Rule2021-13888
General Technical, Organizational, Conforming, and Correcting Amendments to the Federal Motor Carrier Safety Regulations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 7, 2021
Effective
July 7, 2021
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA amends its regulations by making technical corrections throughout the Federal Motor Carrier Safety Regulations (FMCSRs). The Agency makes minor changes to correct inadvertent errors and omissions, remove or update obsolete references, and improve the clarity and consistency of certain regulatory provisions. The Agency also makes nondiscretionary, ministerial changes that are statutorily mandated and changes that merely align regulatory requirements with the underlying statutory authority. Finally, this rule contains two minor changes to FMCSA's rules of agency procedure or practice that relate to separation of functions and allowing FMCSA and State personnel to conduct off-site compliance reviews of motor carriers following the same safety fitness determination criteria used in on-site compliance reviews.
Full Text
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<title>Federal Register, Volume 86 Issue 127 (Wednesday, July 7, 2021)</title>
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[Federal Register Volume 86, Number 127 (Wednesday, July 7, 2021)]
[Rules and Regulations]
[Pages 35633-35653]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-13888]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 381, 382, 383, 384, 385, 390, and 391
[Docket No. FMCSA-2020-0135]
RIN 2126-AC33
General Technical, Organizational, Conforming, and Correcting
Amendments to the Federal Motor Carrier Safety Regulations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FMCSA amends its regulations by making technical corrections
throughout the Federal Motor Carrier Safety Regulations (FMCSRs). The
Agency makes minor changes to correct inadvertent errors and omissions,
remove or update obsolete references, and improve the clarity and
consistency of certain regulatory provisions. The Agency also makes
nondiscretionary, ministerial changes that are statutorily mandated and
changes that merely align regulatory requirements with the underlying
statutory authority. Finally, this rule contains two minor changes to
FMCSA's rules of agency procedure or practice that relate to separation
of functions and allowing FMCSA and State personnel to conduct off-site
compliance reviews of motor carriers following the same safety fitness
determination criteria used in on-site compliance reviews.
DATES: This final rule is effective July 7, 2021, except for amendatory
instruction 31 which is effective September 7, 2021.
FOR FURTHER INFORMATION CONTACT: Mr. Nicholas Warren, Regulatory
Development Division, Office of Policy, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001;
(202) 366-6124; <a href="/cdn-cgi/l/email-protection#305e5953585f5c51431e47514242555e70545f441e575f46"><span class="__cf_email__" data-cfemail="2a4443494245464b59045d4b58584f446a4e455e044d455c">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Legal Basis for the Rulemaking
Congress delegated certain powers to regulate interstate commerce
to the United States Department of Transportation (DOT or Department)
in numerous pieces of legislation, most notably in section 6 of the
Department of Transportation Act (DOT Act) (Pub. L. 89-670, 80 Stat.
931, 937, Oct. 15, 1966). Section 6 of the DOT Act transferred to the
Department the authority of the former Interstate Commerce Commission
(ICC) to regulate the qualifications and maximum hours of service of
employees, the safety of operations, and the equipment of motor
carriers in interstate commerce (80 Stat. 939). This authority, first
granted to the ICC in the Motor Carrier Act of 1935 (Pub. L. 74-255, 49
Stat. 543, Aug. 9, 1935), now appears in 49 U.S.C. chapter 315. The
regulations issued under this (and subsequently enacted) authority
became known as the FMCSRs, codified at 49 CFR parts 350-399. The
administrative powers to enforce chapter 315 (codified in 49 U.S.C.
chapter 5) were also transferred from the ICC to the DOT in 1966, and
assigned first to the Federal Highway Administration (FHWA) and then to
FMCSA. The FMCSA Administrator has been delegated authority under 49
CFR 1.87 to carry out the motor carrier functions vested in the
Secretary of Transportation.
Between 1984 and 1999, several statutes added to FHWA's authority.
Various statutes authorize the enforcement of the FMCSRs, the Hazardous
Materials Regulations, and the Commercial Regulations, and provide both
civil and criminal penalties for violations of these requirements.
These statutes include the Motor Carrier Safety Act of 1984 (Pub. L.
98-554, Title II, 98 Stat. 2832, Oct. 30, 1984), codified at 49 U.S.C.
chapter 311, subchapter III; the Commercial Motor Vehicle Safety Act of
1986 (Pub. L. 99-570, Title XII, 100 Stat. 3207-170, Oct. 27, 1986),
codified at 49 U.S.C. chapter 313; the Hazardous Materials
Transportation Uniform Safety Act of 1990, as amended (Pub. L. 101-615,
104 Stat. 3244, Nov. 16, 1990), codified at 49 U.S.C. chapter 51; the
Omnibus Transportation Employee Testing Act of 1991 (Pub. L. 102-143,
Title V, 105 Stat. 917, 952, Oct. 28, 1991), codified at 49 U.S.C.
31306; and the ICC Termination Act of 1995 (Pub. L. 104-88, 109 Stat.
803, Dec. 29, 1995), codified at 49 U.S.C. chapters 131-149.
The Motor Carrier Safety Improvement Act of 1999 (Pub. L. 106-159,
113 Stat. 1748, Dec. 9, 1999) established FMCSA as a new operating
administration within DOT, effective January 1, 2000. The motor carrier
safety responsibilities previously assigned to both the ICC and FHWA
are now assigned to FMCSA.
Congress expanded, modified, and amended FMCSA's authority in the
Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001 (Pub. L. 107-
56, 115 Stat. 272, Oct. 26, 2001); the Safe, Accountable, Flexible,
Efficient Transportation Equity
[[Page 35634]]
Act: A Legacy for Users (SAFETEA-LU) (Pub. L. 109-59, 119 Stat. 1144,
Aug. 10, 2005); the SAFETEA-LU Technical Corrections Act of 2008 (Pub.
L. 110-244, 122 Stat. 1572, June 6, 2008); the Moving Ahead for
Progress in the 21st Century Act (MAP-21) (Pub. L. 112-141, 126 Stat.
405, July 6, 2012); and the Fixing America's Surface Transportation Act
(Pub. L. 114-94, 129 Stat. 1312, Dec. 4, 2015).
The specific regulations amended by this rule are based on the
statutes detailed above. Generally, the legal authority for each of
those provisions was explained when the requirement was originally
adopted and is noted at the beginning of each part in title 49 of the
Code of Federal Regulations.
The Administrative Procedure Act (APA) specifically provides
exceptions to its notice and comment rulemaking procedures when an
agency finds there is good cause to dispense with them, and
incorporates the finding, and a brief statement of reasons therefore,
in the rules issued (5 U.S.C. 553(b)(3)(B)). Good cause exists when an
agency determines that notice and public comment procedures are
impractical, unnecessary, or contrary to the public interest. The
amendments made in this final rule primarily correct inadvertent errors
and omissions, remove or update obsolete references, and make minor
language changes to improve clarity and consistency. Some changes are
statutorily mandated or relate to previous changes that were
statutorily mandated. In accommodating those changes, the Agency is
performing nondiscretionary, ministerial acts. Other changes merely
align regulatory requirements with the underlying statutory authority.
The technical amendments do not impose any material new requirements or
increase compliance obligations. In addition, the amendments removing
the word ``on-site'' from the definitions of Compliance review and
Roadability review in Sec. 385.3 recognize the technological advances
that allow FMCSA to perform the same investigative functions remotely
in some cases that it could perform previously only by in-person
reviews of the motor carrier's files. The regulatory standards are not
changing as a result of this minor procedural adjustment. Moreover, the
APA provides an additional exception to its notice and comment
rulemaking procedures for ``rules of agency organization, procedure, or
practice'' (5 U.S.C. 553(b)(3)(A)). For these reasons, FMCSA finds good
cause that notice and public comment on this final rule are
unnecessary.
The amendment adding a separation of functions provision in new
Sec. 385.21 also concerns the APA exception for ``rules of agency
organization, procedure, or practice.'' The amendment is, therefore,
excepted from the notice and public comment requirements.
The APA also allows agencies to make rules effective immediately
with good cause (5 U.S.C. 553(d)(3)), instead of requiring publication
30 days prior to the effective date. For the reasons already stated,
FMCSA finds there is good cause for this rule to be effective
immediately, except as noted in amendatory instruction 31, concerning
the revised Medical Examination Report Form, MCSA-5875, in Sec.
391.43(f).
The Agency is aware of the regulatory requirements concerning
public participation in FMCSA rulemaking (49 U.S.C. 31136(g)). These
requirements pertain to certain major rules,\1\ but, because this final
rule is not a major rule, they are not applicable.
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\1\ A ``major rule'' means any rule that the Administrator of
the Office of Information and Regulatory Affairs of the Office of
Management and Budget finds has resulted in or is likely to result
in (a) an annual effect on the economy of $100 million or more; (b)
a major increase in costs or prices for consumers, individual
industries, Federal agencies, State agencies, local government
agencies, or geographic regions; or (c) significant adverse effects
on competition, employment, investment, productivity, innovation, or
on the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets (5 U.S.C.
804(2)).
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II. Section-by-Section Analysis
This section-by-section analysis describes the changes to the
regulatory text in numerical order.
A. Section 381.110 What definitions are applicable to this part?
FMCSA adds parts 380 and 384 to the definition of FMCSRs in Sec.
381.110. Through this amendment, in conjunction with the following
amendments to Sec. Sec. 381.200, 381.300, and 381.400, FMCSA adds
parts 380 and 384 to the list of parts and sections of the FMCSRs from
which, pursuant to part 381, FMCSA may grant a waiver, an exemption, or
an exemption for a pilot program. This change is in accordance with 49
U.S.C. 31136(e) and 49 U.S.C. 31315(a), (b), and (c), which provide for
waivers and exemptions from regulations prescribed under 49 U.S.C.
31136 and chapter 313, and for pilot programs, respectively. As all
regulations set forth in parts 380 and 384 were promulgated under that
authority, this change merely aligns the regulatory requirements in
part 381 with the authority set forth in those statutes. FMCSA also
changes the punctuation for the list in the parenthetical text.
B. Section 381.200 What is a waiver?
In Sec. 381.200(d), FMCSA adds parts 380 and 384 to the FMCSRs
from which entities and individuals can request waivers pursuant to
part 381, subpart B. This change is authorized as stated above in
section II.A.
C. Section 381.300 What is an exemption?
In Sec. 381.300(c), FMCSA adds parts 380 and 384 to the FMCSRs
from which entities and individuals can request exemptions pursuant to
part 381, subpart C. This change is authorized as stated above in
section II.A.
D. Section 381.400 What is a pilot program?
In Sec. 381.400(f), FMCSA adds parts 380 and 384 to the FMCSRs
from which entities and individuals can request exemptions for pilot
programs pursuant to part 381, subpart D. This change is authorized as
stated above in section II.A.
E. Section 382.103 Applicability
In Sec. 382.103(d)(1), FMCSA adds the word ``only'' after
``comply'' to clarify that drivers who perform only Federal Transit
Administration (FTA)-regulated safety-sensitive functions are exempt
from part 382, as are their employers. By contrast, FTA-regulated
entities that employ drivers who also perform FMCSA-regulated safety-
sensitive functions must comply with the relevant testing requirements
of part 382. FMCSA makes this change, which reflects the purpose and
intent of Sec. 382.103(d)(1), as stated above, to improve clarity.
F. Section 382.121 Employee Admission of Alcohol and Controlled
Substances Use
FMCSA inserts ``non-DOT'' before ``return to duty'' in paragraphs
(b)(4)(i) and (ii) of Sec. 382.121. Paragraph (a) provides that
employees who self-admit alcohol misuse or controlled substances use to
their employers are not subject to obtaining referral, evaluation, and
treatment under parts 382 and 40. The changes in paragraph (b)(4)
clarify that the ``return to duty'' (RTD) testing referenced is not the
DOT testing required under parts 382 and 40. This clarification is
intended to remind employers that, consistent with the purpose of this
section, results of non-DOT RTD tests conducted in accordance with
paragraph (b)(4) should not be reported to the Commercial Driver's
License Drug and Alcohol Clearinghouse (Clearinghouse), an electronic
database that contains driver-specific drug and alcohol program
[[Page 35635]]
violation information. The changes also provide consistency with the
reference in paragraph (b)(5) to ``non-DOT follow-up testing.''
G. Section 382.123 Driver identification
In Sec. 382.123(b)(2), FMCSA corrects a reference to the Alcohol
Testing Form (ATF) (the subject of paragraph (a)), instead of the
Federal Drug Testing Custody and Control Form (CCF) (the subject of
paragraph (b)). The heading of Sec. 382.123(b) (``Identification
information on the Federal Drug Testing Custody and Control Form
(CCF)'') indicates this paragraph relates to the information required
to be provided on the CCF.
H. Section 382.701 Drug and Alcohol Clearinghouse
Subpart G of part 382, beginning with Sec. 382.701, provides
requirements and procedures for implementation of the Clearinghouse. In
Sec. 382.701, FMCSA amends paragraph (d) by adding after the first use
of the word ``driver'' the words ``the employer employs or intends to
hire or use.'' The sentence now reads, in part, ``No employer may allow
a driver the employer employs or intends to hire or use to perform any
safety-sensitive function if the results of a Clearinghouse query
demonstrate that the driver has a verified positive, adulterated, or
substituted controlled substances test result . . . .''
The purpose of the amendment is to align Sec. 382.701(d) with 49
U.S.C. 31306a, which prohibits employers from using current and
prospective employee-drivers to operate a commercial motor vehicle
(CMV) if a query of the Clearinghouse shows the driver has violated the
drug and alcohol testing program requirements and has not completed the
return-to-duty process. In this regard, section 31306a(m)(5) defines
``employer'' as ``a person or entity employing, or seeking to employ, 1
or more employees (including an individual who is self-employed) to be
commercial motor vehicle operators.'' As currently drafted, Sec.
382.701(d) may imply that the prohibition against permitting a driver
with unresolved drug and alcohol testing program violations to perform
safety-sensitive functions applies to current, and not prospective,
employee-drivers. This amendment makes clear that, consistent with the
statute, the prohibition applies to employers of current and
prospective drivers. In addition, the amendment conforms Sec.
382.701(d) to Sec. 382.301(a) (``Pre-employment testing''), which
states, in part, ``No employer shall allow a driver, who the employer
intends to hire or use, to perform safety-sensitive functions unless
the employer has received a controlled substances test result from the
[Medical Review Officer (MRO)] or [Consortium/Third party Administrator
(C/TPA)] indicating a verified negative test result for that driver.''
I. Section 382.705 Reporting to the Clearinghouse
FMCSA amends three paragraphs of Sec. 382.705(b). In paragraph
(b)(3)(iii), FMCSA replaces the word ``designated'' with the phrase
``authorized to act'' for clarity. This clarifying change avoids
potential confusion caused by use of the word ``designate'' elsewhere
in the section. In paragraph (b)(6) of that same section, ``designate''
pertains to the designation of a C/TPA for Clearinghouse reporting
purposes. By substituting ``authorized to act'' for ``designate'' in
paragraph (b)(3)(iii), FMCSA makes clear that, as intended, the C/TPA
must have been acting with actual authority as a service agent when the
refusal occurred; whether the C/TPA is ``designated'' by the employer,
as that term is used in paragraph (b)(6), when the refusal occurs, is
not relevant.
In paragraphs (b)(3)(iv) and (b)(5)(vii), FMCSA adds ``(if
applicable)'' to the end of each paragraph. This change clarifies that
when reporting a ``failure to appear'' refusal under paragraph (b)(3)
or an ``actual knowledge'' violation under paragraphs (b)(4) and (5),
the requirement that employers submit documentation showing that the
driver was provided with all the information reported to the
Clearinghouse does not apply if the driver is registered in the
Clearinghouse. Drivers who are registered in the Clearinghouse have
electronic access to the information and documents referenced in
paragraphs (b)(3) and (5), thereby making the employer's separate
delivery of the documentation to the driver unnecessary.
J. Section 382.717 Procedures for Correcting Certain Information in the
Database
In the heading of this section, FMCSA adds the word ``certain''
after the word ``correcting'' to reflect more accurately the limited
scope of this section, which sets forth procedures drivers may use to
request correction or removal of certain types of information about
them that exists in the Clearinghouse. In the heading of paragraph (a),
FMCSA replaces the word ``inaccurately'' with ``incorrectly.'' The
Agency also makes clarifying changes to Sec. 382.717(a)(1) to ensure
that drivers understand the narrow basis for the correction or removal
of their Clearinghouse records permitted under this section. These
clarifications are consistent with the limited scope of Sec. 382.717,
as discussed in the preamble to the December 2016 final rule
establishing the Clearinghouse requirements (81 FR 87686, 87715, Dec.
5, 2016), the Privacy Impact Assessment for the Clearinghouse, and the
System of Records Notice for the Clearinghouse (84 FR 56521, 56526,
Oct. 22, 2019). As explained collectively therein, the correction
processes in Sec. 382.717 apply only to administrative errors or an
employer's failure to comply with documentation requirements for
reporting certain test refusal and actual knowledge violations, as set
forth in Sec. 382.703, paragraphs (b)(3) and (5); drivers may not
contest the accuracy of drug and alcohol program violation information,
such as test results or refusals.
K. Section 382.725 Access by State Licensing Authorities
In Sec. 382.725(c), FMCSA inserts the word ``commercial'' after
``chief'' in the second sentence for consistency with use of the term
``chief commercial driver's licensing official'' in that section. This
amendment also helps to avoid confusion concerning the existing
language, which may appear to introduce another category of licensing
official.
L. Section 383.3 Applicability
In Sec. 383.3(c), FMCSA corrects a typographical error by adding a
missing ``s'' to the word ``member,'' in the phrase ``member of the
national guard on active duty,'' to improve readability.
M. Section 383.5 Definitions
At the end of paragraph (1) in the definition of Commerce in Sec.
383.5, FMCSA changes the conjunctive ``and'' to ``or'' to be consistent
with the definition of Commerce in 49 U.S.C. 31301(2). This action
updates language that has been in Sec. 383.5 since FHWA amended the
FMCSRs to implement the requirements of the Commercial Motor Vehicle
Safety Act of 1986 on June 1, 1987 (52 FR 20574, 20587). Paragraph (2)
of 49 U.S.C. 31301 provides that ``commerce'' means trade, traffic, and
transportation in the United States between a place in a State and a
place outside that State (including a place outside the United States);
``or'' in the United States that affects trade, traffic, and
transportation between a place in a State and a place outside that
State. This definition applies to 49 U.S.C. 31302 (``Commercial
driver's license requirement''), including the definition of Commerce
in Sec. 383.5 of 49 CFR part 383 (``Commercial driver's license
[[Page 35636]]
standards; requirements and penalties''). To ensure consistency with
the applicable statutory authority, the conjunction ``and'' is replaced
with ``or'' in Sec. 383.5. The Agency changes the punctuation before
the conjunction ``or'' from a comma to a semicolon. FMCSA adds a comma
after the word ``traffic'' in paragraph (1) to have consistent
punctuation with paragraph (2).
N. Section 383.51 Disqualification of Drivers
FMCSA adds an additional exclusion to entry (6) in Table 1 to Sec.
383.51 (which is found in paragraph (b) of that section) to make clear
there is no enforcement discretion regarding the period of
disqualification for human trafficking offenses. FMCSA added the human
trafficking disqualification in entry (10) of Table 1 in a final rule
published July 23, 2019 (84 FR 35335, 35338). The addition requires the
State to disqualify a commercial driver's license (CDL) holder for life
for a human trafficking conviction. Entry (10) reflects the statutory
mandate that prohibits an individual from operating a CMV for life if
the individual uses a CMV in the commission of a felony involving an
act or practice of severe forms of trafficking in persons, as defined
and described in 22 U.S.C. 7102(11). As amended, entry (6) excludes
both a felony described in paragraph (b)(9) of Table 1 (entry (9)) and
a felony described in paragraph (b)(10) of Table 1 (entry (10)).
O. Section 383.9 Commercial Motor Vehicle Groups
FMCSA updates the title of Figure 1 to Sec. 383.91 from ``VEHICLE
GROUPS AS ESTABLISHED BY FHWA (SECTION 383.91)'' to simply ``VEHICLE
GROUPS (SECTION 383.91).'' This amendment eliminates the obsolete
reference to FHWA, FMCSA's predecessor agency.
P. Section 384.401 Withholding of Funds Based on Noncompliance
In Sec. 384.401, FMCSA revises the cross-references to 23 U.S.C.
104(b) to reflect changes to 49 U.S.C. 31314(c), the statutory
provision that provides the cross-references in Sec. 384.401. Section
1404(j) of MAP-21 (Pub. L. 112-141, 126 Stat. 405, 559, July 6, 2012)
revised 49 U.S.C. 31314(c), effective October 1, 2011. Section 384.401
is no longer consistent with the underlying statutory authority in 49
U.S.C. 31314(c). To conform Sec. 384.401 to 49 U.S.C. 31314(c), FMCSA
changes the cross-references in paragraphs (a) and (b) of Sec. 384.401
from ``each of sections 104(b)(1), (b)(3), and (b)(4) of title 23
U.S.C.'' to ``23 U.S.C. 104(b)(1) and (2).''
Q. Section 385.3 Definitions and Acronyms
FMCSA removes the word ``on-site'' from the definition of
Compliance review in paragraph (1) of the definition of Reviews in
Sec. 385.3. This amendment recognizes the technological advances that
allow FMCSA to perform the compliance review remotely in some cases.
