17 NYCRR section 154-1.1.

(f) Incorporation by reference. The provisions of the Code of Federal Regulations which have been incorporated in this Part have been filed in the Office of the Secretary of State of the State of New York, the publications so filed being the books entitled: Code of Federal Regulations, Title 49, Parts 100 to 177, Parts 178 to 199, [Parts 200 to 299, and Parts 300 to 399 revised as of October 1, 2013] and Parts 300 to 399 revised as of October 1, 2016, published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the Libraries of the New York Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Central Permit Office, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20402-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

17 NYCRR section 154-2.1.

(e) Incorporation by reference. The provisions of the Code of Federal Regulations which have been incorporated in this Part have been filed in the Office of the Secretary of State of the State of New York, the publications so filed being the books entitled: Code of Federal Regulations, Title 49, Parts 100 to 177, Parts 178 to 199, [Parts 200 to 299, and Parts 300 to 399 revised as of October 1, 2013] and Parts 300 to 399 revised as of October 1, 2016, published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the Libraries of the New York Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Central Permit Office, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20402-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

17 NYCRR 720.12 Incorporation by reference.

(a) Incorporation by reference. The provisions of the Code of Federal Regulations which have been incorporated in this Part have been filed in the Office of the Secretary of State of the State of New York, the publications so filed being the books entitled: Code of Federal Regulations, Title 49, Parts 100 to 177, Parts 178 to 199, [Parts 200 to 299, and Parts 300 to 399 revised as of October 1, 2013] Parts 300 to 399 revised as of October 1, 2016, published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the Libraries of the New York Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Central Permit Office, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20402-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

17 NYCRR 721.3.

(f) FMCSR. Drivers of passenger carrying vehicles that carry more than 15 passengers, including the driver, or with a gross vehicle weight rating of more than 10,000 pounds shall comply with the applicable Federal Motor Carrier Safety Regulations (FMCSR) of the Federal Highway Administration, including: 49 CFR part 382 - Controlled Substances and Alcohol Use and Testing, part 383 - Commercial Driver's License Standards; Requirements and Penalties, part 390 - Federal Motor Carrier Safety Regulations; General, subdivisions 391.21, except for (b)(12), 391.23, except for (b) and (c), 391.25, 391.27, except for (c) and (d), 391.41, 391.43 and 391.51, except for (b)(3), (b)(7) and (d)(4), of part 391 - Qualifications of Drivers, part 392 Driving of Commercial Motor Vehicles, part 393 - Parts and Accessories Necessary For Safe Operation, part 396 -Inspection, Repair, and Maintenance, except for subdivisions 396.3(a)(2) and (b)(4) and part 397 - Transportation of Hazardous Materials; Driving and Parking Rules. With respect to commercial drivers that are licensed with a passenger endorsement to operate a bus on an intrastate basis only, parts 390 to 397 shall not apply to commercial drivers when operating a school bus, and the adopted portions of part 391 shall only apply to those drivers that received their initial commercial drivers license after the effective date of this regulation. With respect to hours of service of bus drivers, the requirements of section [723.10] 820.6 of this Title shall apply.

17 NYCRR 721.6. Incorporation by reference.

The provisions of the Code of Federal Regulations which have been incorporated by reference in this part have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the books entitled: Code of Federal Regulations, Title 49, 100 to 177, Parts 178 to 199, [Parts 200 to 299, Parts 300 to 399, Parts 400 to 571 and Parts 572 to 999, revised as of October 1, 2013] Parts 300 to 399, revised as of October 1, 2016 published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the Office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the law libraries of the New York State Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Motor Carrier Compliance Bureau, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20402-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

Section 750.3. Minimum levels of financial responsibility for for-hire motor carriers of passengers.

The Commissioner of Transportation adopts part 387 of title 49 of the Code of Federal Regulations with the same force and effect as though herein fully set forth at length for for-hire motor carriers of passengers operating motor vehicles in interstate and foreign commerce. The provisions of the Code of Federal Regulations which have been incorporated by reference in this part have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the book entitled: Code of Federal Regulations, Title 49 Parts 300 to 399, revised as of October 1, 201[3]6, published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the Office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the law libraries of the New York State Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Motor Carrier Compliance Bureau, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20402-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

Section 820.13. Incorporation by reference.

