[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 [www.gpo.gov]
[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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* * * * *

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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