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

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE7-11717

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** July 5, 2007
- **Citation:** 72 FR 36760

## Text

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

transportation of household goods.
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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

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.
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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. § 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

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.

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 § 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 § 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

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 §§ 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 § 350.201, and amend § 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 § 350.211, which provides the required format of the certification necessary for receipt of MCSAP Basic Program funding. The revisions to § 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 § 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 § 350.105 but also in § 350.313(c). The set-asides for High Priority and New Entrant grants provided in sec. 4107(a) and (b), respectively, are implemented in § 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 § 350.319(d).

Similarly, § 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 § 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 § 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 § 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 § 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 § 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 §§ 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 § 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 § 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 § 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 § 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
http://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 § 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

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
http://www.protectyourmove.gov/documents/moving-rights-v9-final.pdf.

We amend §§ 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 §§ 375.401(a)(1) and (2). Amended §§ 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 §§ 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 §§ 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 § 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 § 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 § 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 § 383.51 (§ 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 § 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 § 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 §§ 384.401(a)(2) and (b)(2) and renumbers the preceding paragraphs accordingly. Like the previously discussed § 350.217, also being removed in this rule, §§ 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 § 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 §§ 385.7, 385.13, 385.17(g), and appendix B to part 385 (in new paragraph (f) and amended § II(B)). Minor editorial revisions are included in amended § 385.17(g) and § 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 §§ 385.7(c), (d), (f), and (g).

We amend § 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 § 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

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 § 390.3(f) the exception for drivers responding to emergency conditions, and by adding in § 390.5 a definition for “emergency condition requiring immediate response.” As provided in §§ 382.103(c) and 383.3(b), the exceptions in § 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 §§ 395.1(k)(2) and (n), respectively. Sec. 4133 is implemented by adding § 395.1(p), while the sec. 4146 exemption concerning the transportation of grapes during the harvest period in New York is implemented by adding § 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

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 comment to OMB within 30 days on the requested approval of the IC revisions (72 FR 20164, April 23, 2007).

National Environmental Policy Act

The Agency analyzed this final rule for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321
et seq.
), and determined under FMCSA environmental procedures Order 5610.1, published March 1, 2004 (69 FR 9680), that all except two provisions of the rule are categorically excluded (CE) based on Appendix 2 of the FMCSA Order. Not categorically excluded from environmental analysis are (1) the requirements in part 385 concerning the “accident record and safety inspection record” of motor carrier operations in commerce and the “accident record and safety inspection record” of interstate carriers while operating in Canada and/or Mexico (sec. 4114 of SAFETEA-LU) and (2) the hours-of-service exemptions in part 395 for operators of CMVs in certain defined operations (sec. 4130, 4132, 4133, and 4146 of SAFETEA-LU).

FMCSA conducted an Environmental Assessment (EA) to analyze the impacts of these two provisions. The Agency's EA finds that the provisions collectively will have no significant environmental impacts. It includes a chart indicating whether or not the provisions are categorically excluded from environmental analysis and the CE for each, where applicable.

Based upon the EA findings, no Environmental Impact Statement is required for this rule. The Agency prepared a Finding of No Significant Impact (FONSI) in accordance with the procedures in FMCSA Order 5610.1 and NEPA requirements and guidance.

We also analyzed this action under section 176(c) of the Clean Air Act (CAA), as amended (42 U.S.C. 7401
et seq.
), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's General Conformity requirement since it implements an administrative action or organizational change via the rulemaking process. See 40 CFR 93.153(c)(2). This action will not result in any significant emissions increase, nor does it have any potential to result in emissions that are above the general conformity rule's
de minimis
emission threshold levels. Moreover, it is reasonably foreseeable that the rule will not increase total commercial motor vehicle mileage, change the routing of commercial motor vehicles, change how commercial motor vehicles operate, or change the commercial motor vehicle fleet-mix of motor carriers. While the exemptions from the hours-of-service regulations in part 395 for drivers in certain defined operations may slightly

increase overall commercial motor vehicle mileage, this change should likewise be
de minimis
.

Executive Order 13211 (Energy Supply, Distribution, or Use)

FMCSA analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. This action is not a significant energy action within the meaning of section 4(b) of the Executive Order because as a procedural action it is not economically significant and will not have a significant adverse effect on the supply, distribution, or use of energy.

Executive Order 12898 (Environmental Justice)

FMCSA evaluated the environmental effects of this final rule in accordance with Executive Order 12898 and determined that there are no environmental justice issues associated with its provisions nor any collective environmental impact resulting from its promulgation. Environmental justice issues would be raised if there were “disproportionate” and “high and adverse impact” on minority or low-income populations. None of the alternatives analyzed in the Agency's EA, discussed under
National Environmental Policy Act
, would result in high and adverse environmental impacts.

Executive Order 13045 (Protection of Children)

FMCSA has analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. This rule is not economically significant and does not create an environmental risk to health or safety that would disproportionately affect children. Therefore, we have determined the rule is not a “covered regulatory action” as defined under Executive Order 13045.

Executive Order 12988 (Civil Justice Reform)

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

Executive Order 12630 (Taking of Private Property)

This rule will not effect a taking of private property or otherwise have takings implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

List of Subjects

49 CFR Part 350
Grant programs—transportation, Highway safety, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 375
Advertising, Arbitration, Consumer protection, Freight, Highways and roads, Insurance, Motor carriers, Moving of household goods, Reporting and recordkeeping requirements.

49 CFR Part 383
Administrative practice and procedure, Commercial driver's license, Commercial motor vehicles, Highway safety, Motor carriers.

49 CFR Part 384
Administrative practice and procedure, Commercial driver's license, Commercial motor vehicles, Highway safety, Motor carriers.

49 CFR Part 385
Administrative practice and procedure, Highway safety, Mexico, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 386
Administrative practice and procedure, Brokers, Freight forwarders, Hazardous materials transportation, Highway safety, Motor carriers, Motor vehicle safety, Penalties.

49 CFR Part 390
Highway safety, Intermodal transportation, Motor carriers, