Proposed Rules. Final rule

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BILLING CODE 6712-01-P DEPARTMENT OF TRANSPORTATION Federal Motor Carrier Safety Administration 49 CFR Parts 350, 360, 365, 372, 382, 383, 386, 387, 388, 390, 391, and 393 Motor Carrier Safety Regulations; Technical Amendments AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT. ACTION: Final rule. SUMMARY: The FMCSA is amending the Federal Motor Carrier Safety Regulations (FMCSRs) to update obsolete references and make certain grammatical corrections for clarity.

In addition, we are correcting an error in the final rule on Brake Performance Requirements for Commercial Motor Vehicles published on August 9, 2002 in the **Federal Register** . FMCSA is not making any substantive changes to its regulations by these technical amendments. EFFECTIVE DATE: This final rule is effective October 2, 2002. ADDRESSES: Ms. Janet Nunn, Office of Policy Plans and Regulation (MC-PRR), 202-366-2797, U.S. Department of Transportation, Federal Motor Carrier Safety Administration, 400 Seventh Street, SW., Washington, DC 20590.

Office hours are from 7:30 a.m. to 5 p.m., e.t., Monday through Friday, except Federal holidays. FOR FURTHER INFORMATION CONTACT: Janet Nunn,

(202)366-2797. SUPPLEMENTARY INFORMATION: Electronic Access An electronic copy of this document may be downloaded by using a computer, modem and suitable communications software from the Government Printing Office's Electronic Bulletin Board Service at 202-512-1661. Internet users may also reach the Office of the Federal Register Web site: *http://www.archives.gov/federal_register* ; and Government Printing Office Web page: *http://www.access.gpo.gov.* Summary of Changes Title 49 of the Code of Federal Regulations (CFR), chapter III, subchapter B, contains the Federal Motor Carrier Safety Regulations (FMCSRs) for truck and bus safety. This final rule corrects inaccurate references, citations, and technical errors resulting from statutory changes in laws governing interstate commerce. It also makes other editorial revisions for clarity. In the § 360.3(f) table, a filing fee has been added for applications involving the merger, transfer, or lease of operating rights of motor passenger and property carriers, property brokers, and household goods freight forwarders under 49 U.S.C. 10321 and 10926. The ICC Termination Act of 1995 (ICCTA) sunsetted the Interstate Commerce Commission

(ICC)and transferred the ICC's registration and insurance functions to the Secretary of Transportation, who delegated these functions to the Federal Highway Administration

(FHWA)in 1996 and redelegated them to FMCSA in 2000. Filing fees related to these functions were initially assessed under ICC regulations codified in 49 CFR part 1002. In February 1999, FHWA adopted its own filing fee and fee collection regulations in a new part 360 (64 FR 7134, February 12, 1999). The preamble to this rule stated that “(i)n this rulemaking proceeding the FHWA is adopting the ICC's fee regulations related to the recently transferred motor carrier functions without any substantive changes.” However, the rule inadvertently omitted the fee for transfers of operating authority codified at 49 CFR 1002.2(f)(25). Both FHWA and FMCSA have assessed this fee since 1996. Therefore, restoring the transfer fee to the fee table will impose no new burdens on the public. We are also amending part 360 by revising § 360.3(g)(2) to clarify that a credit card may be required in situations involving dishonored checks. In part 365, references to water carriers have been removed because the ICCTA did not transfer to the Secretary authority to register water carriers. The ICCTA also required the Secretary to register all freight forwarders, not just household goods freight forwarders. We have changed part 365 to reflect that fact. We have also changed § 365.105(b) to add a reference to FMCSA's do-it-yourself Web site as a means of obtaining OP-1 application forms. In § 387.39, we have modified two motor carrier financial responsibility forms to correct numerous obsolete references. These forms have been approved by the Office of Management and Budget under control number 2126-0008. Their current expiration date is June 30, 2003. In § 390.27, the Virgin Islands has been included in the table. In addition, two new notes have been added to direct Canadian and Mexican carriers where to obtain information. In § 391.41(a), a footnote has been added acknowledging a reciprocity agreement between the United States and Canada that provides for a valid Canadian commercial driver's license issued by a Canadian Province or Territory to be proof of medical fitness to drive commercial motor vehicles

(CMVs)in the United States, except in certain limited circumstances. Finally, a correction has been made to a final rule published on August 9, 2002 (67 FR 51770), pertaining to brake performance requirements for CMVs. Administrative Procedure Act This final rule was issued without using the notice and comment procedures contained at 5 U.S.C. 553(b), because these technical amendments merely correct and clarify existing regulations. They do not impose any new requirements on the regulated industry and are not substantive changes. For the same reasons, good cause exists under 5 U.S.C. 553(d) to dispense with the 30-day delay in the effective date requirement and the FMCSA is making the rule effective upon publication in the **Federal Register** . Executive Order 12866 (Regulatory Planning and Review) and DOT Regulatory Policies and Procedures The FMCSA has determined that this action is not a significant regulatory action under Executive Order 12866 or within the meaning of Department of Transportation regulatory policies and procedures. Therefore, this document was not reviewed by the Office of Management and Budget. Regulatory Flexibility Act (5 U.S.C. 601-612) These technical amendments will not have an economically significant effect on a substantial number of small entities ( *i.e.* , motor carriers), and therefore an economic analysis of this rule is not required. Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531 et seq. ) This rule does not impose a Federal mandate resulting in increased expenditures either by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (as adjusted for inflation) in any one year; nor does it significantly or uniquely affect small governments. Executive Order 12988 (Civil Justice Reform) This action meets applicable standards in section 3 of Executive Order 12988 to minimize litigation, eliminate ambiguity, and reduce burden. Executive Order 13045 (Protection of Children From Environmental Health Risks and Safety Risks) This rule is not an economically significant rule and does not concern an environmental risk to health or safety that may disproportionately affect children under Executive Order 13045. Executive Order 12630 (Taking of Private Property) This rule will not effect a taking of private property or otherwise have taking implications as specified in Executive Order 12630, governmental Actions and Interference with Constitutionally Protected Property Rights. Executive Order 13132 (Federalism) This final rule will not have federalism implications, as defined in Executive Order 13132, to warrant the preparation of a Federalism Assessment. It does not have 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 governments. Nothing in this document directly preempts any State law or regulations. Executive Order 12372 (Intergovernmental Review) Catalog of Federal Domestic Assistance Program Number 20.217, Motor Carrier Safety. The regulations implementing Executive Order 12372 regarding intergovernmental consultation of Federal program and activities do not apply to this action. Paperwork Reduction Act of 1995 (44 U.S.C. chapter 35) This final rule does not contain any information collections that are subject to review by the Office of Management and Budget under the Paperwork Reduction Act. National Environmental Policy Act The FMCSA has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 *et seq.* ) and has determined that this action does not have any effect on the quality of the environment. Small Business Regulatory Enforcement Fairness Act This final rule is exempt from congressional review under 5 U.S.C. 801, because these amendments merely update obsolete references and make minor editorial corrections to existing regulations where applicable. List of Subjects 49 CFR Part 350 Grant programs—transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements. 49 CFR Part 360 Administrative practice and procedure, Insurance, Motor carriers. 49 CFR Part 365 Administrative practice and procedure, Brokers, Buses, Freight forwarders, Motor carriers, Moving of household goods. 49 CFR Part 372 Agricultural commodities, buses, Cooperatives, Freight forwarders, Motor carriers, Moving of household goods, Seafood. 49 CFR Part 382 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, Highway safety, Motor carriers. 49 CFR Part 386 Administrative practice and procedure, Hazardous materials transportation, Highway safety, Motor carriers, Motor vehicle safety, Penalties. 49 CFR Part 387 Buses, Freight, Freight forwarders, Hazardous materials transportation, Highway safety, Insurance, Intergovernmental relations, Motor carriers, Motor vehicle safety, Moving of household goods, Penalties, Reporting and recordkeeping requirements, Surety bonds. 49 CFR Part 388 Highway safety, Intergovernmental relations, Motor carriers, Motor vehicle safety. 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, Highway safety, Motor carriers, Reporting and recordkeeping requirements, Safety, Transportation. 49 CFR Part 393 Highway safety, Motor carriers, Motor vehicle safety. The Amendments For the reasons set forth in the preamble, FMCSA amends Title 49 of the Code of Federal Regulations, chapter III, subchapter B, as set forth below. PART 350—COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM 1. Revise the authority citation for part 350 to read as follows: Authority: 49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-31141, 31161, 31310-31311, 31502; and 49 CFR 1.73. § 350.201 [Amended] 2. Amend § 350.201 as follows: a. Amend paragraph

(m)by removing “title” and add, in its place, “title 23”; b. Amend paragraph (t)(1) by removing “parts 356 and” and add, in its place, “part”. § 350.211 [Amended] 3. Amend § 350.211 by revising the phrase “Ensure that” in paragraph

(15)to read “the State will ensure that”. § 350.213 [Amended] 4. Amend § 350.213(b) introductory text by revising the last sentence to read as follows: § 350.213 What must a State CVSP include?

(b)* * * The narrative section must include a description of how the State supports the activities identified in § 350.201(1) and (t).” PART 360—FEES FOR MOTOR CARRIER REGISTRATION AND INSURANCE 5. The authority citation for part 360 continues to read as follows: Authority: 31 U.S.C. 9701, 49 U.S.C. 13908(c) and 14504(c)(2); and 49 CFR 1.73. § 360.3 [Amended] 6. Amend § 360.3 as follows: a. Amend § 360.3(a)(2) by inserting “, Insurance Compliance Division” before “(MC-ECI)”; b. Amend paragraph (a)(2)(iii) introductory text by removing “Office of Data Analysis and Information Systems, Licensing and Insurance Division” and add, in its place, “Office of Enforcement and Compliance, Insurance Division (MC-ECI)”; c. Amend § 360.3(f) by adding new paragraph

(8)under Part I of the table to read as follows: § 360.3 Filing fees.

(f)Schedule of filing fees. Type of proceeding Fee Part I: Licensing: * * * * * * *

(8)An application involving the merger, transfer, or lease of the operating rights of motor passenger and property carriers, property brokers, and household goods freight forwarders under 49 U.S.C. 10321 and 10926 300 d. Amend § 360.3(g)(2) by revising the phrase “or a money order” to read “, money order, or credit card”. PART 365—RULES GOVERNING APPLICATIONS FOR OPERATING AUTHORITY 7. The authority citation for part 365 continues to read as follows: Authority: 5 U.S.C. 553 and 559; 16 U.S.C. 1456; 49 U.S.C. 13101, 13301, 13901-13906, 14708, 31138, and 31144; and 49 CFR 1.73. § 365.101 [Amended] 8. Amend § 365.101 as follows: a. Amend § 365.101(b) by removing the words “household goods.” b. Amend § 365.101 by removing and reserving paragraph (c). c. Amend § 365.101(g) by removing the words “and water.” § 365.105 [Amended] 9. Amend § 365.105 as follows: a. Amend § 365.105(a) by removing “of household goods” immediately following “Form OP-1(FF) for freight forwarders”; b. Revise § 365.105(b) to read as follows: § 365.105 Starting the application process; Form OP-1.

(b)Obtain forms at a FMCSA Division Office in each State or at one of the FMCSA Service Centers. Addresses and phone numbers for the Division Offices and Service Centers can be found at: *http://www.fmcsa.dot.gov/aboutus/fieldoffices.* The forms and information about filing procedures can be downloaded at: *http://www.fmcsa.dot.gov/factsfigs/formspubs;* and from the do-it-yourself website at: *http://www.diy.dot.gov.* § 365.107 [Amended] 10. Amend § 365.107 as follows: a. Amend paragraph

(e)introductory text by removing “household goods” before “freight forwarder”; and by removing “, water contract carrier”; b. Remove paragraph

(f)of § 365.107; c. Redesignate paragraph

(g)as paragraph (f); d. Amend newly designated paragraph

(f)by removing “and water.” e. Redesignate the note at the end of § 365.107 as paragraph (g). f. Amend newly designated paragraph

(g)by inserting “and” after “Form OP-1 MX for Mexican property carriers”; removing “, and Form OP-(W) for water carriers”; and removing the last sentence. § 365.109 [Amended] 11. Amend § 365.109(a)(7) by removing “on file with the FMCSA and.” § 365.401 [Amended] 12. Amend § 365.401 as follows: a. Remove “water carriers,”; b. Remove “Interstate Commerce Commission” and add, in its place, “FMCSA”; c. Remove “1002.2(f)(25)” and add, in its place, “360.3(f)(8).” § 365.403 [Amended] 13. Amend § 365.403 as follows: a. Amend § 365.403(b)(1) by removing “and water”; b. Amend § 365.403(b)(2) by removing “household goods.” § 365.405 [Amended] 14. Amend § 365.405 as follows: a. Revise § 365.405(a)(1) to read as follows: § 365.405 Applications.

