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RULES AND REGULATIONS

Title 67—TRANSPORTATION

DEPARTMENT OF TRANSPORTATION

[ 67 PA. CODE CH. 231 ]

Intrastate Motor Carrier Safety Requirements

[40 Pa.B. 2106]
[Saturday, April 24, 2010]

 The Department of Transportation (Department), under the authority contained in 75 Pa.C.S. §§ 4704 and 6103 (relating to inspection by police or Commonwealth personnel; and promulgation of rules and regulations by department), adopts amendments to Chapter 231 (relating to intrastate motor carrier safety requirements) to read as set forth Annex A.

Purpose of Chapter

 The purpose of Chapter 231 is to prescribe the minimum requirements and qualifications for drivers, vehicles and other matters relating to the intrastate operation of commercial vehicles.

Summary of Comments and Changes in Final Adopted Regulation

 The amendments to the regulations were published as a proposed rulemaking at 39 Pa.B. 999 (February 21, 2009). The proposed rulemaking was also submitted to the Independent Regulatory Review Commission (IRRC) and the House and Senate Transportation Committees (Committees) of the Pennsylvania General Assembly.

 Comments were received from Officer Thomas Sanders and from IRRC. Officer Sanders noted that the existing language of § 231.2 (relating to scope), indicates that the regulation applies to ''vehicles, including motor vehicles and combinations of vehicles, and drivers of motor vehicles engaged in interstate commerce if the registered gross weight of the vehicle or the combination of vehicles exceeds 17,000 pounds.'' He indicated that the reference to 17,000 pounds may be confusing and requested that the language under § 231.2 be modified to be consistent with the definition of ''motor carrier vehicle'' as it appears in the Vehicle Code. The Department agrees that the reference to a vehicle which ''exceeds 17,000 pounds'' should be removed and was removed in the proposed rulemaking. In its place, the regulation references a ''commercial motor vehicle,'' the term used and defined in the Federal Motor Carrier Safety Regulations. Accordingly, no change to the proposed rulemaking was necessary to address this concern.

 IRRC questioned the propriety of including in the chapter the adoption, as statements of policy, of the interpretations of the Federal Motor Carrier Safety Regulations in § 231.10 (relating to adoption of Interpretation of Federal Motor Carrier Safety Regulations). IRRC pointed out that statements of policy are interpretative and fall outside the regulatory review process. Although similar language is found in the currently existing regulations in § 231.411 (relating to adoption of Interpretations of Federal Motor Carrier Safety Regulations, Federal Highway Administration, United States Department of Transportation) as well as in § 229.17 (relating to adoption of interpretation of Federal Motor Carrier Safety Regulations), the Department has amended the language of § 231.10 to more clearly express its intent that any interpretations issued by the Federal Motor Carrier Safety Administration (FMCSA) should be viewed as guidance under these regulation as well.

 The FMCSA Program periodically publishes interpretations of its regulations. The purpose of adopting the interpretations is to ensure that motor carriers, drivers and law enforcement may rely on the FMCSA interpretations. Additionally, adopting the FMCSA interpretations will enhance the uniform interpretation and implementation of the motor carrier safety regulations in this Commonwealth consistent with its application throughout the rest of the United States.

 The FMCSA commented that § 231.8(9) (relating to additions or modification to 49 CFR) of the proposed rulemaking permitted a person 16 years of age or older to operate an articulated farm vehicle. Although 49 CFR 350.341 (relating to 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?) provides some specific variances from the Federal Motor Carrier Regulations which are permitted, FMCSA indicated that the provision permitting a person 16 years of age or older to drive an articulated farm vehicle is not consistent with the requirements to participate in the Federal Motor Carrier Safety Assistance Program (MCSAP). The Department amended § 231.8(9) by removing the proposed exemption and renumbering the remaining exemptions.

 Similarly, FMCSA commented that a farmer who is transporting hazardous materials is subject to the requirements in 49 CFR Part 385, Subpart E (relating to hazardous materials safety permits). Accordingly, the blanket exemption for farmers in § 231.8(14) would need to be modified. The Department modified the language for the exemption in § 231.8(14) to address the concerns raised by FMCSA.

 Subsequent to the close of the comment period, FMCSA notified the Department that the modification in § 231.8(2) to delete the exemption for transportation by the Federal government or an agency established under a compact between states that has been approved by the Congress of the United States was not consistent with the MCSAP requirements. The Federal Motor Carrier Regulations, in 49 CFR 390.3(f)(2) (relating to general applicability), exempt from the regulations ''transportation performed by the federal government, a state, or any political subdivision of a state, or an agency established under a compact between states that has been approved by the Congress of the United States[.]'' The Department addressed this concern by modifying the language of the regulation.

