Amendments To Implement Certain Provisions of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU); Final Rule, 36760-36791 [E7-11717]

Agencies

• Federal Motor Carrier Safety Administration
• DEPARTMENT OF TRANSPORTATION

[Federal Register Volume 72, Number 128 (Thursday, July 5, 2007)]
[Rules and Regulations]
[Pages 36760-36791]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-11717]



[[Page 36759]]

-----------------------------------------------------------------------

Part II





Department of Transportation





-----------------------------------------------------------------------



Federal Motor Carrier Safety Administration



-----------------------------------------------------------------------



49 CFR Parts 350, 375, 383, et al.



 Amendments To Implement Certain Provisions of the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU); Final Rule

Federal Register / Vol. 72 , No. 128 / Thursday, July 5, 2007 / Rules 
and Regulations

[[Page 36760]]


-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 350, 375, 383, 384, 385, 386, 390, and 395

RIN 2126-AA96


Amendments To Implement Certain Provisions of the Safe, 
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy 
for Users (SAFETEA-LU); Final Rule

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Federal Motor Carrier Safety Administration (FMCSA) adopts 
as final certain regulations required by the Safe, Accountable, 
Flexible, Efficient Transportation Equity Act: A Legacy for Users 
(SAFETEA-LU). These regulations govern State compliance plans under the 
Motor Carrier Safety Assistance Program; withholding of Federal-aid 
highway funds based on State noncompliance with the Commercial Driver's 
License Program; intrastate operations of interstate motor carriers; 
civil penalties and disqualifications for violations of out-of-service 
orders; civil penalties for denial of access to records and property 
and for violations of statutes and regulations governing hazardous 
materials transportation; exemption from the Federal hours-of-service 
regulations for operators of commercial motor vehicles engaged in 
certain defined operations; exemption of drivers of propane service or 
pipeline emergency vehicles during emergency conditions requiring 
immediate response; and interstate transportation of household goods. 
The SAFETEA-LU provisions requiring these rules became effective on 
August 10, 2005. Adoption of the rules is a nondiscretionary 
ministerial action that can be taken without issuing a notice of 
proposed rulemaking and receiving public comment, in accordance with an 
exception available to Federal agencies under the Administrative 
Procedure Act.

EFFECTIVE DATE: September 4, 2007. Petitions for Reconsideration must 
be received by the Agency not later than September 4, 2007.

FOR FURTHER INFORMATION CONTACT: Mr. Frederic L. Wood, Office of Chief 
Counsel, Regulatory Affairs Division (MC-CCR), Federal Motor Carrier 
Safety Administration, Room W61-307, 1200 New Jersey Avenue, SE., 
Washington, DC 20590; by telephone at (202) 366-0834, or by electronic 
mail at frederic.wood@dot.gov.

SUPPLEMENTARY INFORMATION: 

Legal Basis for the Rulemaking

    This final rule is based on the authority of the Federal Motor 
Carrier Safety Administration (FMCSA) to implement statutory directives 
enacted by several provisions of the Safe Accountable, Flexible, 
Efficient Transportation Equity Act: A Legacy for Users, Public Law 
109-59, 119 Stat. 1144 (Aug. 10, 2005) (SAFETEA-LU). SAFETEA-LU enacted 
a wide range of provisions modifying various regulatory programs 
administered by FMCSA affecting motor carriers and related entities. A 
number of statutory provisions made changes that were mandatory, and 
their implementation does not require the exercise of discretion by 
FMCSA.
    These statutory changes went into effect upon enactment of SAFETEA-
LU on August 10, 2005. However, it is necessary to make conforming 
changes in the regulations administered by FMCSA to ensure these rules 
are consistent with the applicable statutes and can be applied and 
enforced. The provisions enacted by SAFETEA-LU and implemented in this 
final rule are as follows:

1. Section 4102 Increased penalties for out-of-service violations 
and false records.
2. Section 4103 Penalty for denial of access to records.
3. Section 4106 Motor carrier safety grants.
4. Section 4107 High Priority Activities and New Entrant Audits.
5. Section 4114 Intrastate operations of interstate motor carriers.
6. Section 4124(c) Commercial driver's license improvements; amounts 
withheld.
7. Section 4130 Operators of vehicles transporting agricultural 
commodities and farm supplies.
8. Section 4132 Hours of service for operators of utility service 
vehicles.
9. Section 4133 Hours-of-service rules for operators providing 
transportation to movie production sites.
10. Section 4146 Exemption during harvest periods.
11. Section 4147 Emergency condition requiring immediate response.
12. Section 4202 Household goods carriers--Definitions; application 
of provisions.
13. Section 4203 Household goods carriers--Payment of rates.
14. Section 4205 Household goods carrier operations.
15. Section 4207 Household goods carriers--Liability of carriers 
under receipts and bills of lading.
16. Section 4208 Household goods carriers--Arbitration requirements.
17. Section 4210 Household goods carriers--Penalties for holding 
household goods hostage.
18. Section 7112 Unsatisfactory safety ratings.
19. Section 7120 Civil penalty.

    Each of the statutory provisions listed above may be incorporated 
in regulations adopted by FMCSA under authority granted by one or more 
of the following provisions: 49 U.S.C. 502, 13301, 31102, 31136, or 
31317. FMCSA is authorized to implement these statutory provisions by 
delegation from the Secretary of Transportation in 49 CFR 1.73.
    As noted previously, Congress gave the Agency no discretion with 
respect to implementation of these SAFETEA-LU provisions, and the 
action taken in this final rule is necessary to conform the Agency's 
regulations to the statutory directives. Therefore, the Agency may 
adopt this rule without issuing a notice of proposed rulemaking and 
receiving public comment, in accordance with an exception available to 
Federal agencies under the Administrative Procedure Act. The Rulemaking 
Analyses and Notices section of this preamble explains why notice and 
comment is not required for this final rule.
    The final rule adopts these nondiscretionary ministerial 
regulations under title 49 of the Code of Federal Regulations. The 
specific changes necessary to conform the regulations to the statutory 
provisions are described in the next section.

SAFETEA-LU Provisions Implemented by the Final Rule

    The Federal Motor Carrier Safety Regulations (FMCSRs) amended by 
this final rule encompass diverse subject areas. These subject areas 
include State compliance plans under the Motor Carrier Safety 
Assistance Program; withholding of Federal-aid highway funds based on 
State noncompliance with the Commercial Driver's License Program; 
intrastate operations of interstate motor carriers; civil penalties and 
disqualifications for violations of out-of-service (OOS) orders; civil 
penalty assessments applicable to motor carriers, brokers, and freight 
forwarders for denial of access to records and property; civil 
penalties for violations of statutes and regulations governing 
hazardous materials transportation; exemption from the Federal hours-
of-service regulations for operators of commercial motor vehicles 
(CMVs) engaged in certain defined operations; exemption of drivers of 
propane service or pipeline emergency vehicles during emergency 
conditions requiring immediate response; and interstate

[[Page 36761]]

transportation of household goods.\1\ The following discussion 
organizes by FMCSR subject area the SAFETEA-LU provisions implemented 
by this final rule. Under Section-by-Section Discussion of Amendments 
to the FMCSRs, we discuss in order of their appearance in the Code of 
Federal Regulations the specific conforming amendments being adopted.
---------------------------------------------------------------------------

    \1\ These FMCSR sugject areas more precisely reflect the 
regulatory topics affected by the SAFETEA-LU provisions than do the 
SAFETEA-LU section titles listed in Legal Basis for the Rulemaking.
---------------------------------------------------------------------------

Motor Carrier Safety Assistance Program (MCSAP) Grants--State 
Compliance Plans

    Sec. 4106 of SAFETEA-LU (119 Stat. 1717) amends 49 U.S.C. 
31102(b)(1) to modify and augment the conditions a State must meet to 
qualify for basic program funds under the MCSAP. The statute requires a 
State to document in the State Commercial Vehicle Safety Plan (CVSP) 
its commitment to meet the following seven additional conditions:
     Deploy technology to enhance the efficiency and 
effectiveness of CMV safety programs;
     Establish a program to ensure that accurate, complete, and 
timely motor carrier safety data are collected and reported to the 
Secretary of Transportation (Secretary);
     Participate in a national motor carrier safety data 
correction system prescribed by the Secretary;
     Include, in both the training manual for the licensing 
examination to drive a non-CMV and the training manual for the 
licensing examination to drive a CMV, information on best practices for 
driving safely in the vicinity of noncommercial and commercial motor 
vehicles;
     Enforce the registration (operating authority) 
requirements of 49 U.S.C. 13902 by prohibiting the operation of any 
vehicle discovered to be operated by a motor carrier without the 
required operating authority or beyond the scope of the motor carrier's 
operating authority;
     Conduct comprehensive and highly visible traffic 
enforcement and CMV safety inspection programs in high-risk locations 
and corridors; and
     Except in the case of an imminent or obvious safety 
hazard, ensure that an inspection of a vehicle transporting passengers 
for a motor carrier of passengers is conducted at a station, terminal, 
border crossing, maintenance facility, destination, or other location 
where a motor carrier may make a planned stop.
    Sec. 4106 also modifies the benchmark by which the State ensures 
the continuity of annual State expenditures for CMV safety programs 
documented in the CVSP. Prior to enactment of SAFETEA-LU, section 
31102(b)(1)(E) required that the State's total annual expenditures for 
CMV safety programs ``be maintained at a level at least equal to the 
average level of such expenditures for fiscal years 1997, 1998, and 
1999.'' Sec. 4106 updates and standardizes this benchmark by replacing 
the words ``for fiscal years 1997, 1998, and 1999'' with the words ``3 
full fiscal years beginning after October 1 of the year 5 years prior 
to the beginning of each Government fiscal year.'' This new benchmark 
ensures aggregate annual expenditures for CMV safety programs reflect 
the States' previous levels of effort.
    Additionally, sec. 4106 amends section 31102(c) to provide that a 
State may use a portion of MCSAP grant funds to conduct documented 
enforcement of State traffic laws--both laws and regulations designed 
to promote the safe operation of CMVs and laws and regulations relating 
to non-CMVs, when necessary to promote the safe operation of CMVs--
provided the State maintains a level of motor carrier safety activities 
at least equal to its average level of such activities for fiscal years 
2003, 2004, and 2005. However, the statute limits the portion of MCSAP 
basic program funds a State may use for noncommercial motor vehicle-
related enforcement activities to no more than 5 percent, unless the 
Secretary determines a higher percentage will result in significant 
increases in CMV safety.
    Sec. 4107(a) of SAFETEA-LU amends 49 U.S.C. 31104 to add a 
provision specifying the safety performance criteria for distribution 
of High Priority Activity funds as part of the MCSAP grants, as well as 
the set-aside amounts and eligible grant recipients. Under the newly 
enacted and currently effective provisions of section 31104(k)(2), the 
Secretary may set aside up to $15,000,000 for each fiscal year through 
2009 for States, local governments, and organizations representing 
government agencies or officials that use and train qualified officers 
and employees in coordination with State motor vehicle safety agencies. 
Sec. 31104(k)(4) provides that at least 90 percent of the amounts set 
aside shall be awarded in grants to State and local government 
agencies.
    Sec. 4107(b) amends section 31144 to add a similar provision 
concerning New Entrant Funds. Under the newly enacted and currently 
effective provisions of section 31144(f), the Secretary shall set aside 
up to $29,000,000 from MCSAP grant funds per fiscal year and may make 
grants from this amount to State and local governments for new entrant 
motor carrier audits, without requiring a matching contribution from 
such governments. In addition, if the Secretary determines that a State 
or local government is not able to use government employees to conduct 
new entrant motor carrier audits, the Secretary may use the funds set 
aside to conduct such audits for the State or local government.

Withholding of Federal-Aid Highway Funds Based on State Noncompliance 
With the Commercial Driver's License Program

    Sec. 4124(c) of SAFETEA-LU (119 Stat. 1730) amends 49 U.S.C. 
31314(a) and (b) by providing that the Secretary shall withhold from a 
State, based on noncompliance with the Commercial Driver's License 
(CDL) Program, ``up to'' a specified percentage (5 percent and 10 
percent for the first and subsequent years, respectively) of Federal-
aid highway funds apportioned to the State under 23 U.S.C. 104(b)(1), 
(3), and (4). As the Federal-aid withholding amounts previously were 
fixed at the above-noted percentages, this provision allows FMCSA a 
certain amount of discretion in determining the amount of Federal-aid 
highway funds to be withheld from a given State.

Intrastate Operations of Interstate Motor Carriers

    Sec. 4114 of SAFETEA-LU (119 Stat. 1725) amends 49 U.S.C. 31144 by 
enhancing FMCSA's regulatory authority over the intrastate operations 
of interstate motor carriers and by directing the Agency to consider, 
as part of determining the safety ratings of interstate carriers that 
also operate in Canada and Mexico, the carriers' safety records in 
those countries. Specifically, Sec. 4114(a) amends section 31144(a) to 
affirm the Agency's authority, for the purposes of determining safety 
fitness ratings, to consider ``among other things the accident record'' 
(i.e., record of crashes) and safety inspection records of ``an owner 
or operator operating in interstate commerce'' and also ``the accident 
record and safety inspection record of such owner or operator * * * in 
operations that affect interstate commerce.'' Motor carriers already 
are required by 49 CFR 390.15 to record intrastate accidents on their 
accident registers. See Accident Recordkeeping Requirements issued by 
the Federal Highway Administration (FMCSA's predecessor organization 
within the

[[Page 36762]]

U.S. Department of Transportation), which clarified the definition of 
``accident'' in 49 CFR 390.5 (60 FR 44439, Aug. 28, 1995). The 
provisions of section 31144(a)(1)(A), as amended by SAFETEA-LU, remove 
any uncertainty about the Agency's authority to utilize such data in 
determining a carrier's safety fitness. Additionally, sec. 4114(a) 
authorizes the Agency to consider such data from operations in Canada 
and Mexico, if the owner or operator also conducts operations within 
the United States.
    Sec. 4114(b) provides that if FMCSA determines a motor carrier is 
unfit and prohibits the carrier from operating in interstate commerce, 
the Agency also must place out of service the carrier's operations 
affecting interstate commerce.
    Finally, section 4114(c) provides that, if a State receiving MCSAP 
funds and using FMCSA's safety rating methodology prohibits the 
intrastate operations of a carrier whose principal place of business is 
in that State, FMCSA must take reciprocal action by prohibiting the 
motor carrier from operating in interstate commerce.
    It should be noted that section 4114(a) allows FMCSA to utilize, 
for purposes of evaluating the safety fitness of motor carriers that 
operate in the United States, data on ``the accident record and safety 
inspection record * * * in operations in Canada and Mexico'' whether 
the owner or operator is domiciled in Canada, Mexico, or the United 
States. This amendment expands the scope of 49 U.S.C. 31144(a)(1), but 
it is not an exercise of extraterritorial jurisdiction, because any 
fitness determinations resulting from utilization of this additional 
data would be effective only in the United States. Procedures for 
conducting compliance reviews on Mexico-domiciled carriers are set 
forth in part 385, subpart B; and FMCSA selectively conducts compliance 
reviews on Canada-domiciled motor carriers as appropriate. Discussions 
on harmonizing procedures for safety fitness determinations and 
expanding data sharing efforts are currently in progress with Mexico 
and Canada. Implementation of such agreements and procedures will be 
necessary to make more Canadian and Mexican data available for this 
purpose.

Civil Penalties and Disqualifications for Violations of Out-of-Service 
Orders

    Sec. 4102(b)(2)-(4) of SAFETEA-LU (119 Stat. 1715) amends 49 U.S.C. 
31310(i)(2) by increasing minimum CDL disqualification periods and 
civil penalty amounts applicable to drivers convicted of violating a 
driver or vehicle OOS order. It also increases the maximum civil 
penalty assessment applicable to employer violations of OOS orders.\2\ 
These changes are as follows:
---------------------------------------------------------------------------

    \2\ The changes in penalties made by sec. 4102(a) of SAFETEA-LU 
(amending 49 U.S.C. 521(b)(2)(B) to increase the penalties for 
recordkeeping and reporting violation) does not require any change 
in the FMCSRs because they are automatically implemented by 49 CFR 
386.81. The new criminal offense for knowing and willful violation 
of an OOS order added to 49 U.S.C. Sec.  31310(i)(2)(D) by 
4102(b)(5) of SAFETEA-LU also does not require any changes in the 
FMCSRs because the general provisions of Title 18 U.S.C. referred to 
provide for and implement penalties for violations of Federal 
criminal statutes.
---------------------------------------------------------------------------

    Minimum CDL disqualification periods. Sec. 4102(b) increases the 
minimum CDL disqualification periods applicable to drivers convicted of 
violating a driver or vehicle OOS order while transporting nonhazardous 
materials. Under previous 49 U.S.C. 31310(i)(2), such a driver must be 
disqualified from operating a CMV for no less than 90 days for the 
first conviction and at least 1 year for the second conviction. 
Sections 4102(b)(2) and (3) amend section 31310(i)(2) by increasing 
these minimum disqualification periods to 180 days for the first 
conviction and 2 years for the second conviction.
    SAFETEA-LU does not affect the maximum disqualification periods 
prescribed in the FMCSRs for violating an OOS order. The minimum and 
maximum disqualification periods in the FMCSRs for OOS violations while 
transporting hazardous materials are also unchanged.
    Minimum civil penalty assessments on drivers. Sec. 4102(b) 
increases the minimum civil penalty assessments applicable to drivers 
convicted of an OOS violation. Under previous 49 U.S.C. 31310(i)(2)(A) 
and (B), such violations carried a minimum civil penalty of $1,000 for 
both a first and second conviction. Sections 4102(b)(2) and (3) amend 
section 31310(i)(2) by increasing the minimum penalty amount for the 
first and second convictions to $2,500 and $5,000, respectively.
    Maximum civil penalty assessments on employers. Under previous 49 
U.S.C. 31310(i)(2)(C), an employer that knowingly allowed or required 
an employee to operate a CMV in violation of an OOS order was liable 
for a civil penalty of not more than $10,000. Sec. 4102(b)(4) amends 
this section by increasing the maximum civil penalty assessment to 
$25,000.

Transportation of Hazardous Materials--Civil Penalty For Violation of 
Out-of-Service Order

    Sec. 7112 of SAFETEA-LU (119 Stat. 1899) amends 49 U.S.C. 5113 and 
31144 to provide that an interstate motor carrier owning or operating 
CMVs designed or used to transport hazardous materials for which 
placarding of a motor vehicle is required under chapter 51 of 49 
U.S.C., that operates in interstate commerce after being placed out of 
service because of a final ``unsatisfactory'' safety rating, is subject 
to the civil and criminal penalties set forth in 49 U.S.C. 5123 and 
5124. Those are penalties for violations of the Hazardous Materials 
Regulations (HMRs) that are higher than those found in the general 
civil and criminal penalty provisions under 49 U.S.C. 521 for 
violations of the FMCSRs. The maximum penalties available are increased 
to $100,000 per offense in cases where a violation results in death, 
serious illness, or severe injury to any person or substantial 
destruction of property.

Civil Penalties for Violations of Statutes and Regulations Governing 
Hazardous Materials Transportation

    Sec. 7120 of SAFETEA-LU (119 Stat. 1905) amends 49 U.S.C. 5123 and 
5124 to revise the maximum and minimum civil penalties pertaining to 
violations of the HMRs, including violations related to hazardous 
materials training. The maximum penalties that may be applied are 
increased to $100,000 per offense in cases where a violation results in 
death, serious illness, or severe injury to any person or substantial 
destruction of property. The amendments to the FMCSRs allow FMCSA, in 
the exercise of its concurrent authority to enforce the HMRs, to apply 
the penalties prescribed in the hazardous materials law.

Civil Penalties For Motor Carriers, Freight Forwarders, and Brokers 
That Deny FMCSA the Right To Access Their Records and Facilities

    Sec. 4103 of SAFETEA-LU (119 Stat. 1716) amends 49 U.S.C. 521 by 
adding section 521(b)(2)(E), ``Copying of records and access to 
equipment, lands, and building.'' This section establishes a civil 
penalty applicable to a person subject to 49 U.S.C. chapter 51, or to a 
motor carrier, broker, freight forwarder, or CMV owner or operator 
subject to part B of subtitle VI, who does not allow, upon demand, the 
Secretary (or an employee designated by the Secretary) to inspect and 
copy any record or inspect and examine equipment, lands, buildings, and 
other

[[Page 36763]]

property in accordance with 49 U.S.C. 504(c), 5121(c), and 14122(b). 
Motor carriers and other entities or persons subject to FMCSA 
regulations must promptly submit accounts, books, records, memoranda, 
correspondence, and other documents for inspection and copying, as well 
as make their lands, buildings, equipment, and other property available 
for examination and inspection by FMCSA (or an employee designated by 
FMCSA) upon demand and display of a proper credential. The civil 
penalty established in sec. 4103 for violating this requirement is not 
to exceed $1,000 for each offense. Each day that access is denied is 
considered a separate offense; however the total penalty for all 
offenses related to a single violation may not exceed $10,000.
    The primary goal of sec. 4103 is to compel uncooperative parties 
subject to the FMCSRs and/or the HMRs to promptly produce relevant 
records and allow access to property upon demand by credentialed FMCSA 
employees. As provided in the last sentence of section 521(b)(2)(E), 
additional remedies under 49 U.S.C. 502(d) and 507(c) are available to 
FMCSA to address situations not covered by the civil penalties added by 
sec. 4103.

Exemptions From the Federal Hours-of-Service Rules for Operators of 
CMVs Engaged in Certain Defined Operations

    The statutory history of these provisions is complex. First, Sec. 
4115 of SAFETEA-LU (119 Stat. 1726) amends title II of the Motor 
Carrier Safety Improvement Act of 1999 (Public Law 106-159, 113 Stat. 
1748-1773) (MCSIA) to add a new sec. 229, set out as a note to 49 
U.S.C. 31136.\3\ Section 229 then was amended by subsequent sections of 
SAFETEA-LU to revise or add exemptions from the Federal hours-of-
service regulations for drivers in certain defined operations. See 49 
U.S.C. 31136 note. These exemptions are as follows:
---------------------------------------------------------------------------

    \3\ Section 229 was previously enacted as sec. 345 of Public Law 
104-59, 109 Stat. 613 (November 28, 1995) and was also set out as a 
note to 49 U.S.C. 31136.
---------------------------------------------------------------------------

    Drivers transporting agricultural commodities. Sec. 4130(a) of 
SAFETEA-LU (119 Stat. 1743) amends the new sec. 229(a)(1) of MCSIA to 
restate the previous exemption of certain drivers transporting 
agricultural commodities or farm supplies for agricultural purposes 
within a State from regulations regarding maximum driving and on-duty 
time during planting and harvesting periods (as determined by the 
State), provided the transportation is limited to an area within a 100 
air-mile radius of the source of the commodities or the distribution 
point for the farm supplies. Section 4130(c) added to section 229 of 
MCSIA two definitions related to this exemption. Sec. 229(c)(7) defines 
``agricultural commodity'' as ``any agricultural commodity, non-
processed food, feed, fiber, or livestock (including livestock as 
defined in sec. 602 of the Emergency Livestock Feed Assistance Act of 
1988 (7 U.S.C. 1471) and insects).'' Sec. 229(c)(8) defines ``farm 
supplies for agricultural purposes'' as including ``products directly 
related to the growing or harvesting of agricultural commodities during 
the planting and harvesting seasons within each State, as determined by 
the State, and livestock feed at any time of the year.''
    Drivers of utility service vehicles. Sec. 4132 of SAFETEA-LU (119 
Stat. 1744) further amends sec. 229(a) of MCSIA to add subsection 
(a)(4), which exempts drivers of utility service vehicles from the 
Federal hours-of-service regulations under the circumstances specified 
in the definition in subsection 229(c)(6) and prohibits enactment of 
similar regulations by States and other jurisdictions.
    Drivers providing transportation to or from a motion picture 
production site. Sec. 4133 of SAFETEA-LU (119 Stat. 1744) (set out as a 
note to 49 U.S.C. 31136) provides that drivers transporting property or 
passengers to or from a theatrical or television motion picture 
production site located within a 100 air-mile radius of the driver's 
work-reporting location are exempt from the regulations currently in 
effect regarding maximum daily hours of service. Such drivers are 
subject instead to the maximum daily hours-of-service regulations in 
effect on April 27, 2003. At any time the driver operates beyond 100 
air miles of the work-reporting location, this exception does not 
apply.
    Exemption for the transportation of grapes in the State of New York 
during harvest periods. Sec. 4146 of SAFETEA-LU (119 Stat. 1749) 
suspends through fiscal year 2009 the applicability of regulations 
regarding maximum driving and on-duty time for drivers transporting 
grapes west of Interstate 81 in New York State during harvest periods 
(as determined by the State). This exception applies only if the 
transportation is within a 150 air-mile radius of where the grapes are 
picked and distributed.

Exemption of Drivers of Propane Service or Pipeline Emergency Vehicles 
During Emergency Conditions Requiring Immediate Response

    Section 4147 of SAFETEA-LU (119 Stat. 1749) added a new subsection 
(f) to sec. 229 of MCSIA to provide an exception from regulations 
prescribed under the authority of 49 U.S.C. 31136 or 49 U.S.C. 31502 
for drivers of CMVs used primarily in the transportation of propane 
winter heating fuel or used to respond to a pipeline emergency, if such 
a regulation would prevent the driver from responding to an emergency 
condition requiring immediate response. This exception applies to the 
driver, not to the CMV. Therefore, the regulations from which these 
drivers will be exempted while such emergency conditions prevail are 
limited to those in 49 CFR parts 390-399 that apply to the driver. The 
driver will not be exempted from the controlled substances and alcohol 
use and testing regulations and the commercial driver's license 
regulations in parts 382 and 383, respectively, because those 
regulations are prescribed under 49 U.S.C. chapter 313 rather than 
under sections 31136 or 31502 specified in section 4147. See also 49 
CFR 382.103(a), 382.107 (definition of commercial motor vehicle), 
383.3(a), and 383.5 (definition of commercial motor vehicle), which 
continue to apply the controlled substance and alcohol use and testing 
regulations and the CDL regulations to drivers who might be exempt from 
other regulations under section 229(f) of MCSIA.
    The exception applies only when an otherwise applicable regulation 
in parts 390-399 would prevent the driver from responding to an 
emergency condition requiring immediate response. The driver's 
exemption from applicable regulations is not automatic or carte 
blanche. Rather, the determination whether the exemption is applicable 
must be made on a case-by-case basis after consideration of all facts 
and circumstances related to the emergency condition. Further, the 
circumstances that may constitute emergency conditions requiring 
immediate response are not limited to those identified in the statute. 
Any claim by the motor carrier or the driver that circumstances not 
specified in the statute constitute such an emergency condition must be 
evaluated by motor carrier enforcement personnel on a case-by-case 
basis.

[[Page 36764]]

Interstate Transportation of Household Goods

    This final rule amends certain FMCSRs governing elements of the 
interstate transportation of household goods, as follows:

A. Definitions and Applicability

    Sec. 4202(b) of SAFETEA-LU (119 Stat. 1751) amends 49 U.S.C. 13102 
by adding the statutory definitions for ``household goods motor 
carrier'' and ``individual shipper.'' The new statutory definition for 
individual shipper modifies the existing definition in 49 CFR 375.103. 
This final rule adds to Sec.  375.103 the statutory definition of a 
household goods motor carrier. Under the definition, a motor carrier 
that transports household goods is considered a household goods motor 
carrier if it offers some or all of four additional services: (1) 
Providing binding and nonbinding estimates; (2) inventorying; (3) 
protective packing and unpacking of individual items at personal 
residences; and (4) loading and unloading at personal residences. As 
required by the statute, the definition excludes a motor carrier 
transporting household goods in containers or trailers that are 
entirely loaded and unloaded by an individual who is not employed by or 
acting as an agent of the carrier. Only carriers that are considered 
household goods motor carriers are subject to the provisions of 49 CFR 
part 375.
    Sec. 4202(c) of SAFETEA-LU provides that the statutes (and, by 
extension, the implementing regulations) governing the transportation 
of household goods apply only to household goods motor carriers, as now 
defined in 49 U.S.C. 13102. Household goods motor carriers are subject 
in addition to provisions of statutes and regulations applicable to all 
motor carriers of property, unless specifically excluded.

B. Payment of Transportation Charges

    Sec. 4203 of SAFETEA-LU amends 49 U.S.C. 13707(b) to limit the 
transportation charges individual shippers must pay to household goods 
motor carriers to obtain delivery of a shipment of household goods and 
to regulate procedures concerning additional charges.
    Estimated charges. The motor carrier is required to relinquish the 
household goods at destination upon payment by the individual shipper 
of either 100 percent of a binding estimate or not more than 110 
percent of a non-binding estimate. However, if only partial delivery of 
the goods is made, the carrier may not charge more than a prorated 
percentage of either (1) the binding estimate or (2) up to 110 percent 
of the non-binding estimate. The prorated amount must be based on the 
percentage of the weight of that portion of household goods delivered 
relative to the total weight of the shipment.
    Additional charges. As applicable, the carrier also may require at 
destination payment of charges for (1) additional services requested by 
the shipper and not included in the estimate (post-contract services) 
and (2) impracticable operations, as defined by the carrier's tariff. 
Charges collected at delivery for impracticable operations must not 
exceed 15 percent of all other charges due at delivery. However, the 
individual shipper must pay any remaining impracticable operations 
charges within 30 days after the carrier presents its freight bill.

C. Operations and Estimates

    Sec. 4205 of SAFETEA-LU (119 Stat. 1753) amends 49 U.S.C. 14104(b) 
by requiring the household goods motor carrier to conduct a physical 
survey of the household goods to be transported on behalf of the 
individual shipper. The carrier must then provide the shipper with a 
written estimate, based on the physical survey, of charges for the 
transportation and all related services. The statute permits two 
exceptions to the requirement for a physical survey.
    First, the motor carrier need not conduct a physical survey if the 
household goods are located beyond a 50-mile radius of the location of 
the carrier's household goods agent preparing the written estimate 
provided to the individual shipper.
    Second, the individual shipper may elect to waive a physical survey 
of the household goods. Such a waiver agreement is subject to several 
requirements. The waiver must be in writing; it must be signed by the 
individual shipper before the household goods shipment is loaded; and 
the motor carrier must retain a copy of the waiver as an addendum to 
the bill of lading. The copy of the waiver agreement is subject to the 
same record retention requirements that apply to the bill of lading, as 
provided in Sec.  375.505(d).
    Section 4205 also codified or added certain requirements for 
household goods motor carriers to provide two informational 
publications to individual shippers--``Ready to Move?'' and ``Your 
Rights and Responsibilities When You Move'' or any successor 
publications.

D. Limitations on Liability and Released Rates

    Sec. 4207 of SAFETEA-LU (119 Stat. 1757) amends the liability 
provisions in 49 U.S.C. 14706(f) to impose on the household goods motor 
carrier a ``full value protection obligation'' with respect to the 
individual shipper. The motor carrier is liable for the full value of 
household goods that are lost, damaged, destroyed or otherwise not 
delivered to the final destination unless the individual shipper waives 
such liability in writing. The carrier's liability is equal to the 
replacement value of the household goods, subject to a maximum amount 
equal to the declared value of the shipment and to rules issued by the 
Surface Transportation Board (STB) and applicable tariffs. If the 
household goods motor carrier receives from the individual shipper a 
written waiver of liability for full value protection, the released 
rates established by the STB shall apply.

E. Arbitration Requirements

    Sec. 4208 of SAFETEA-LU (119 Stat. 1757) amends the provisions 
governing procedures for arbitration of disputes in 49 U.S.C. 14708 as 
follows--
    Sec. 14708(b), as amended by section 4208(b), increases from $5,000 
to $10,000 the threshold amount at which the carrier must agree to 
submit certain disputes to binding arbitration at the individual 
shipper's request. If the dispute involves a claim of $10,000 or less 
and the shipper requests arbitration, the arbitration shall be binding 
on the parties. If a shipper requests arbitration involving a claim of 
more than $10,000, the decision of the arbitrator shall be binding on 
the parties only if the carrier agrees to the arbitration. Sec. 
14708(b) is further amended by section 4208(c) to provide that the 
arbitrator may, among other appropriate remedies listed in the statute, 
order the shipper to pay additional carrier charges.

F. Penalties for Holding Household Goods Hostage

    Sec. 4210 of SAFETEA-LU (119 Stat. 1758) amends chapter 149 of 
title 49 U.S.C. to add section 14915, which makes household goods motor 
carriers subject to civil and criminal penalties, as well as to 
suspension of registration, for failure to give up possession of the 
household goods upon tender of appropriate payment by the individual 
shipper. The civil penalty shall be not less than $10,000 for each 
violation, and each day the household goods are held hostage 
constitutes a separate violation. A violation may additionally result 
in the suspension of the household goods

[[Page 36765]]

motor carrier's registration under the provisions of 49 U.S.C. chapter 
139. These penalties complement the provisions for payment of rates 
added by sec. 4203 as discussed previously.

Section-by-Section Discussion of the FMCSR Amendments \4\
---------------------------------------------------------------------------

    \4\ To achieve a logical sequence of regulatory provisions, 
certain of the amended FMCSR sections include paragraphs that are 
redesignated (i.e., renumbered) but not otherwise revised.
---------------------------------------------------------------------------

A. Part 350--Commercial Motor Carrier Safety Assistance Program

    In part 350, we revise Sec. Sec.  350.111, 350.201, 350.211, and 
350.309 to implement the amended requirements in sec. 4106(c)(2) of 
SAFETEA-LU concerning MCSAP-eligible funding for documented enforcement 
of State and local traffic laws and regulations designed to promote the 
safe operation of CMVs and non-CMVs. We further amend Sec.  350.201, 
and amend Sec.  350.301, to align the qualifying conditions for MCSAP 
Basic Program Funds and expenditure levels with those in sec. 
4106(a)(1)(A), (a)(2)(E), (a)(3)(Q), (A)(3)(U), (A)(3)(V), and 
(A)(3)(X). These expanded requirements are captured as well in amended 
Sec.  350.211, which provides the required format of the certification 
necessary for receipt of MCSAP Basic Program funding. The revisions to 
Sec.  350.111 include minor editorial clarifications.
    Changes to part 350 also are required by sec. 4107 of SAFETEA-LU, 
which amends the provisions regarding High Priority Activity funds and 
adds provisions for New Entrant Funds. In Sec.  350.105, we amend the 
definition for High Priority Activity Funds and add a definition for 
New Entrant Funds to implement sec. 4107(a) and (b), respectively. As 
required by sec. 4107(a), High Priority funds are now to be allocated 
only to ``State agencies, local governments, and organizations 
representing government agencies or officials that use and train 
qualified officers and employees in coordination with State motor 
vehicle safety agencies,'' and used for ``carrying out high priority 
activities and projects that improve commercial motor vehicle safety * 
* *.'' Additionally, projects eligible for high priority funds include 
demonstration of new technologies and public awareness and education.
    We implement this heightened specificity regarding High Priority 
grant recipients not only in the amended definition under Sec.  350.105 
but also in Sec.  350.313(c). The set-asides for High Priority and New 
Entrant grants provided in sec. 4107(a) and (b), respectively, are 
implemented in Sec.  350.313(a). The High Priority annual set-aside 
(which is up to $15,000,000 for fiscal years 2006 through 2009) is 
implemented as well in Sec.  350.319(d).
    Similarly, Sec.  350.321(d) provides that in each fiscal year the 
Administrator shall set aside for New Entrant activities an amount of 
MCSAP funding up to the maximum allowed by law. For each year, the 
maximum allowable amount is $29,000,000. To allow for future 
adjustments of the set-aside amounts by Congress, the regulatory text 
does not specify the amounts and applicable fiscal years. Section 
350.321 (whose heading is revised to read, ``What are permissible uses 
of New Entrant Funds?'') provides in addition that FMCSA will allocate 
New Entrant funds to State and local governments without requiring a 
matching contribution.
    We further implement sec. 4107 in Sec.  350.329, whose heading is 
revised to read ``How may a State or local agency qualify for High 
Priority or New Entrant Funds?''
    Finally, we remove Sec.  350.217. This section concerns MCSAP grant 
funds authorized under sec. 103(b)(1) of MCSIA, which is no longer in 
effect.

B. Part 375--Transportation of Household Goods in Interstate Commerce; 
Consumer Protection Regulations

    We amend Sec.  375.103 to revise the definition of ``individual 
shipper'', to add a definition for ``household goods motor carrier'', 
as required by sec. 4202(b) of SAFETEA-LU, and to revise the related 
definitions of ``you'' and ``your'' to reflect the new definition. As 
sec. 4202(c) limits the applicability of the regulations governing 
interstate transportation of household goods to household goods motor 
carriers as defined in sec. 4202(b), we amend Sec.  375.101, entitled 
``Who must follow these regulations?'', to replace the words ``for-hire 
motor carrier'' with the words ``household goods motor carrier,'' 
consistent with the definition in Sec.  375.103.
    To implement the sec. 4207 requirement that the motor carrier 
provide the individual shipper with full value protection against loss 
of, or damage to, household goods, unless the shipper waives the 
carrier's full value liability in writing, we amend Sec. Sec.  
375.201(b) and (c), 375.501(a)(10), 375.505(b)(12), and the sections 
``What Is My Mover's Normal Liability for Loss or Damage When My Mover 
Accepts Goods From Me?'' and ``What Actions by Me Limit or Reduce My 
Mover's Normal Liability?'' in subpart B of appendix A to part 375.
    We amend Sec.  375.211 to implement the sec. 4208 requirements 
governing arbitration of disputes between the carrier and shipper 
regarding loss of or damage to the household goods. The introductory 
text to amended Sec.  375.211(a) implements the provision in section 
4208(c) requiring arbitration on the issue of whether the individual 
shipper must pay additional carrier charges not collected at delivery. 
Sections 375.211(a)(7) and (8) implement the increased claim-amount 
thresholds at which arbitration requested by the individual shipper 
shall be binding, as provided in section 4208(b). Both provisions also 
are described in subpart B of appendix A to part 375, under ``Must My 
Mover Have an Arbitration Program?''. The section 4208(c) provision 
concerning payment of additional carrier charges not collected at 
delivery is described as well in the section ``Do I Have a Right To 
File a Claim To Recover Money for Property My Mover Lost or Damaged?'' 
under subpart H of this appendix.
    We amend Sec.  375.213 by revising paragraph (a) to implement the 
sec. 4205 requirement that the carrier provide the shipper a copy of 
the Department of Transportation publication FMCSA-ESA-03-005 entitled 
``Ready to Move?'' (or its successor publication) \5\ when providing 
the written estimate. We also make minor editorial revisions in Sec.  
375.213(c). We inform the individual shipper of the mover's obligation 
to provide him or her with a copy of ``Ready to Move?'' in ``What 
Information Must My Mover Provide Me?'' under subpart B of appendix A 
to part 375--the consumer pamphlet ``Your Rights and Responsibilities 
When You Move.''
---------------------------------------------------------------------------

    \5\ This publication is available on the FMCSA's Protect Your 
Move Web site at https://www.protectyourmove.gov/documents/
ReadyToMove-2006-april.pdf.
---------------------------------------------------------------------------

    The requirement in 49 U.S.C. 14104(b)(2) for the household goods 
motor carrier to provide the shipper with a copy of the publication 
``Your Rights and Responsibilities When You Move'' is already contained 
in Sec.  375.213. The contents of this publication are specified in 
Appendix A to part 375. The publication was reissued in 2006 (71 FR 
17945, Apr. 7, 2006) to reflect most, but not all, of the statutory 
changes implemented by regulations now adopted in this final rule.\6\ 
The revised publication, which also includes the remaining changes 
required by SAFETEA-LU, together

[[Page 36766]]

with certain clarifying edits, is being published in this final rule.
---------------------------------------------------------------------------

    \6\ The current version of this publication, No. FMCSA-ESA-03-
006, is also available on the same Web site at https://
www.protectyourmove.gov/documents/moving-rights-v9-final.pdf.
---------------------------------------------------------------------------

    We amend Sec. Sec.  375.401(a), 375.403(a), and 375.405(b)(1) to 
implement the sec. 4205 requirement that the motor carrier's written 
estimate (whether binding or non-binding) be based on a physical survey 
of the household goods. The two exceptions to this requirement--the 
physical survey is not required if the household goods are located 
beyond a 50-mile radius of the carrier's agent preparing the estimate 
or if the shipper waives the requirement in writing--are found in 
amended Sec. Sec.  375.401(a)(1) and (2). Amended Sec. Sec.  375.403(a) 
and 375.405(b) include minor editorial revisions. Corresponding 
information is provided to the individual shipper in the section ``Must 
My Mover Estimate the Transportation and Accessorial Charges for My 
Move?'' under subpart D of Appendix A to part 375.
    We further amend Sec. Sec.  375.401, 375.403, 375.405, and 375.407 
to implement certain provisions of 49 U.S.C. 13707(b), as amended by 
sec. 4203 of SAFETEA-LU. Under amended section 13707(b)(3)(C), the 
motor carrier may charge the shipper at delivery for post-contract 
services requested by the shipper. Post-contract services means 
services requested by the individual shipper after the bill of lading, 
which contains the terms and conditions of the contract between the 
carrier and the individual shipper, has been issued as provided in 49 
CFR 375.505(a). Under amended section 13707(b)(3)(D), the carrier may 
require the shipper to pay charges at delivery for impracticable 
operations, provided these charges do not exceed 15 percent of all 
other charges due at delivery, and allow the shipper only a 30-day 
credit period for the remaining charges. These rules are implemented in 
Sec. Sec.  375.401(e), 375.403(a)(9) and (10); 375.405(b); 375.407(a), 
(b), and (d); 375.703, 375.707(a)(2) and (3); 375.807(c)(1); and 
appendix A to part 375. A minor, clarifying editorial revision is 
included in Sec.  375.407(b).
    The Appendix A revisions noted above are found in subparts D, G, 
and H. See ``Must My Mover Estimate the Transportation and Accessorial 
Charges for My Move?''; ``How Must My Mover Estimate Charges Under the 
Regulations?''; and ``What Payment Arrangements Must My Mover Have in 
Place To Secure Delivery of My Household Goods Shipment?'' in subpart 
D; ``What Is the Maximum Collect-on-Delivery Amount My Mover May Demand 
I Pay at the Time of Delivery?'' in subpart G; and ``How Must My Mover 
Present Its Freight or Expense Bill to Me?''; ``If I Forced My Mover To 
Relinquish a Collect-on-Delivery Shipment Before the Payment of ALL 
Charges, How Must My Mover Collect the Balance?''; and ``What Actions 
May My Mover Take To Collect From Me the Charges Upon Its Freight 
Bill?'' in subpart H.
    We implement in Sec.  375.707 the sec. 4203 prohibition (as 
codified in amended 49 U.S.C. 13707(b)(3)(B)) against a motor carrier's 
demanding full payment of freight charges at delivery after making only 
partial delivery of a shipment. Corresponding information is provided 
to individual shippers in the amended section ``If My Shipment Is 
Partially Lost or Destroyed, What Charges May My Mover Collect at 
Delivery?'' under subpart G of appendix A to part 375.