This amendment does not alter the Safety Fitness Rating Methodology
(SFRM) in part 385, appendix B, nor does it eliminate the ability for
FMCSA to conduct onsite examinations. From the point of view of the
regulated entity, the same safety performance metrics are being
evaluated, so there is no change. This amendment, however, clarifies
that a safety investigator may, in some cases, perform all the
investigative functions of the compliance review remotely when the
motor carrier uploads its business records for review to FMCSA's online
system and the investigator conducts subsequent discussions with motor
carrier officials and employees remotely.
Further, FMCSA notes that this amendment also does not alter in any
way the requirements of section 350 of the 2002 DOT Appropriations Act
(Pub. L. 107-87, 115 Stat. 833, 864, Dec. 18, 2001 (49 U.S.C. 13902
note)), with which FMCSA will continue to comply, that certain
compliance reviews under 49 CFR part 385, subpart B, as to Mexico-
domiciled carriers, be conducted onsite.
FHWA first published the definition of Compliance review in 1988
(53 FR 50961, 50968, Dec. 19, 1988). The compliance review process at
that time did not use a published methodology. In 1997, FHWA published
the SFRM (62 FR 60035, Nov. 6, 1997) to codify a more objective safety
rating process for the compliance review (62 FR 60037). Under the SFRM,
safety investigators sample a carrier's records and document violations
of acute regulations and patterns of violations of critical regulations
to complete the compliance review (Sec. 385.9; appendix B to part
385). Section I (``Source of Data for Rating Methodology'') of appendix
B to part 385 states that the sources of data for the compliance
review's ``in-depth examination of a motor carrier's operations'' are
``[d]ocuments such as those contained in driver qualification files,
records of duty status, vehicle maintenance records, and other
records.'' The definition of Compliance review lists these records,
along with other objective safety and transportation records, as
examples of what a safety investigator would be reviewing during a
compliance review. Until relatively recently, safety investigators had
to visit the motor carrier's principal place of business to review
these records. FMCSA is now able to ask carriers to upload their
records to FMCSA's online system, making an ``on-site'' visit
unnecessary in certain compliance reviews.
FMCSA also removes the word ``on-site'' from the definition of
Roadability review in paragraph (4) of the definition of Reviews in
Sec. 385.3. FMCSA makes this amendment to provide consistency between
the definitions of Compliance review and Roadability review. The
roadability review program was modeled after FMCSA's compliance review
program (71 FR 76796, 76798, Dec. 21, 2006). This amendment recognizes
that the same technological advances that allow FMCSA to perform the
compliance review remotely in some cases also allow FMCSA to perform
the roadability review remotely in some cases.
In addition to the above amendments, FMCSA adds a missing
apostrophe to the phrase ``commercial driver's license'' in the
definition of Compliance review.
R. Section 385.21 Separation of Functions
In new Sec. 385.21, FMCSA adds a separation of functions provision
that applies to the various administrative review proceedings under
part 385. This amendment clarifies that FMCSA applies a separation of
functions between Agency employees engaged in the performance of
investigative or prosecutorial functions and those who participate or
advise in the decision in administrative review proceedings under part
385. This new section merely codifies the separation of functions that
has, in fact, been maintained in FMCSA since the Agency was created in
2000. FMCSA adopts language for this section that is consistent with
DOT policy and the requirements for adjudications in 5 U.S.C. 554. It
also is similar to the language in Sec. 386.3, which is the separation
of functions provision applicable to administrative reviews of proposed
civil penalties.
S. Appendix B to Part 385--Explanation of Safety Rating Process
FMCSA amends appendix B to part 385 to conform to a 2013 revision
of the standard in Sec. 383.37 from ``knowingly'' to ``knows or should
reasonably know'' (78 FR 60226, 60227, 60231, Oct. 1, 2013).
Specifically, FMCSA amends the entries for Sec. 383.37(a) through (c)
on the ``List of Acute and Critical Regulations'' found in Section VII
of appendix B to part 385. In each of those entries,
[[Page 35637]]
FMCSA deletes the word ``knowingly'' at the beginning of the sentence
and makes minor modifications to the sentence to ensure that the
appendix entries more closely follow the language of the regulatory
text to which they refer (e.g., by using the term ``driver'' instead of
``employee'' in all three entries and adding the term ``CLP'' and the
acronym ``CDL'' in the entries for paragraphs (b) and (c)) and to
better accommodate the phrase ``knows or reasonably should have known''
into the entries.
T. Sections 390.5 (Suspended) and 390.5T Definitions
In Sec. Sec. 390.5 (suspended) and 390.5T, FMCSA clarifies the
meaning of Covered farm vehicle (CFV) to include combination vehicles,
which are eligible for the CFV exemption, but not explicitly identified
in the statutory definition in section 32934 of MAP-21 (Pub. L. 112-
141, 126 Stat. 405, 830-31, July 6, 2012 (49 U.S.C. 31136 note)). The
statutory definition does, however, explicitly include ``articulated''
vehicles. Combination vehicles are considered ``articulated'' because
they combine a tractor with one or more trailers at one or more points
of articulation (e.g., for a single trailer, the point of articulation
is the trailer kingpin that fits into the fifth wheel mounted on the
chassis of the tractor behind the cab (or sleeper berth, if so
equipped)). Because the terms ``gross vehicle weight rating'' and
``gross vehicle weight'' are universally applied to single-unit (i.e.,
non-combination) vehicles, paragraphs (2)(i) and (ii) appear to
conflict with the provision in section 32934(c)(1) explicitly allowing
the CFV exemption for articulated (including combination) vehicles.
Therefore, in paragraphs (2)(i) and (ii) of the definition, FMCSA adds
the parallel phrases applicable to combination vehicles (``gross
combination weight rating'' and ``gross combination weight'') to
effectuate the intent of Congress expressed in section 32934(c)(1) to
give operators of combination (i.e., articulated) vehicles the benefit
of the CFV exemption.
On January 17, 2017, FMCSA suspended certain regulations relating
to the electronic Unified Registration System and delayed their
effective date indefinitely (82 FR 5292). The suspended regulations
were replaced by temporary provisions that contain the requirements in
place on January 13, 2017. Section 390.5 was one of the sections
suspended and Sec. 390.5T, which is currently in effect, was added (82
FR 5311).
U. Section 391.41(b) Physical Qualifications for Drivers
In Sec. 391.41(b), FMCSA corrects the punctuation by changing the
ending punctuation in paragraphs (b)(2)(ii) and (b)(4) and (b)(11) from
periods to semicolons. In paragraph (b)(12)(i), the Agency changes the
ending punctuation from a period to a semicolon and inserts the
conjunction ``or.'' In paragraph (b)(12)(ii), the Agency changes the
ending punctuation from a period to a semicolon and inserts the
conjunction ``and.'' These changes make the punctuation in the section
consistent and grammatically correct.
V. Section 391.43 Medical Examination; Certificate of Physical
Examination
FMCSA amends three paragraphs of Sec. 391.43. In paragraph (e),
FMCSA removes the word ``endocrinologist'' from the first sentence
because it is no longer relevant to the requirements of Sec. 391.64,
referenced in this paragraph. On September 19, 2018, FMCSA amended its
physical qualification standards to allow individuals with stable
insulin regimens and properly controlled insulin-treated diabetes
mellitus to drive CMVs in interstate commerce if certain requirements
are met (83 FR 47486). The rule also eliminated the diabetes
grandfather provision under Sec. 391.64(a) 1 year after the effective
date of the rule on November 19, 2019 (83 FR 47521). Section 391.64(a)
required an annual examination by an endocrinologist. Because Sec.