 The Farm Bureau expressed concern regarding the removal of the blanket exemption in the regulation for vehicles and drivers of vehicles that are exempt from registration such as implements of husbandry and farm vehicles. The Farm Bureau indicated that, while it makes sense to require trucking companies to be able to navigate through the myriad of Motor Carrier Regulations, it is unreasonable for farmers to be held to the same standards because farming involves more than just transportation and their transportation activities are sporadic. However, the Farm Bureau also acknowledged that the Department is required to update the regulations to conform with Federal Motor Carrier Regulations.

 A MCSAP compliance audit was performed on the Departments intrastate motor carrier regulations. One of the compliance issues raised by the audit was that the Department's blanket exemptions for farmers exceeded the permissible limits under the MCSAP program. This rulemaking adopts all of the parts of the applicable Federal regulations to ensure that the Department adopts all of the exemptions that apply to the farming industry. The regulations are being adopted in this manner so that if the Federal regulations are amended to create exemptions applicable to the farming industry, the exemptions will automatically be applicable in this State. The method used will ensure that farmers are eligible to take advantage of all applicable exemptions without the Department having to amend the regulation first.

 There were two additional changes which are contained in the final-form rulemaking. The first is the removal of a proposed exemption from the requirement to obtain and display a United States Department of Transportation (USDOT) number. Requiring intrastate carriers to obtain and display a USDOT number will allow the Commonwealth to focus resources on those intrastate carriers who pose the greatest safety risk, and utilize existing Federal computer systems and methodologies to accomplish this task. This mechanism will also afford a uniform method for identifying the motor carrier ultimately responsible for the safety and operation of a motor carrier vehicle, which in many instances is not the vehicle registrant or owner.

 The USDOT number serves as a unique identifier when collecting and monitoring a company's safety information. While vehicle registration cards list the owner of a vehicle, this individual or entity may or may not ultimately be the person responsible for the safety and operation of the vehicle. The FMCSA maintains a database called Motor Carrier Management Information System (MCMIS), which is a Federally-based central repository of commercial vehicle safety data as well as a National inventory of motor carriers subject to the Federal Motor Carrier Safety Regulations. MCMIS utilizes the USDOT number to track and monitor a motor carrier's activities.

 Roadside inspection reports and accident reports for reportable crashes are uploaded to MCMIS and again utilize a carrier's USDOT number and not the owner or registrant of the vehicle. This inspection and accident data is then utilized by the Safety Status Measurement System (SafeStat), which is an automated analysis system that uses crash and inspection data to measure the safety fitness of an individual motor carrier with respect to the rest of the motor carrier population. Carriers are rated in four specific areas: accidents, driver violations, vehicle violations and safety management practices. The system utilizes up to 30 months of this data to perform an overall safety status assessment and assign each carrier a SafeStat score. This score is then utilized by state and Federal enforcement agencies to focus their resources on those carriers posing the greatest safety risk.

 The second change was the addition of an exemption from the location of the rear impact guard for dump trucks, used for roadway construction, maintenance or repair, which are owned or registered by State and local governments. The exemption does not authorize the removal of the existing rear impact guard. However, dump trucks used for roadway construction, maintenance or repair may be equipped with equipment needed to apply salt, cinders and other substances to the roadway. The addition of this equipment results in the nonconforming location of the rear impact guards. This amendment will ensure that the Commonwealth and local governments can continue to use dump trucks to apply salt, cinders and other materials to the roadway.

Persons and Entities Affected

 These regulations will affect all motor carriers and drivers who operate in interstate commerce.

Fiscal Impact

 Implementation of these regulations will not require the expenditure of any additional funds by the Commonwealth or local municipalities. These regulations will not impose any additional costs on the regulated community.

Regulatory Review

 Under section 5(a) of the Regulatory Review Act (71 P. S. § 745.5(a)), the Department submitted a copy of the proposed rulemaking, on February 21, 2009, to IRRC and the Committees for review and comment.

 In preparing these final-form regulations, the Department has considered all comments received from the public, IRRC and the Committees.

 The regulations were deemed approved by the Committees February 24, 2010. IRRC met on February 25, 2010, and approved the final-form regulations.

Effective Date

 The Department will make these regulations effective upon publication in final-form.

Sunset Provisions

 The Department is not establishing a sunset date for these regulations, since these regulations are required to participate in the Federal MCSAP. The Department, however, will continue to closely monitor these regulations for their effectiveness.

Contact Person

 The contact person for technical questions about this final-form rulemaking should be directed to Daryl St. Clair, Bureau of Maintenance and Operations, 400 North Street, 6th Floor, Commonwealth Keystone Building, Harrisburg, PA 17120, (717) 787-6899.

Order

 The Department of Transportation orders that:

 (a) The regulations of the Department, 67 Pa. Code Chapter 231, are amended by rescinding §§ 231.4—231.6; 231.21—231.25, 231.31, 231.32, 231.41—231.44, 231.61—231.66, 231.71 and 231.81—231.85; 231.101—231.111, 231.121—231.127, 231.131—231.135, 231.141—231.144, 231.151—231.153, 231.161—231.163 and 231.171—231.181; 231.201—231.223, 231.231—231.243, 231.251—231.254, 231.271, 231.272, 231.281—231.299, 231.301 and 231.311—231.314; 231.331 and 231.341—231.347; 231.361—231.367; 231.381—231.392; 231.411; 231.451—231.453; and Appendices (A) and (B); and by amending §§ 231.1—231.3 and by adding §§ 231.7—231.10 to read as set forth in Annex A.

 (b) The Secretary of the Department shall submit this order and Annex A hereto the Office of General Counsel and the Office of Attorney General for approval as to legality and form, as required by law.

 (c) The Secretary shall certify this order and Annex A and deposit them with the Legislative Reference Bureau, as required by law.

 (d) This order shall take effect upon publication in the Pennsylvania Bulletin.

ALLEN D. BIEHLER, P. E., 
Secretary

Fiscal Note: 18-414. No fiscal impact; (8) recommends adoption.

 (Editor's Note: For the text of the order of the Independent Regulatory Review Commission relating to this document, see 40 Pa.B. 1471 (March 13, 2010).)

Annex A

TITLE 67. TRANSPORTATION

PART I. DEPARTMENT OF TRANSPORTATION

Subpart A. VEHICLE CODE PROVISIONS

ARTICLE VIII. ADMINISTRATION AND ENFORCEMENT

CHAPTER 231. INTRASTATE MOTOR CARRIER SAFETY REQUIREMENTS

Subchapter A. General

§ 231.1. General information and requirements.

 (a) Purpose. This chapter prescribes the minimum requirements and qualifications for drivers, vehicles and other matters relating to the intrastate operation of commercial motor vehicles. Much of this chapter incorporates by reference 49 CFR Parts 382, 385 and 390—396 and the North American Standard Out-of-Service Criteria. Appropriate parts may be obtained from the following:

 (1) United States Government Printing Office, Book Store, Room 118, Federal Building, 1000 Liberty Avenue, Pittsburgh, Pennsylvania 15222, (412) 644-2721.

 (2) United States Government Printing Office, 100 North 17th Street, Robert Morris Building, Philadelphia, Pennsylvania 19103, (215) 597-0677.

 (3) United States Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, (202) 655-4000.

 (4) Commercial Vehicle Safety Alliance, 1101 17th Street NW, Suite 803, Washington, D.C. 20036.

 (b) Application.

 (1) A motor carrier and its officers, drivers, agents, employees and representatives involved in, or related to, the transportation of intrastate commerce shall comply with this chapter and shall take measures necessary to assure compliance.

 (2) Officers, agents, representatives, drivers and employees of motor carriers concerned with the management, maintenance, operation or driving of vehicles engaged in intrastate commerce shall be conversant with, and knowledgeable of, this chapter.

 (c) Title and name changes. To reconcile differences between this chapter and the incorporated sections of Federal regulations and to effectuate their joint enforcement, except in 49 CFR Part 382 (relating to controlled substances and alcohol use and testing), the following words and terms, unless the context clearly indicates otherwise, shall be substituted for the language of the Federal regulations as follows:

 (1) Reference to the Department of Transportation means the Pennsylvania Department of Transportation.

 (2) Reference to the Secretary means the Secretary of the Pennsylvania Department of Transportation.

 (3) Reference to special agent includes a police officer or a qualified Commonwealth employee.

 (4) Reference to Department means the Pennsylvania Department of Transportation.

 (5) Reference to school bus means the term as defined in 75 Pa.C.S. § 102 (relating to definitions).

 (6) Reference to Director, Office of Bus and Truck Standards and Operations (MC PSD) means Director of the Bureau of Driver Licensing of the Commonwealth.

 (7) Reference to State Director or Division Administrator, FMCSA means the Director of the Bureau of Driver Licensing of the Commonwealth.

 (8) Reference to Medical Program Specialist, FMCSA field service center means the Medical Unit of the Bureau of Driver Licensing of the Commonwealth.

 (d) Forms and documents. References to forms in the Federal regulations incorporated by reference shall be replaced by the appropriate forms prescribed by the Department.

§ 231.2. Scope.

 (a) Except as otherwise provided, this chapter applies to commercial motor vehicles and school buses engaged in intrastate commerce.

 (b) This chapter applies to motor carriers of property or passengers involved in intrastate commerce, whether common carriers, contract carriers or private carriers.

§ 231.3. Definitions.

 The following words and terms, when used in this chapter, have the following meanings, unless the context clearly indicates otherwise:

Qualified Commonwealth employee— The term as it is defined in 75 Pa.C.S. § 4102 (relating to definitions).

School bus—The term as defined in 75 Pa.C.S. § 102 (relating to definitions).

§ 231.4. (Reserved).

§ 231.5. (Reserved).

§ 231.6. (Reserved).

§ 231.7 Adoption of portions of 49 CFR by reference.

 The Department incorporates by reference the following portions of 49 CFR (relating to transportation), subject to §§ 231.3 and 231.8 (relating to definitions; and additions or modifications to 49 CFR).

 (1) Part 382 (relating to controlled substances and alcohol use and testing).

 (2) Part 385 (relating to safety fitness procedures).

 (3) Part 390 (relating to Federal motor carrier safety regulations; general).

 (4) Part 391 (relating to qualifications of drivers and longer combination vehicle (LCV) driver instructors).

 (5) Part 392 (relating to driving of commercial motor vehicles).

 (6) Part 393 (relating to parts and accessories necessary for safe operation).

 (7) Part 395 (relating to hours of service of drivers).

 (8) Part 396 (relating to inspection, repair, and maintenance).

§ 231.8 Additions or modifications to 49 CFR.

 As stated in § 231.7 (relating to adoption of portions of 49 CFR by reference), this chapter generally incorporates 49 CFR Parts 382, 385, 390, 391, 392, 393, 395 and 396. The following modification, additions and deletions to those parts apply:

 (1) The definition of ''commercial motor vehicle'' in 49 CFR 390.5 (relating to definitions) is modified to read as follows:

Commercial motor vehicle—Any motor vehicle or combination used on a highway in intrastate commerce to transport passengers or property when the vehicle meets one of the following conditions:

 (i) Has a gross vehicle weight rating or gross combination weight rating, or gross vehicle weight or gross combination weight, of 17,001 pounds or more, whichever is greater.
 (ii) Is designed or used to transport more than 8 passengers (including the driver) for compensation.
 (iii) Is designed or used to transport more than 15 passengers, including the driver, and is not used to transport passengers for compensation.
 (iv) Is a school bus.
 (v) Is transporting hazardous materials which is required to be placarded in accordance with Department regulations.

 (2) 49 CFR 390.3 (relating to general applicability) is modified by deleting subsection (f)(1).

 (3) 49 CFR 390.3(f)(2) is modified to remove the reference to transportation by a state or any political subdivision of a state.

 (4) 49 CFR 390.19 (relating to motor carrier identification report) is deleted in its entirety.

 (5) 49 CFR 391.2 (relating to general exceptions) is modified to add an exemption for an inspection mechanic who is performing a road test as required under Chapter 175 (relating to vehicle equipment and inspection) from the requirements of 49 CFR Part 391 (relating to qualifications of drivers and longer combination vehicle (LCV) driver instructors).

 (6) 49 CFR 391.2 is modified to add an exemption from the requirements of 49 CFR Part 391 for regularly employed drivers of State and local governments and agencies of State and local government.

 (7) 49 CFR 391.11(b)(4) (relating to general qualifications of drivers) is modified to exempt school bus drivers who are required to comply with the medical regulations in Chapter 71 (relating to school bus drivers).

 (8) 49 CFR Part 391 is modified by adding the following exemption regarding drivers regularly employed as of September 23, 1995, and the parameters for the exemption:

 (i) A regularly employed driver as of September 23, 1995, who cannot meet the physical qualifications requirements of 49 CFR Part 391, will be considered to be qualified to operate in intrastate commerce if certified by the medical examiner and motor carrier in accordance with this section. The driver shall be considered qualified only until the existing unqualifying medical or physical condition significantly worsens or a new unqualifying medical or physical condition develops subsequent to September 23, 1995.

 (ii) The motor carrier's certification shall be based on a review of the driver's past driving safety record and accident history. The motor carrier's certification shall be on a form prescribed by the Department and shall be valid for a period commensurate with the period of the medical examiner's certificate issued in accordance with this chapter.

 (iii) A copy of the medical examiner's initial certificate establishing a driver's qualification under this section and annotated in accordance with paragraph (iv), the most current biannual medical examiner's certificate and the most current certification by the employing motor carrier that the driver is qualified to operate in intrastate commerce shall be maintained in the driver's qualification file for the entire period of the driver's term of employment and for an additional 2 years after termination of employment.

 (iv) If the medical examiner determines that the driver is only qualified to drive in intrastate commerce in accordance with subparagraphs (i)—(iii), the medical examiner's certificate required under 49 CFR 391.43 (relating to medical examination; certificate of physical examination) must display the statement ''Medically qualified to operate in intrastate commerce only.''

 (9) 49 CFR 391.11(b)(1) is deleted.

 (10) 49 CFR 391.47(e) (relating to resolution of conflicts of medical evaluation) is modified to reference Chapter 491 (relating to administrative practice and procedure) instead of § 386.13(a).

 (11) 49 CFR 391.47(f) is modified to read as follows:

 (f) Status of driver. Once a petition for review of a decision of the Director of the Bureau of Driver Licensing is submitted, the driver shall be deemed disqualified until such time as the Pennsylvania Secretary of Transportation makes a determination or orders otherwise.

 (12) 49 CFR 390.27 (relating to locations of motor carrier safety service centers) is amended to read as follows:

390.27 Address of the Medical Unit of the Bureau of Driver Licensing
 The mailing address for the Medical Unit is PENNDOT, Bureau of Driver Licensing, Medical Unit, 1101 South Front Street, 3rd Floor, Harrisburg, PA 17104-2516.

 (13) 49 CFR 385.1(d) (relating to purpose and scope) is modified to read as follows:

 (d) The provisions of this part apply to all motor carriers subject to the requirements of this subchapter, except nonbusiness private motor carriers of passengers and farmers that do not transport hazardous materials of a type or quantity that requires the commercial motor vehicle to be placarded in accordance with 49 CFR 177.823.

 (14) 49 CFR 393.86(b)(1)(IV) (relating to rear impact guards and rear end protection) is amended to add the following sentence: ''This location requirement does not apply to dump trucks owned by or registered to the Commonwealth or a political subdivision of this Commonwealth that is used for roadway construction, maintenance or repair.''

§ 231.9 Adoption of out-of-service criteria.

 The out-of-service criteria contained in the North American Standard Out-of-Service Criteria is incorporated by reference.

§ 231.10 Interpretations of Federal Motor Carrier Safety Regulations.

 The Department will be guided by interpretations of the Federal Motor Carrier Safety Regulations issued by the Federal Motor Carrier Safety Administration for those Parts enumerated in § 231.7 (relating to adoption of portions of 49 CFR by reference). Copies of these interpretations may be obtained by contacting the director, bureau of Highway Safety and Traffic Engineering, 400 North Street, P. O. Box 2047, Harrisburg, PA 17105-2047, or through the Federal Motor Carrier Safety Administration web site: http://www.fmcsa.dot.gov/rules-regulations/administration/fmcsr/fmcsrguide.aspx?section_type=G.

§§ 231.21—231.25 (Reserved).

§ 231.31 (Reserved).

§ 231.32 (Reserved).

§§ 231.41—231.44 (Reserved).

§§ 231.61—231.66 (Reserved).

§ 231.71 (Reserved).

§§ 231.81—231.85 (Reserved).

§§ 231.101—231.111 (Reserved).

§§ 231.121—231.127 (Reserved).

§§ 231.131—231.135 (Reserved).

§§ 231.141—231.144 (Reserved).

§§ 231.151—231.153 (Reserved).

§§ 231.161—231.163 (Reserved).

§§ 231.171—231.181 (Reserved).

§§ 231.201—231.223 (Reserved).

§§ 231.231—231.243 (Reserved).

§§ 231.251—231.254 (Reserved).

§ 231.271 (Reserved).

§ 231.272 (Reserved).

§§ 231.281—231.299 (Reserved).

§ 231.301 (Reserved).

§§ 231.311—231.314 (Reserved).

§ 231.331 (Reserved).

§§ 231.341—231.347 (Reserved).

§§ 231.361—231.367 (Reserved).

§§ 231.381—231.392 (Reserved).

§ 231.411 (Reserved).

§§ 231.451—231.453 (Reserved).

Appendix (A) (Reserved).

Appendix (B) (Reserved).

[Pa.B. Doc. No. 10-716. Filed for public inspection April 23, 2010, 9:00 a.m.]



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