The provisions of the Code of Federal Regulations which have been incorporated by reference in this Part have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the book[s] entitled: Title 49 Code of Federal Regulations Parts 100 to 177, Parts 178 to 199, and Parts 300 to 399, revised as of October 1, 201[3]6, published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the Office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the law libraries of the New York State Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Motor Carrier Compliance Bureau, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20401-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000 with payment by check or with payment by credit card at 866-512-1800. The full text of the Code of Federal Regulations is available in electronic format at www.ecfr.gov.

Section 845.0. Applicability.

(b) Incorporation by reference. The provisions of the Code of Federal Regulations which have been incorporated by reference in this Part have been filed in the Office of the Secretary of State of the State of New York, the publication so filed being the book entitled: Code of Federal Regulations, Title 49, Parts 300 to 399, revised as of October 1, 201[3]6, published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the Office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the law libraries of the New York State Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Motor Carrier Compliance Bureau, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20401-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

Section 855.2. Minimum levels of financial responsibility for interstate motor carriers of property.

Incorporation by reference. The Commissioner of Transportation adopts Part 387 of Title 49 of the Code of Federal Regulations with the same force and effect as though herein fully set forth at length for for-hire motor carriers of property operating motor vehicle in interstate and foreign commerce and motor carriers transporting hazardous materials, hazardous substances, or hazardous wastes in interstate, intrastate, or foreign commerce. The provisions of the Code of Federal Regulations which have been incorporated in this Part have been filed in the Office of the Secretary of State of the State of New York, the publications so filed being the books entitled: Code of Federal Regulations, Title 49, [Parts 100 to 185, Parts 186 to 199, Parts 200 to 299 and Parts 300-399, revised as of October 1, 2013] Parts 100 to 177, Parts 178 to 199, and Parts 300 to 399, revised as of October 1, 2016, published by the Office of the Federal Register, National Archives and Records Administration, as a special edition of the Federal Register. The regulations incorporated by reference may be examined at the office of the Department of State, One Commerce Plaza, 99 Washington Avenue, Albany, NY 12231-0001, at the Libraries of the New York Supreme Court, the Legislative Library, the New York State Department of Transportation, Office of Counsel or Central Permit Office, 50 Wolf Road, Albany, NY 12232. They may [also] be purchased [from the Superintendent of Documents, Government Printing Office, Washington, DC 20401-0001.] by mail from the US Government Printing Office, New Orders, P.O. Box 979050, St. Louis, MO 63197-9000.

The New York State Department of Transportation (NYSDOT) in partnership with the New York State Police Commercial Vehicle Enforcement personnel, engages in commercial motor vehicle enforcement activities under the federal Motor Carrier Safety Assistance Program (MCSAP), the regulatory guidelines for which are published in 49 CFR Part 350. MCSAP is a grant program that provides federal financial assistance to states to reduce the number and severity of accidents and hazardous materials incidents involving commercial motor vehicles. The Federal Motor Carrier Safety Administration sets the conditions for participation by states and local jurisdictions and promotes the adoption and uniform enforcement of safety rules, regulations, and standards compatible with the federal motor carrier safety regulations and federal hazardous material regulations for both interstate and intrastate motor carriers and drivers. Per 49 USCS section 31102, the goal is to ensure that the Secretary, States, local governments, other political jurisdictions, federally recognized Indian tribes, and other persons work in partnership to establish programs to improve motor carrier, commercial motor vehicle, and driver safety to support a safe and efficient surface transportation system by, among other things, adopting and enforcing effective motor carrier, commercial motor vehicle, and driver safety regulations and practices consistent with federal requirements. Pursuant to implementation of said goal under 49 USCS section 31136, the Secretary of Transportation shall adopt regulations on commercial motor vehicle safety. At a minimum, the regulations shall ensure the responsibilities imposed on operators of commercial motor vehicles do not impair their ability to operate the vehicles safely so that the operation of commercial motor vehicles does not have a deleterious effect on the physical condition of the operators.