391.64(a) was eliminated on November 19, 2019, the reference to the
findings of the annual examination by an endocrinologist is obsolete.
In paragraph (f), FMCSA changes the Medical Examination Report
Form, MCSA-5875, by removing the request for gender information on page
1 in Section 1, pertaining to the personal information provided by the
driver, and removing ``gender'' on page 6 of the instructions to
Section 1. FMCSA makes these changes because it is unnecessary to
collect gender information on the form. In the medical examiner's
attestation for both the Federal and State Medical Examiner
Determination sections (pages 4 and 5 respectively), FMCSA adds a
missing comma after ``that'' to correct punctuation. On page 6 in the
instructions for Section 1 regarding the driver's personal information,
FMCSA removes ``Question:'' prior to the question asking if a medical
certificate has ever been denied or issued for less than two years
because it is unnecessary. In the instructions for both the Federal and
State Medical Examiner Determination sections (pages 8 and 9,
respectively), FMCSA makes changes to the second sentence in the
``Meets standards, but periodic monitoring is required'' paragraph to
correct grammar. FMCSA adds ``for,'' deletes the comma after ``other,''
and puts ``other'' in quotation marks. The sentences read, ``Select the
corresponding time frame that the driver is qualified for, and if
selecting `other' specify the time frame.'' FMCSA also makes minor
formatting changes to correct errors and promote consistency in the
style of bullet points and quotation and apostrophe marks, use of
bolding and italics, and use of a forward slash instead of a comma. Use
of the revised form will become effective 60 days after this rule is
published to provide sufficient time for the public to make any
necessary information technology changes.
In paragraph (g)(4), FMCSA makes minor edits for clarity concerning
the reasons that a medical examiner may find that a determination
should be delayed. Rather than a medical examiner finding that a
determination should be delayed ``pending the receipt of additional
information,'' the text makes clear that the delay may be in order ``to
receive additional information.'' Similarly, rather than finding that a
determination should be delayed ``pending . . . the conduct of further
examination,'' the text makes clear that the delay may be in order ``to
conduct further examination.''
W. Section 391.64 Grandfathering for Certain Drivers Who Participated
in a Vision Waiver Study Program
In Sec. 391.64, FMCSA revises the section heading to remove
references to a diabetes waiver study program. On September 19, 2018,
FMCSA amended its physical qualification standards to allow individuals
with stable insulin regimens and properly controlled insulin-treated
diabetes mellitus to drive CMVs in interstate commerce if certain
requirements are met (83 FR 47486). The rule also eliminated the
diabetes grandfather provision under Sec. 391.64(a) 1 year after the
effective date of the rule on November 19, 2019 (83 FR 47521). Because
Sec. 391.64(a) was eliminated on November 19, 2019, the reference to
the diabetes waiver study program in the section title is obsolete.
[[Page 35638]]
III. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulations
This final rule is not a significant regulatory action under
section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993), Regulatory
Planning and Review, as supplemented by E.O. 13563 (76 FR 3821, Jan.
21, 2011), Improving Regulation and Regulatory Review, and this final
rule does not require an assessment of potential costs and benefits
under section 6(a)(3) of E.O. 12866. Accordingly, the Office of
Management and Budget has not reviewed it under that Order. In
addition, this rule is not significant within the meaning of DOT
regulations (49 CFR 5.13(a)). The amendments made in this final rule
primarily correct inadvertent errors and omissions, remove or update
obsolete references, and make minor language changes to improve clarity
and consistency. Some changes are statutorily mandated or relate to
previous changes that were statutorily mandated. In accommodating those
changes, the Agency is performing nondiscretionary, ministerial acts.
Other changes merely align regulatory requirements with the underlying
statutory authority. Two changes relate to minor amendments to FMCSA's
rules of practice or procedure. None of the changes in this final rule
imposes material new requirements or increases compliance obligations;
therefore, this final rule imposes no new costs and a full regulatory
evaluation is unnecessary.
B. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801-808), the
Office of Information and Regulatory Affairs designated this rule as
not a ``major rule,'' as defined by 5 U.S.C. 804(2).
C. Regulatory Flexibility Act (Small Entities)
Under the Regulatory Flexibility Act of 1980 (5 U.S.C. 601-612),
FMCSA is not required to complete a regulatory flexibility analysis
because, as discussed earlier in the Legal Basis for the Rulemaking
section, this action is not subject to notice and public comment under
section 553(b) of the APA.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857, Mar.
29, 1996), FMCSA wants to assist small entities in understanding this
final rule so they can better evaluate its effects on themselves and
participate in the rulemaking initiative. If the final rule will affect
your small business, organization, or governmental jurisdiction and you
have questions concerning its provisions or options for compliance;
please consult the person listed under the FOR FURTHER INFORMATION
CONTACT section of this final rule.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the Small Business Administration's Small Business and
Agriculture Regulatory Enforcement Ombudsman and the Regional Small
Business Regulatory Fairness Boards. The Ombudsman evaluates these
actions annually and rates each agency's responsiveness to small
business. If you wish to comment on actions by employees of FMCSA, call
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights
of small entities to regulatory enforcement fairness and an explicit
policy against retaliation for exercising these rights.
E. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or Tribal government, in
the aggregate, or by the private sector of $165 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2018 levels) or more in any 1 year. This final rule will not result in
such an expenditure.
F. Paperwork Reduction Act (Collection of Information)
This final rule contains no new information collection requirements
under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
G. E.O. 13132 (Federalism)
A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA has determined that this rule will not have
substantial direct costs on or for States, nor will it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
H. Privacy
The Consolidated Appropriations Act, 2005 (Pub. L. 108-447, 118
Stat. 2809, 3268, Dec. 8, 2004 (5 U.S.C. 552a note)), requires the
Agency to conduct a privacy impact assessment of a regulation that will
affect the privacy of individuals. Because this rule does not require
the collection of personally identifiable information, the Agency is
not required to conduct a privacy impact assessment.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002 (Pub. L. 107-347, sec. 208, 116 Stat.
2899, 2921, Dec. 17, 2002), requires Federal agencies to conduct a
privacy impact assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology will
collect, maintain, or disseminate information as a result of this rule.
Accordingly, FMCSA has not conducted a privacy impact assessment.
I. E.O. 13175 (Indian Tribal Governments)
This rule does not have Tribal implications under E.O. 13175,
Consultation and Coordination with Indian Tribal Governments, because
it does not have a substantial direct effect on one or more Indian
Tribes, on the relationship between the Federal Government and Indian
Tribes, or on the distribution of power and responsibilities between
the Federal Government and Indian Tribes.
J. National Environmental Policy Act of 1969
FMCSA analyzed this rule for the purpose of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680, Mar. 1, 2004),
Appendix 2, paragraphs 6.b and c. These Categorical Exclusions address
minor corrections and regulations concerning internal agency functions,
organization, or personnel administration such as those found in this
rulemaking. Therefore, preparation
[[Page 35639]]
of an environmental assessment or environmental impact statement is not
necessary.
List of Subjects
49 CFR Part 381
Motor carriers.
49 CFR Part 382
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Drug testing, Highway safety, Motor carriers, Penalties, Safety,
Transportation.
49 CFR Part 383
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Drug testing, Highway safety, Motor carriers, Penalties, Safety,
Transportation.
49 CFR Part 384
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
49 CFR Part 385
Administrative practice and procedure, Highway safety,
Incorporation by reference, Mexico, Motor carriers, Motor vehicle
safety, Reporting and recordkeeping requirements.
49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor
vehicle safety, Reporting and recordkeeping requirements.
49 CFR Part 391
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety,
Transportation.
In consideration of the foregoing, FMCSA amends 49 CFR chapter III
as set forth below:
PART 381--WAIVERS, EXEMPTIONS, AND PILOT PROGRAMS
0
1. The authority citation for part 381 continues to read as follows:
Authority: 49 U.S.C. 31136(e) and 31315; and 49 CFR 1.87.
0
2. Amend Sec. 381.110 by revising the definition of FMCSRs to read as
follows:
Sec. 381.110 What definitions are applicable to this part?
* * * * *
FMCSRs means Federal Motor Carrier Safety Regulations (49 CFR parts
380, 382, 383, and 384; 49 CFR 390.19 and 390.21; and 49 CFR parts 391
through 393, 395, 396, and 399).
* * * * *
0
3. Amend Sec. 381.200 by:
0
a. Redesignating paragraphs (d)(3) through (10) as paragraphs (d)(5)
through (12);
0
b. Redesignating paragraphs (d)(1) and (2) as paragraphs (d)(2) and
(3); and
0
c. Adding new paragraphs (d)(1) and (4).
The additions read as follows:
Sec. 381.200 What is a waiver?
* * * * *
(d) * * *
(1) Part 380--Special Training Requirements;
* * * * *
(4) Part 384--State Compliance with Commercial Driver's License
Program;
* * * * *
0
4. Amend Sec. 381.300 by:
0
a. Redesignating paragraphs (c)(3) through (8) as paragraphs (c)(5)
through (10);
0
b. Redesignating paragraphs (c)(1) and (2) as paragraphs (c)(2) and
(3); and
0
c. Adding new paragraphs (c)(1) and (4).
The additions read as follows:
Sec. 381.300 What is an exemption?
* * * * *
(c) * * *
(1) Part 380--Special Training Requirements;
* * * * *
(4) Part 384--State Compliance with Commercial Driver's License
Program;
* * * * *
0
5. Amend Sec. 381.400 by:
0
a. Redesignating paragraphs (f)(3) through (8) as paragraphs (f)(5)
through (10);
0
b. Redesignating paragraphs (f)(1) and (2) as paragraphs (f)(2) and
(3); and
0
c. Adding new paragraphs (f)(1) and (4).
The additions read as follows:
Sec. 381.400 What is a pilot program?
* * * * *
(f) * * *
(1) Part 380--Special Training Requirements;
* * * * *
(4) Part 384--State Compliance with Commercial Driver's License
Program;
* * * * *
PART 382--CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING
0
6. The authority citation for part 382 continues to read as follows:
Authority: 49 U.S.C. 31133, 31136, 31301 et seq., 31502; sec.
32934, Pub. L. 112-141, 126 Stat. 405, 830; and 49 CFR 1.87.
Sec. 382.103 [Amended]
0
7. In Sec. 382.103, add the word ``only'' after the word ``comply'' in
paragraph (d)(1).
0
8. Amend Sec. 382.121 by revising paragraphs (b)(4)(i) and (ii) to
read as follows:
Sec. 382.121 Employee admission of alcohol and controlled substances
use.
* * * * *
(b) * * *
(4) * * *
(i) Prior to the employee participating in a safety sensitive
function, the employee shall undergo a non-DOT return to duty test with
a result indicating an alcohol concentration of less than 0.02; and/or
(ii) Prior to the employee participating in a safety sensitive
function, the employee shall undergo a non-DOT return to duty
controlled substance test with a verified negative test result for
controlled substances use; and
* * * * *
0
9. Amend Sec. 382.123 by revising paragraph (b)(2) to read as follows:
Sec. 382.123 Driver identification.
* * * * *
(b) * * *
(2) The employer's name and other identifying information required
in Step 1, section A of the CCF.
0
10. Amend Sec. 382.701 by revising paragraph (d) introductory text to
read as follows:
Sec. 382.701 Drug and Alcohol Clearinghouse.
* * * * *
(d) Prohibition. No employer may allow a driver the employer
employs or intends to hire or use to perform any safety-sensitive
function if the results of a Clearinghouse query demonstrate that the
driver has a verified positive, adulterated, or substituted controlled
substances test result; has an alcohol confirmation test with a
concentration of 0.04 or higher; has refused to submit to a test in
violation of Sec. 382.211; or that an employer has reported actual
knowledge, as defined at Sec. 382.107, that the driver used alcohol on
duty in violation of Sec. 382.205, used alcohol before duty in
violation of Sec. 382.207, used alcohol following an accident in
violation of Sec. 382.209, or used a controlled substance in violation
of Sec. 382.213, except where a query of the Clearinghouse
demonstrates:
* * * * *
0
11. Amend Sec. 382.705 by revising paragraphs (b)(3)(iii) and (iv) and
(b)(5)(vii) to read as follows:
[[Page 35640]]
Sec. 382.705 Reporting to the Clearinghouse.
* * * * *
(b) * * *
(3) * * *
(iii) Documentation, including, but not limited to, electronic mail
or other correspondence, or an affidavit, showing that the C/TPA
reporting the violation was authorized to act as a service agent for an
employer who employs himself/herself as a driver pursuant to paragraph
(b)(6) of this section when the reported refusal occurred (if
applicable); and
(iv) Documentation, including a certificate of service or other
evidence, showing that the employer provided the employee with all
documentation reported under paragraph (b)(3) of this section (if
applicable).
* * * * *
(5) * * *
(vii) A certificate of service or other evidence showing that the
employer provided the employee with all information reported under
paragraph (b)(4) of this section (if applicable).
* * * * *
0
12. Amend Sec. 382.717 by revising the section and paragraph (a)
headings and paragraph (a)(1) to read as follows:
Sec. 382.717 Procedures for correcting certain information in the
database.
(a) Petitions limited to incorrectly reported information. (1)
Under this section, petitioners may request only that administrative
errors be corrected (e.g., errors in data entry or a duplicate report
of a positive test result); petitioners may not contest the accuracy of
test results, test refusals, or other violation information, under this
section.
* * * * *
0
13. Amend Sec. 382.725 by revising paragraph (c) to read as follows:
Sec. 382.725 Access by State licensing authorities.
* * * * *
(c) The chief commercial driver's licensing official's use of
information received from the Clearinghouse is limited to determining
an individual's qualifications to operate a commercial motor vehicle.
No chief commercial driver's licensing official may divulge or permit
any other person or entity to divulge any information from the
Clearinghouse to any person or entity not directly involved in
determining an individual's qualifications to operate a commercial
motor vehicle.
* * * * *
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
0
14. The authority citation for part 383 is revised to read as follows:
Authority: 49 U.S.C. 521, 31136, 31301 et seq., 31502; secs.
214 and 215, Pub. L. 106-159, 113 Stat. 1748, 1766, 1767; sec.
1012(b), Pub. L. 107-56, 115 Stat. 272, 397 (49 U.S.C. 31305(a)(5));
sec. 4140, Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934, Pub. L.
112-141, 126 Stat. 405, 830; secs. 5401 and 7208, Pub. L. 114-94,
129 Stat. 1312, 1546, 1593 (49 U.S.C. 31305(d)); and 49 CFR 1.87.
0
15. Amend Sec. 383.3 by revising paragraph (c) to read as follows:
Sec. 383.3 Applicability.
* * * * *
(c) Exception for certain military drivers. Each State must exempt
from the requirements of this part individuals who operate CMVs for
military purposes. This exception is applicable to active duty military
personnel; members of the military reserves; members of the national
guard on active duty, including personnel on full-time national guard
duty, personnel on part-time national guard training, and national
guard military technicians (civilians who are required to wear military
uniforms); and active duty U.S. Coast Guard personnel. This exception
is not applicable to U.S. Reserve technicians.
* * * * *
0
16. Amend Sec. 383.5 by revising the introductory text and paragraph
(1) of the definition of Commerce to read as follows:
Sec. 383.5 Definitions.
* * * * *
Commerce means:
(1) Any trade, traffic, or transportation within the jurisdiction
of the United States between a place in a State and a place outside of
such State, including a place outside of the United States; or
* * * * *
0
17. In Sec. 383.51, amend table 1 to Sec. 383.51 in paragraph (b) by
revising entry (6) to read as follows:
Sec. 383.51 Disqualification of drivers.
* * * * *
(b) * * *
Table 1 to Sec. 383.51
--------------------------------------------------------------------------------------------------------------------------------------------------------
For a first For a second
conviction or refusal conviction or refusal For a second
For a first conviction to be tested while to be tested in a conviction or refusal
or refusal to be For a first conviction operating a CMV separate incident of to be tested in a
tested while operating or refusal to be transporting any combination of separate incident of
a CMV, a person tested while operating hazardous materials offenses in this any combination of
If a driver operates a motor required to have a CLP a non-CMV, a CLP or as defined in Sec. Table while operating offenses in this
vehicle and is convicted of: or CDL and a CLP or CDL holder must be 383.5, a person a CMV, a person Table while operating
CDL holder must be disqualified from required to have a required to have a a non-CMV, a CLP or
disqualified from operating a CMV for * CLP or CDL and a CLP CLP or CDL and a CLP CDL holder must be
operating a CMV for * * * or CDL holder must be or CDL holder must be disqualified from
* * disqualified from disqualified from operating a CMV for *
operating a CMV for * operating a CMV for * * *
* * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * * * *
(6) Using the vehicle to commit a 1 year................ 1 year................ 3 years.............. Life................. Life.
felony, other than a felony
described in paragraph (b)(9) or
(10) of this table * * *.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
* * * * *
0
18. Amend Sec. 383.91 by revising figure 1 after paragraph (d) to read
as follows:
Sec. 383.91 Commercial motor vehicle groups.
* * * * *
(d) * * *
BILLING CODE 4910-EX-P
[[Page 35641]]
[GRAPHIC] [TIFF OMITTED] TR07JY21.076
[[Page 35642]]
BILLING CODE 4910-EX-C
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
0
19. The authority citation for part 384 is revised to read as follows:
Authority: 49 U.S.C. 31136, 31301 et seq., 31502; secs. 103 and
215, Pub. L. 106-159, 113 Stat. 1753, 1767; sec. 32934, Pub. L. 112-
141, 126 Stat. 405, 830; secs. 5401 and 7208, Pub. L. 114-94, 129
Stat. 1312, 1546, 1593 (49 U.S.C. 31305(a)); and 49 CFR 1.87.
0
20. Revise Sec. 384.401 to read as follows:
Sec. 384.401 Withholding of funds based on noncompliance.
(a) Following the first year of noncompliance. An amount up to 4
percent of the Federal-aid highway funds required to be apportioned to
any State under 23 U.S.C. 104(b)(1) and (2) shall be withheld from a
State on the first day of the fiscal year following such State's first
year of noncompliance under this part.
(b) Following second and subsequent year(s) of noncompliance. An
amount up to 8 percent of the Federal-aid highway funds required to be
apportioned to any State under 23 U.S.C. 104(b)(1) and (2) shall be
withheld from a State on the first day of the fiscal year following
such State's second or subsequent year(s) of noncompliance under this
part.
PART 385--SAFETY FITNESS PROCEDURES
0
21. The authority citation for part 385 continues to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113,
13901-13905, 13908, 31135, 31136, 31144, 31148, and 31502; Sec.
113(a), Pub. L. 103-311; Sec. 408, Pub. L. 104-88, 109 Stat. 803,
958; Sec. 350 of Pub. L. 107-87, 115 Stat. 833, 864; and 49 CFR
1.87.
0
22. In Sec. 385.3, amend the definition of Reviews by revising the
first sentence of paragraph (1) and paragraph (4) to read as follows:
Sec. 385.3 Definitions and acronyms.
* * * * *
Reviews. * * *
(1) Compliance review means an examination of motor carrier
operations, such as drivers' hours of service, maintenance and
inspection, driver qualification, commercial driver's license
requirements, financial responsibility, accidents, hazardous materials,
and other safety and transportation records to determine whether a
motor carrier meets the safety fitness standard in this part. * * *
* * * * *
(4) Roadability review means an examination of the intermodal
equipment provider's compliance with the applicable FMCSRs.
* * * * *
0
23. Add Sec. 385.21 to read as follows:
Sec. 385.21 Separation of functions.
(a) An Agency employee engaged in the performance of investigative,
advocacy, or prosecutorial functions in a proceeding under Sec.
385.15, Sec. 385.113, Sec. 385.327, Sec. 385.423, Sec. 385.711,
Sec. 385.911(e), Sec. 385.913(e), Sec. 385.1009(d), or Sec.
385.1011(d) may not, in that case or a factually-related case, discuss
or communicate the facts or issues involved with, or otherwise advise
or assist, the Agency decisionmaker or personnel advising the Agency
decisionmaker, except as counsel or a witness in a public proceeding,
or if the same facts and information are provided to all the parties
involved in the matter. The prohibition in this paragraph (a) also
includes the staff of those covered by this section.
(b) As used in this section, decisionmaker means the FMCSA official
authorized to issue a final decision in the applicable proceeding
listed in paragraph (a) of this section.
(c) Nothing in this part shall preclude Agency decisionmakers or
anyone advising an Agency decision-maker from taking part in a
determination to launch an investigation or issue a complaint, or
similar preliminary decision.
0
24. Amend appendix B to part 385 in section VII by revising the entries
Sec. 383.37(a), Sec. 383.37(b), and Sec. 383.37(c) to read as
follows:
Appendix B to Part 385--Explanation of Safety Rating Process
* * * * *
VII. List of Acute and Critical Regulations
* * * * *
Sec. 383.37(a) Allowing, requiring, permitting, or authorizing a
driver to operate a CMV who the employer knew or should reasonably have
known does not have a current CLP or CDL, does not have a CLP or CDL
with the proper class or endorsements, or operates a CMV in violation
of any restriction on the CLP or CDL (acute).