(a)*Procedural requirements.*

(1)At least 10 days before consummation, an original and two copies of a properly completed Form OP-FC-1 and any attachments ( *see* paragraph (b)(1)(viii) of this section) must be filed with the Federal Motor Carrier Safety Administration, Licensing Division (MC-RIS), 400 Seventh Street, SW., Room 8214, Washington, DC 20590. b. Amend § 365.405(a)(2) by removing the words “tarriffs (if applicable),”; by removing “1312”; and by removing the sentence “In addition, contract carriers must comply with the FMCSA's regulations concerning contracts at 49 CFR part 1053.”; c. Amend § 365.405(b)(1)(ii) by removing “that portion of”. § 365.411 [Amended] 15. Amend § 365.411(b) by removing “Office of the Secretary, Case Control Branch, Interstate Commerce Commission, Washington, DC 20423” and add, in its place, ‘FMCSA Licensing Division (MC-RIS), 400 Seventh Street, SW., Room 8214, Washington, DC 20590’ ” § 365.413 [Amended] 16. Revise the heading of § 365.413 as set forth below: § 365.413 Procedures for changing the name or business form of a motor carrier, freight forwarder, or property broker. PART 372—EXEMPTIONS, COMMERCIAL ZONES, AND TERMINAL AREAS 17. The authority citation for part 372 continues to read as follows: Authority: 49 U.S.C. 13504 and 13506; and 49 CFR 1.73. § 372.303 [Amended] 18. Amend § 372. 303 by revising the heading as set forth below: § 372.303 Terminal areas of motor carriers and freight forwarders at unincorporated communities served. PART 377—PAYMENT OF TRANSPORTATION CHARGES 19. The authority citation for part 377 continues to read as follows: Authority: 49 U.S.C. 13101, 13301, 13701, 13702, 13706, 13707; and 14101; and 49 CFR 1.73 § 377.215 [Amended] 20. Amend § 377.215 by removing from the heading of paragraph

(c)the word “House” and add, in its place, “ *Household* ” PART 382—CONTROLLED SUBSTANCES AND ALCOHOL USE AND TESTING 21. The authority citation for part 382 continues to read as follows: Authority: 49 U.S.C. 31133, 31136, 31301 *et seq.,* 31502; and 49 CFR 1.73. § 382.305 [Amended] 22. Amend § 382.305(i)(3) by removing the word “testing” immediately after the words “shall be” and adding, in its place, “tested.” § 382.401 [Amended] 22a. Amend § 382.401(d) by removing the word “employee's” and adding in its place “employer's” PART 383—COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND PENALTIES 23. Revise the authority citation for part 383 to read as follows: Authority: 49 U.S.C. 521, 31136, 31301 *et seq.,* 31502; Sec. 214 of Pub. L. 106-159, 113 Stat. 1766; and 49 CFR 1.73. § 383.3 [AMENDED] 24. Amend § 383.3(f)(3)(i)(A) by removing “383.21(b))” and add, in its place, “383.21”. PART 386—RULES OF PRACTICE FOR MOTOR CARRIER, BROKER, FREIGHT FORWARDER, AND HAZARDOUS MATERIALS PROCEEDINGS 25. The authority catation for part 386 continues to read as follows: Authority: 49 U.S.C. 113, chapters 5, 51, 59, 131-141, 145-149, 311, 313, and 315; sec. 206, Pub. L. 106-159, 113 Stat. 1763; and 49 CFR 1.45 and 1.73. § 386.2 [Amended] 26. Amend § 386.2 in the definition of *Civil forfeiture proceedings* by removing “FMCSA” and adding, in its place, “ICC”. § 386.22 [Amended] 27. Amend § 386.22 by removing in the first sentence “has filed an election not to contest under § 386.15(a), or”. § 386.71 [Amended] 28. Amend § 386.71 by removing “13502” and add, in its place, “31502”. § 386.82 [Amended] 29. Amend § 386.82(a)(4) by removing “386.72(b)(3)” and add, in its place, “386.72(b)(1)” Appendix B to Part 386 [Amended] 30. Amend paragraph

(f)of appendix B to part 386 by removing “$27,500” and by adding, in its place “$10,000”. PART 387—MINIMUM LEVELS OF FINANCIAL RESPONSIBILITY FOR MOTOR CARRIERS 31. The authority citation for part 387 continues to read as follows: Authority: 49 U.S.C. 13101, 13301, 13906, 14701, 31138, and 31139; and 49 CFR 1.73. § 387.9 [Amended] 32. In § 387.9, amend the table under the heading “Schedule of Limits—Public Liability,” column 1, in paragraphs

(1)through (3), by removing “10,000” and add, in its place, “10,001”. § 387.39 [Amended] 33. In § 387.39, revise the form titled “Endorsement For Motor Carrier Policies of Insurance for Public Liability Under Section 18 of the Bus Regulatory Reform Act of 1982” to read as follows: ER02OC02.001 34. In § 387.39, revise the form titled “Motor Carrier Public Liability Surety Bond Under Section 18 of the Bus Regulatory Reform Act of 1982” to read as follows: ER02OC02.002 § 387.303 [Amended] 35. Amend § 387.303, paragraph (b)(2) table, column 1, in paragraphs

(a)through (c), by removing “10,000” and add, in its place, “10,001”. PART 388—COOPERATIVE AGREEMENTS WITH STATES 36. The authority citation for part 388 continues to read as follows: Authority: 49 U.S.C. 113 and 502; 49 CFR 1.73. 37. In part 388, remove “Regional Director of Motor Carriers” wherever it appears and add, in its place, “Field Administrator”. PART 390—FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL 38. The authority citation for part 390 continues to read as follows: Authority: 49 U.S.C. 13301, 13902, 31132-31133, 31136, 31502, 31504; sec. 204, Pub. L. 104-88, 109 Stat. 803, 941 (49 U.S.C. 701 note); sec. 217, Pub. L. 105-159, 113 Stat. 1748, 1767; and 49 CFR 1.73. § 390.27 [Amended] 39. In § 390.27: a. Amend the table, in the middle column, under the heading **Territory included** , in the territory covered by the Eastern Service Center, by inserting “Virgin Islands,” before **WV** ; b. Amend § 390.27 by adding notes 1 and 2 at the end of the table to read as follows: § 390.27 Locations of motor carrier safety service centers. Note 1: Canadian carriers, for information regarding proper service center, contact a FMCSA division (State office in AK, ME, MI, MT, NY, ND, VT, or WA. Note 2: Mexican carriers, for information regarding proper service center, contact a FMCSA division (State) office in AZ, CA, NM, or TX. PART 391—QUALIFICATIONS OF DRIVERS 40. The authority citation for part 391 continues to read as follows: Authority: 49 U.S.C. 322, 504, 31133, 31136, and 31502; and 49 CFR 1.73. § 391.41 [Amended] 41. Amend § 391.41(a) by adding a footnote at the end to read as follows: § 391.41 Physical qualifications for drivers.

(a)* * * The United States and Canada entered into a Reciprocity Agreement, effective March 30, 1999, recognizing that a Canadian commercial driver's license is proof of medical fitness to drive. Therefore, Canadian commercial motor vehicle

(CMV)drivers are no longer required to have in their possession a medical examiner's certificate if the driver has been issued, and possesses, a valid commercial driver's license issued by a Canadian Province or Territory. However, Canadian drivers who are insulin-using diabetics, who have epilepsy, or who are hearing impaired as defined in § 391.41(b)(11) are not qualified to drive CMVs in the United States. Furthermore, Canadian drivers who do not meet the medical fitness provisions of the Canadian National Safety Code for Motor Carriers but who have been issued a waiver by one of the Canadian Provinces or Territories are not qualified to drive CMVs in the United States. § 391.49 [Amended] 42. Amend § 391.49(a) by removing “State Director” and adding, in its place, “Division Administrator”. § 391.65 [Amended] 43. Amend § 391.65(a)(2)(vii), in the certificate, under (Signature of Driver), by removing “391.3(c)” and adding, in its place, “390.5”. PART 393—PARTS AND ACCESSORIES NECESSARY FOR SAFE OPERATION 44. The authority citation for part 393 continues to read as follows: Authority: 49 U.S.C. 1041(b) of Pub. L. 102-240, 105 Stat. 1914, 49 U.S.C. 31136, and 31502; and 49 CFR 1.73. § 393.48 [Amended] 45. Amend § 393.48(c)(2) by removing the authority citation following paragraph (c)(2). § 393.52 [Amended] 46. Remove “53.5” and add, in its place, “43.5” in § 393.52(d)—Vehicle brake performance table, in second column, under heading “Braking force as a percentage of gross vehicle or combination weight.” § 393.86 [Amended] 47. Amend § 393.86(b)(3), in the heading, by removing “ *(g)* ” and adding, in its place, “ *(b)”.* Issued on: September 25, 2002. Allan M. Fisher, Associate Administrator for Administration and Chief Financial Officer. [FR Doc. 02-24728 Filed 9-27-02; 3:15 pm]

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