Per 49 CFR 350.355, FMCSA may initiate a proceeding to withdraw Plan approval or withhold MCSAP funds in accordance with 49 CFR 320.215 under certain circumstances, one of which occurs when a State fails to adopt a new federal motor carrier safety regulation (FMCSR) or hazardous material regulation (HMR) or an amendment to an existing FMCSR or HMR within 3 years of its effective date. NYSDOT last incorporated such federally consistent standards in January 2015. Since then, new rules have been put into effect regarding Electronic Logging Devices (ELD), which function to document hours of service compliance on commercial vehicle operators. A component of said regulations implemented by 49 CFR Part 395 under the statutory authority of 49 USCS section 31137 mandates ELD requirements that a commercial motor vehicle involved in interstate commerce and operated by a driver subject to the hours of service and the record of duty status requirements be equipped with an electronic logging device to improve compliance by an operator of a vehicle with hours of service regulations prescribed by the Secretary; and that in general, such regulations shall allow law enforcement to access the data contained in the device during a road side inspection via a secure process for standardized data transfer and transportability for said law enforcement officers. Per 49 USCS section 31141(c), states may enforce regulations with the same effect and 17 NYCRR 820.6 makes 49 CFR 395 applicable to all motor carriers and drivers operating intrastate, with limited enumerated exceptions. Per 49 USCS section 31142(d), states are not prohibited from making random inspections of commercial motor vehicles to confirm compliance to operate within the mandatory prescriptions of MCSAP.

Per the preceding, NYSDOT has determined that no person is likely to object to the amendment of 17 NYCRR parts as herein proposed, as pursuant to SAPA section 102(11)(b), the rulemaking conforms to non-discretionary statutory provisions in Transportation Law Article 9-A and 49 USCS sections 31136 through 31142. The purpose of this rulemaking is to update Title 49 CFR regulations which are incorporated by reference into Title 17 NYCRR to the 10/1/2016 Title 49 CFR edition. This rulemaking does not represent a change in NYSDOT policy or practice, nor does it impose significant burdens on commercial motor vehicle carriers and drivers.

1. Nature of impact: The proposed rule changes are advanced periodically to retain consistency of Title 17 NYCRR with Title 49 CFR provisions related to safe operation of commercial motor vehicles, most of which are incorporated by reference. Since the Department last adopted such updates by incorporation of the 10/1/2013 edition of CFR safety provisions in January 2015, commercial motor carriers subject to hours of service (HOS) requirements have been required under new federal mandates to transition from paper logbooks to electronic logging devices (ELD) to document compliance with limitations on hours behind the wheel, termed “record of duty status” (RODS). Said federal regulations were adopted with a compliance date of December 18, 2017 in 80 FR 78292. The present rule changes serve to capture that material by incorporation and are not expected to have a significant impact on jobs; the associated New York State Department of Transportation (NYSDOT) enforcement activity will be consistent with past practice.

2. Categories and numbers affected: Federal rules except limited numbers of commercial motor carriers from compliance with ELD; most carriers whose drivers currently maintain paper logbooks are required to transition to ELD and those excepted must continue to maintain paper logbooks if required to document RODS. Exclusion of small businesses was considered but ultimately rejected by FMCSA as inconsistent with the federal statutory framework under which rulemaking is undertaken (80 FR 78292, *78313). The sweep of the ELD compliance regulations is comprehensive.

3. Regions of adverse impact: Inspections and reviews are conducted pursuant to Department policy and there is no variance in the methodology across regions. No adverse impact on jobs in any particular region is anticipated.

4. Minimizing adverse impact: Cost estimates for compliance with the ELD mandate vary depending on the number of vehicles a carrier has in operation; larger carriers are expected to enjoy significant cost savings, whereas smaller carriers and single operators may see modest cost increases of a few hundred dollars per vehicle, which will evaporate over time as the ELD becomes standard equipment in newer model commercial vehicles and such vehicles replace older ones in the operator’s fleets. FMCSA determined that time savings to drivers and carriers from filling out, submitting, and handling paper can exceed the annualized costs of equipping and maintaining ELD; the few hundred dollars of cost increases that may occur in certain cases were not considered to represent a significant impact. Business case studies performed by FMCSA following the implementation of electronic management systems consistently revealed the cost of compliance management, including truck mounted data terminal hardware, to be 30% lower than manual compliance management procedures used for paper logs (80 FR 78292, *78344).

Title 17 NYCRR regulations must remain consistent with the CFR, per 49 USCS section 31141. As such, NYSDOT reviews and inspections are performed using the standards that are found in the CFR regulations incorporated by reference in 17 NYCRR. Neither the frequency of inspections nor the basis for NYSDOT enforcement action is expected to change in any way post adoption of the instance rulemaking, so categories and numbers affected remain status quo. The purpose of performing motor carrier enforcement activities is the advancement of public safety through verification of compliance with state law and regulation pertaining to motor carrier safety; consequently, there are no adverse impacts.