Sec. 383.37(b) Allowing, requiring, permitting, or authorizing a
driver to operate a CMV who the employer knew or should reasonably have
known has a CLP or CDL disqualified by a State, has lost the right to
operate a CMV in a State, or has been disqualified (acute).
Sec. 383.37(c) Allowing, requiring, permitting, or authorizing a
driver to operate a CMV who the employer knew or should reasonably have
known has more than one CLP or CDL (acute).
* * * * *
PART 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
0
25. The authority citation for part 390 continues to read as follows:
Authority: 49 U.S.C. 504, 508, 31132, 31133, 31134, 31136,
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108
Stat. 1673, 1677; secs. 212 and 217, Pub. L. 106-159, 113 Stat.
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and
transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L.
109-59, 119 Stat. 1144, 1726, 1743; sec. 4136, Pub. L. 109-59, 119
Stat. 1144, 1745; secs. 32101(d) and 32934, Pub. L. 112-141, 126
Stat. 405, 778, 830; sec. 2, Pub. L. 113-125, 128 Stat. 1388; secs.
5403, 5518, and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1558,
1560; sec. 2, Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.81,
1.81a, 1.87.
0
26. Amend Sec. 390.5 as follows:
0
a. Lift the suspension of the section;
0
b. Revise paragraphs (2)(i) and (ii) of the definition of Covered farm
vehicle; and
0
c. Suspend Sec. 390.5 indefinitely.
The revision reads as follows:
Sec. 390.5 Definitions.
* * * * *
Covered farm vehicle * * *
(2) * * *
(i) With a gross vehicle weight rating or gross combination weight
rating, or gross vehicle weight or gross combination weight, whichever
is greater, of 26,001 pounds or less may utilize the exemptions in
Sec. 390.39 anywhere in the United States; or
(ii) With a gross vehicle weight rating or gross combination weight
rating, or gross vehicle weight or gross combination weight, whichever
is greater, of more than 26,001 pounds may utilize the exemptions in
Sec. 390.39 anywhere in the State of registration or across State
lines within 150 air miles of the farm or ranch with respect to which
the vehicle is being operated.
* * * * *
0
27. Amend Sec. 390.5T by revising paragraphs (2)(i) and (ii) of the
definition of Covered farm vehicle to read as follows:
Sec. 390.5T Definitions.
* * * * *
Covered farm vehicle * * *
(2) * * *
(i) With a gross vehicle weight rating or gross combination weight
rating, or
[[Page 35643]]
gross vehicle weight or gross combination weight, whichever is greater,
of 26,001 pounds or less may utilize the exemptions in Sec. 390.39
anywhere in the United States; or
(ii) With a gross vehicle weight rating or gross combination weight
rating, or gross vehicle weight or gross combination weight, whichever
is greater, of more than 26,001 pounds may utilize the exemptions in
Sec. 390.39 anywhere in the State of registration or across State
lines within 150 air miles of the farm or ranch with respect to which
the vehicle is being operated.
* * * * *
PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS
0
28. The authority citation for part 391 continues to read as follows:
Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, 31502; sec.
4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat.
1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; secs.
5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; sec. 2,
Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.
0
29. Amend Sec. 391.41 by revising paragraphs (b)(2)(ii) and (b)(4),
(11), and (12) to read as follows:
Sec. 391.41 Physical qualifications for drivers.
* * * * *
(b) * * *
(2) * * *
(ii) An arm, foot, or leg which interferes with the ability to
perform normal tasks associated with operating a commercial motor
vehicle; or any other significant limb defect or limitation which
interferes with the ability to perform normal tasks associated with
operating a commercial motor vehicle; or has been granted a skill
performance evaluation certificate pursuant to Sec. 391.49;
* * * * *
(4) Has no current clinical diagnosis of myocardial infarction,
angina pectoris, coronary insufficiency, thrombosis, or any other
cardiovascular disease of a variety known to be accompanied by syncope,
dyspnea, collapse, or congestive cardiac failure;
* * * * *
(11) First perceives a forced whispered voice in the better ear at
not less than 5 feet with or without the use of a hearing aid or, if
tested by use of an audiometric device, does not have an average
hearing loss in the better ear greater than 40 decibels at 500 Hz,
1,000 Hz, and 2,000 Hz with or without a hearing aid when the
audiometric device is calibrated to American National Standard
(formerly ASA Standard) Z24.5--1951;
(12)(i) Does not use any drug or substance identified in 21 CFR
1308.11 Schedule I, an amphetamine, a narcotic, or other habit-forming
drug; or
(ii) Does not use any non-Schedule I drug or substance that is
identified in the other Schedules in 21 CFR part 1308 except when the
use is prescribed by a licensed medical practitioner, as defined in
Sec. 382.107 of this chapter, who is familiar with the driver's
medical history and has advised the driver that the substance will not
adversely affect the driver's ability to safely operate a commercial
motor vehicle; and
* * * * *
0
30. Amend Sec. 391.43 by revising paragraphs (e) and (g)(4) to read as
follows:
Sec. 391.43 Medical examination; certificate of physical examination.
* * * * *
(e) Any driver operating under a limited exemption authorized by
Sec. 391.64 shall furnish the medical examiner with a copy of the
annual medical findings of the ophthalmologist or optometrist, as
required under Sec. 391.64. If the medical examiner finds the driver
qualified under the limited exemption in Sec. 391.64, such fact shall
be noted on the Medical Examiner's Certificate.
* * * * *
(g) * * *
(4) Beginning December 22, 2015, if the medical examiner finds that
the determination of whether the person examined is physically
qualified to operate a commercial motor vehicle in accordance with
Sec. 391.41(b) should be delayed to receive additional information or
to conduct further examination in order for the medical examiner to
make such determination, he or she must inform the person examined that
the additional information must be provided or the further examination
completed within 45 days, and that the pending status of the
examination will be reported to FMCSA.
* * * * *
0
31. Effective September 7, 2021, further amend Sec. 391.43 by revising
paragraph (f) to read as follows:
Sec. 391.43 Medical examination; certificate of physical examination.
* * * * *
(f) The medical examination shall be performed, and its results
shall be recorded on the Medical Examination Report Form, MCSA-5875,
set out in this paragraph (f):
BILLING CODE 4910-EX-P
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[[Page 35645]]
[GRAPHIC] [TIFF OMITTED] TR07JY21.078
[[Page 35646]]
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[[Page 35647]]
[GRAPHIC] [TIFF OMITTED] TR07JY21.080
[[Page 35648]]
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[[Page 35649]]
[GRAPHIC] [TIFF OMITTED] TR07JY21.082
[[Page 35650]]
[GRAPHIC] [TIFF OMITTED] TR07JY21.083
[[Page 35651]]
[GRAPHIC] [TIFF OMITTED] TR07JY21.084
[[Page 35652]]
[GRAPHIC] [TIFF OMITTED] TR07JY21.085
[[Page 35653]]
* * * * *
0
32. Amend Sec. 391.64 by revising the section heading to read as
follows:
Sec. 391.64 Grandfathering for certain drivers who participated in a
vision waiver study program.
* * * * *
Issued under authority delegated in 49 CFR 1.87.
Meera Joshi,
Deputy Administrator.
[FR Doc. 2021-13888 Filed 7-6-21; 8:45 am]
BILLING CODE 4910-EX-C
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</html>Indexed from Federal Register on July 7, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.