C. Part 383--Commercial Driver's License Standards; Requirements and 
Penalties

    In part 383, we implement the increased civil penalty assessments 
against drivers and employers for violations of OOS orders (provided in 
sec. 4102(b)(2)-(4) of SAFETEA-LU) by amending Sec.  383.53(b)(1) and 
(2), respectively. The increased minimum disqualification periods for 
drivers convicted of such violations are implemented in amended table 4 
to Sec.  383.51 (Sec.  383.51(e)).

D. Part 384--State Compliance With Commercial Driver's License Program

    We implement the sec. 4124(c) provision concerning Federal-aid 
highway fund withholding amounts based on State noncompliance with the 
CDL Program in amended Sec.  384.401(a) and (b), respectively (as 
renumbered as a result of the change described in the next paragraph), 
by replacing, in the phrase ``equal to 5 percent'' and the phrase 
``equal to 10 percent,'' the words ``equal to'' with ``up to.'' We also 
add Sec.  384.301(c), which allows States up to 3 years from the 
effective date of the final rule to come into compliance with the newly 
adopted requirements of subpart B to part 384. This provides sufficient 
time for the States to revise State legislation and establish 
procedures to incorporate the new requirements into existing systems.
    In addition, this final rule makes a technical correction by 
removing Sec. Sec.  384.401(a)(2) and (b)(2) and renumbers the 
preceding paragraphs accordingly. Like the previously discussed Sec.  
350.217, also being removed in this rule, Sec. Sec.  384.401(a)(2) and 
(b)(2) refer to certain MCSAP grant funds authorized under sec. 
103(b)(1) of MCSIA, which is no longer in effect.

E. Part 385--Safety Fitness Procedures

    Sec. 4114 of SAFETEA-LU enhances FMCSA's regulatory authority over 
the intrastate operations of interstate motor carriers (i.e., to 
intrastate operations affecting interstate commerce) and allows the 
Agency to consider, in determining the safety rating of an interstate 
carrier that also operates in Canada and/or Mexico, the carrier's 
safety records in those countries. We implement this requirement by 
adding a definition for ``motor carrier operations in commerce'' in 
Sec.  385.3, amending the part 385 provisions concerning determination 
of motor carrier safety ratings, and amending the explanation of the 
safety rating process in appendix B to part 385.
    ``Motor carrier operations in commerce'' are defined as including 
both CMV transportation operations in interstate commerce and 
operations affecting interstate commerce in conformity with the 
statutory grant of authority. We use the term ``motor carrier 
operations in commerce'' throughout amended part 385--specifically 
Sec. Sec.  385.7, 385.13, 385.17(g), and appendix B to part 385 (in new 
paragraph (f) and amended Sec.  II(B)). Minor editorial revisions are 
included in amended Sec.  385.17(g) and Sec.  II(B) of appendix B to 
part 385.
    To implement sec. 4114(a), which allows FMCSA to utilize among 
other things, for the purposes of safety ratings, the accident record 
and safety inspection record of an owner or operator operating in 
interstate commerce and the accident record and safety inspection 
record of an owner or operator in operations that affect interstate 
commerce, both within the United States and (as such data becomes 
available) in operations in Canada and Mexico if the owner or operator 
also operates within the United States, we amend Sec. Sec.  385.7(c), 
(d), (f), and (g).
    We amend Sec.  385.13(d)(1) to implement sec. 4114(b), which 
provides that if FMCSA determines that a motor carrier is unfit and 
then prohibits the carrier from operating in interstate commerce, the 
Agency also must place out of service any operations by the carrier 
that affect interstate commerce. Operations that affect interstate 
commerce are essentially any intrastate operation. We implement in 
Sec.  385.13(d)(2) and (3) the complementary provision under sec. 
4114(c) which requires that if a State receiving MCSAP funds and using 
FMCSA's safety rating methodology prohibits the intrastate operations 
of a carrier whose principal place of business is in that State, FMCSA 
must

[[Page 36767]]

take reciprocal action by prohibiting the motor carrier from operating 
in interstate commerce.

F. Part 386--Rules of Practice for Motor Carrier, Broker, Freight 
Forwarder, and Hazardous Materials Proceedings

    In Appendix B to part 386, as required by sec. 7112 of SAFETEA-LU, 
we implement the increased maximum civil penalties to which motor 
carriers transporting hazardous materials in interstate commerce in 
quantities requiring placarding (in accordance with 49 U.S.C. chapter 
51) are subject following receipt of a final ``unsatisfactory'' safety 
rating by revising paragraph (e)(1), revising and redesignating 
paragraph (e)(3), and adding paragraphs (e)(4) and (f)(2). The 
increased civil penalties in sec. 7120(a)(3) for violations of 
training-related HMRs are implemented in amended paragraph (e)(2) and 
new paragraph (f)(2) of this appendix B. New paragraphs (e)(5) and 
(f)(2) implement the higher civil penalties in sec. 7120(a)(2) for 
violations of statutes and regulations governing hazardous materials 
transportation where the violation results in death, serious illness, 
or severe injury to any person or in substantial destruction of 
property.
    New paragraph (g)(21) of this appendix B implements the civil 
penalty established in sec. 4210 of SAFETEA-LU for failure by a 
household goods motor carrier to relinquish a shipment for which the 
individual shipper has tendered payment in accordance with part 375. 
Lastly, we add paragraph (h) to this appendix B to implement the civil 
penalty established in sec. 4103 for a motor carrier, broker, or 
freight forwarder, or any person subject to 49 U.S.C. chapter 51, who 
denies FMCSA the right to access the company's records and facilities.

G. Part 390--Federal Motor Carrier Safety Regulations; General

    In part 390, we implement sec. 4147 of SAFETEA-LU by adding to the 
existing exceptions in Sec.  390.3(f) the exception for drivers 
responding to emergency conditions, and by adding in Sec.  390.5 a 
definition for ``emergency condition requiring immediate response.'' As 
provided in Sec. Sec.  382.103(c) and 383.3(b), the exceptions in Sec.  
390.3(f) are not applicable to part 382, Controlled Substances and 
Alcohol Use and Testing, and part 383, Commercial Driver's License 
Standards; Requirements and Penalties.

H. Part 395--Hours of Service of Drivers

    Sec. 4130, 4132, 4133, and 4146 of SAFETEA-LU provide specific 
exceptions from the hours-of-service regulations for operators of 
vehicles transporting agricultural commodities and farm supplies, 
operators of utility service vehicles, transportation of property or 
passengers to or from motion picture production sites, and operators of 
CMVs transporting grapes west of Interstate 81 in the State of New York 
during a harvesting period, respectively. We implement sec. 4130 and 
4132 by amending Sec. Sec.  395.1(k)(2) and (n), respectively. Sec. 
4133 is implemented by adding Sec.  395.1(p), while the sec. 4146 
exemption concerning the transportation of grapes during the harvest 
period in New York is implemented by adding Sec.  395.1(q).

