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.

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; nicholas.warren@dot.gov.

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 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 § 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 § 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 § 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, but, because this final rule is not a major rule, they are not applicable.

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 § 381.110. Through this amendment, in conjunction with the following amendments to §§ 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 § 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 § 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 § 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 § 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 § 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 § 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 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 § 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 § 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 § 382.701, provides requirements and procedures for implementation of the Clearinghouse. In § 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 § 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, § 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 § 382.701(d) to § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 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 § 383.5 of 49 CFR part 383 (“Commercial driver's license standards; requirements and penalties”). To ensure consistency with the applicable statutory authority, the conjunction “and” is replaced with “or” in § 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 § 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 § 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 § 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 § 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 § 384.401 to 49 U.S.C. 31314(c), FMCSA changes the cross-references in paragraphs (a) and (b) of § 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 § 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 (§ 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 § 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 § 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 § 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 § 383.37 from “knowingly” to “knows or should reasonably know” (78 FR 60226, 60227, 60231, Oct. 1, 2013). Specifically, FMCSA amends the entries for § 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, 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 §§ 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 § 390.5T, which is currently in effect, was added (82 FR 5311).

U. Section 391.41(b) Physical Qualifications for Drivers

In § 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 § 391.43. In paragraph (e), FMCSA removes the word “endocrinologist” from the first sentence because it is no longer relevant to the requirements of § 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 § 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 § 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 § 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 § 391.64(a) 1 year after the effective date of the rule on November 19, 2019 (83 FR 47521). Because § 391.64(a) was eliminated on November 19, 2019, the reference to the diabetes waiver study program in the section title is obsolete.

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 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

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.

2. Amend § 381.110 by revising the definition of FMCSRs to read as follows:

3. Amend § 381.200 by:

a. Redesignating paragraphs (d)(3) through (10) as paragraphs (d)(5) through (12);

b. Redesignating paragraphs (d)(1) and (2) as paragraphs (d)(2) and (3); and

c. Adding new paragraphs (d)(1) and (4).

The additions read as follows:

4. Amend § 381.300 by:

a. Redesignating paragraphs (c)(3) through (8) as paragraphs (c)(5) through (10);

b. Redesignating paragraphs (c)(1) and (2) as paragraphs (c)(2) and (3); and

c. Adding new paragraphs (c)(1) and (4).

The additions read as follows:

5. Amend § 381.400 by:

a. Redesignating paragraphs (f)(3) through (8) as paragraphs (f)(5) through (10);

b. Redesignating paragraphs (f)(1) and (2) as paragraphs (f)(2) and (3); and

c. Adding new paragraphs (f)(1) and (4).

The additions read as follows:

PART 382—CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING

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.

7. In § 382.103, add the word “only” after the word “comply” in paragraph (d)(1).

8. Amend § 382.121 by revising paragraphs (b)(4)(i) and (ii) to read as follows:

9. Amend § 382.123 by revising paragraph (b)(2) to read as follows:

10. Amend § 382.701 by revising paragraph (d) introductory text to read as follows:

11. Amend § 382.705 by revising paragraphs (b)(3)(iii) and (iv) and (b)(5)(vii) to read as follows:

12. Amend § 382.717 by revising the section and paragraph (a) headings and paragraph (a)(1) to read as follows:

13. Amend § 382.725 by revising paragraph (c) to read as follows:

PART 383—COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES

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.

15. Amend § 383.3 by revising paragraph (c) to read as follows:

16. Amend § 383.5 by revising the introductory text and paragraph (1) of the definition of Commerce to read as follows:

17. In § 383.51, amend table 1 to § 383.51 in paragraph (b) by revising entry (6) to read as follows:

18. Amend § 383.91 by revising figure 1 after paragraph (d) to read as follows:

PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

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.

20. Revise § 384.401 to read as follows:

PART 385—SAFETY FITNESS PROCEDURES

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.

22. In § 385.3, amend the definition of Reviews by revising the first sentence of paragraph (1) and paragraph (4) to read as follows:

23. Add § 385.21 to read as follows:

24. Amend appendix B to part 385 in section VII by revising the entries § 383.37(a), § 383.37(b), and § 383.37(c) to read as follows:

Appendix B to Part 385—Explanation of Safety Rating Process

VII. List of Acute and Critical Regulations

§ 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).

§ 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).

§ 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

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.

26. Amend § 390.5 as follows:

a. Lift the suspension of the section;

b. Revise paragraphs (2)(i) and (ii) of the definition of Covered farm vehicle; and

c. Suspend § 390.5 indefinitely.

The revision reads as follows:

27. Amend § 390.5T by revising paragraphs (2)(i) and (ii) of the definition of Covered farm vehicle to read as follows:

PART 391—QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE (LCV) DRIVER INSTRUCTORS

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.

29. Amend § 391.41 by revising paragraphs (b)(2)(ii) and (b)(4), (11), and (12) to read as follows:

30. Amend § 391.43 by revising paragraphs (e) and (g)(4) to read as follows:

31. Effective September 7, 2021, further amend § 391.43 by revising paragraph (f) to read as follows:

32. Amend § 391.64 by revising the section heading to read as follows: