant to
an exemption and any terms and conditions that will apply to the
Section 4007 of TEA 21 also permits the FHWA to conduct pilot
programs to evaluate alternatives to regulations relating to, or
innovative approaches to, motor carrier, commercial motor vehicle, and
driver safety. Such programs may include exemptions from a current
safety regulation. Before the agency may initiate a pilot program and
before granting exemptions for purposes of the pilot program, the FHWA
must ensure that the safety measures in the project are designed to
achieve a level of safety that is equivalent to, or greater than, the
level of safety that would otherwise be achieved through compliance
with the current safety regulations. The FHWA must also publish, in the
Federal Register, a detailed description of each pilot program,
including the exemptions to be considered, and provide notice and an
opportunity for public comment before the effective date of the
The FHWA recognizes the public's interest in how the agency applies
its waiver and exemption authority and conducts its pilot programs and
wants to expedite the promulgation of the procedural rules. For that
reason, we are scheduling a public meeting to obtain the comments and
ideas from interested persons to assist the agency in implementing
section 4007 expeditiously. The meeting will be held on Thursday,
August 20, 1998, in Room 2230 of the DOT Headquarters building located
at 400 Seventh Street, SW., Washington, DC. Each presentation will be
limited to 20 minutes. Written comments will be accepted and placed in
the public docket along with a transcript of the meeting. All docket
comments and meeting transcripts will subsequently be available for
review in the DOT Docket Room (Room PL-401, 400 Seventh Street, SW.,
Washington, DC) and on the internet (http://dms.dot.gov).
During the hearing we plan to discuss all relevant issues
concerning the application, consideration, and issuance of waivers and
exemptions, and conducting pilot programs. Issues to be discussed
include, but are not limited to the following:
(1) What procedural rules should be developed? How detailed should
(2) What conditions should be attached to a waiver or exemption?
(3) How should the waiver or exemption recipients be monitored?
What criteria should be used?
(4) What should be the terms for renewal of a waiver or exemption?
(5) How should State compliance and enforcement personnel be
Authority: 49 U.S.C. 31136, 31502; and 49 CFR 1.48.
Issued on: July 23, 1998.
Clinton O. Magby, II,
Acting Associate Administrator for Motor Carriers.
[FR Doc. 98-20228 Filed 7-28-98; 8:45 am]
BILLING CODE 4910-22-P