Rulemaking Analyses and Notices

Administrative Procedure Act

    Generally agencies may promulgate final rules only after issuing a 
notice of proposed rulemaking and providing an opportunity for public 
comment under procedures required by the Administrative Procedure Act 
(APA), as provided in 5 U.S.C. 553(b) and (c). The APA, in 5 U.S.C. 
553(b)(3)(B), provides a good cause exception from these requirements 
when notice and an opportunity to comment would be unnecessary. FMCSA 
finds that notice-and-comment is unnecessary prior to adoption of each 
provision in this final rule because the changes to regulations are 
statutorily mandated by Congress and the Agency is performing a 
nondiscretionary ministerial act. Therefore, notice-and-comment 
procedures under 5 U.S.C. 553 are not required by the APA and are not 
otherwise required by law.

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    FMCSA determined that this action does not meet the criteria for a 
``significant regulatory action'' either as specified in Executive 
Order 12866 or within the meaning of Department of Transportation 
regulatory policies and procedures (44 FR 11034, Feb. 26, 1979). 
Therefore, this rule has not been reviewed by the Office of Management 
and Budget (OMB). We anticipate the economic impact of this rulemaking 
will be so minimal that a full regulatory evaluation under paragraph 
10e of the regulatory policies and procedures of DOT is unnecessary.

Costs and Benefits of Safety Regulations

    Although a full regulatory evaluation is unnecessary because of the 
low economic impact of this rulemaking, FMCSA prepared a cost-benefit 
analysis of the impact of the various SAFETEA-LU provisions implemented 
by this final rule. This economic analysis examined each provision to 
determine whether it is economically significant, i.e., whether it is 
likely to result in a cost of $100 million or more in any given year. 
FMCSA determined that the rule provisions, considered both individually 
and in the aggregate, will neither rise to the level of economic 
significance nor significantly impact public safety. The details of 
this cost-benefit analysis are provided in the Regulatory Evaluation 
developed by the Agency, which is available in the docket for this 
rulemaking.
    Generally, the provisions of this final rule entail minor changes 
to operating procedures in specific segments of the industry that will 
have little if any impact on industry costs. Our analysis shows that 
the sec. 4114 provisions governing the intrastate operations of 
interstate carriers placed out of service as a result of an 
``unsatisfactory'' safety rating, and the accident and safety records 
of interstate carriers while operating in Canada and/or Mexico, will 
negatively impact a small number of carriers. In addition, some motor 
carriers who transport household goods will bear added costs due to 
this rule. These provisions will not impose costs of $100 million or 
more in any one year. Moreover, given the poor safety ratings of the 
small number of motor carriers affected by the intrastate operations 
provision, placing their intrastate operations out of service would 
likely produce modest safety benefits. FMCSA believes, therefore, that 
the collective impacts of provisions in this final rule will not be 
economically significant.
    Prior to prescribing any regulations under chapter 311 of title 49 
U.S.C., FMCSA must consider their costs and benefits ``to the extent 
practicable and consistent with the purposes of'' that chapter. 49 
U.S.C. 31136(c)(2)(A). The changes in 49 U.S.C. 31144 made by sec. 4114 
of SAFETEA-LU are subject to this requirement. As indicated in the 
Regulatory Evaluation, these changes will result in a modest net safety 
benefit each year.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 
110 Stat. 857), FMCSA is not required

[[Page 36768]]

to prepare a final regulatory flexibility analysis under 5 U.S.C. 
604(a) for this final rule because the agency has not issued a notice 
of proposed rulemaking prior to this action.

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 2 U.S.C. 
1532) requires Federal agencies to assess the effects of their 
regulatory actions on State, local, and tribal governments and the 
private sector. The regulations adopted in this final rule, taken 
together, will not impose an unfunded Federal mandate resulting in the 
expenditure by State, local, or tribal governments, in the aggregate, 
or by the private sector, of $128.1 million or more (as adjusted for 
inflation) in any one year. Therefore, FMCSA is not required either to 
consult with elected State officials or to comply with other 
requirements of this statute.

Executive Order 13132 (Federalism Assessment)

    This final rule has been analyzed in accordance with the principles 
and criteria contained in Executive Order 13132, dated August 4, 1999 
(64 FR 43255, Aug. 10, 1999). The requirements being promulgated in 
this final rule are required by statute. Although the regulation 
implementing sec. 4114 of SAFETEA-LU may appear, from a technical 
standpoint, to preempt State law, the Agency promulgates this rule 
exercising no discretion, since the statutory provisions are self-
executing. Based on the preemptive effect of sec. 4114, FMCSA has 
consulted with elected State officials regarding the effects of this 
final rule. However, since this rule is not significant as defined by 
Executive Order 12866, no Federalism Summary Impact statement is 
required.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to the programs covered by this final rule.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-
3520), a Federal agency must obtain approval from OMB for each 
collection of information it conducts, sponsors, or requires through 
regulations. FMCSA analyzed each provision of this final rule and 
determined that certain provisions require changes to existing 
information collections (ICs). The IC revisions will require approval 
by OMB before taking effect. The affected ICs are titled ``Motor 
Carrier Safety Assistance Program'' (2126-0010), and ``Transportation 
of Household Goods; Consumer Protection'' (2126-0025).
    In November 2006, the Agency published a Federal Register notice 
providing a 60-day comment period on its intent to request OMB approval 
of the revised ICs (71 FR 67198, Nov. 20, 2006). This notice sought 
comment on the revisions to the two ICs referred to above, as well as a 
third--``Commercial Driver Licensing and Test Standards'' (2126-0011). 
FMCSA has since determined that this final rule will not affect the 
currently approved information collection in this third item.
    These two ICs affected by this final rule, and the total annual 
burden hours estimated by FMCSA, are as follows:
    OMB Control Number: 2126-0010.
    Title: Motor Carrier Safety Assistance Program.
    Type of Review: Revision of a currently approved collection.
    Respondents: State Grant Applicants.
    Number of Respondents: 52 (per quarter).
    Estimated Time per Response: 80 hours.
    Expiration Date of OMB Approval: November 30, 2007.
    Frequency: Quarterly (reports) and annually (grant application).
    Total Annual Burden: 11,232 hours.
    Form Numbers: MCSAP-1, MCSAP-2, and MCSAP-2A.
    OMB Control Number: 2126-0025.
    Title: Transportation of Household Goods; Consumer Protection.
    Type of Review: Revision of a currently approved collection.
    Respondents: Motor Carriers and Individual Shippers of Household 
Goods.
    Number of Respondents: 5,400.
    Estimated Time per Response: Varies from 30 minutes to distribute 
consumer publication to 150 minutes to conduct physical survey.
    Expiration Date of OMB Approval: August 31, 2008.
    Frequency: On occasion.
    Total Annual Burden: 4,552,737 hours.
    Form Number: MCSA-2P.
    The Agency received one comment in response to the November notice, 
which contained no substantive remarks pertaining to any of the 
information collections, and consequently was not incorporated into the 
supporting statement. Subsequently in April 2007, FMCSA published in 
the Federal Register a notice requesting public comme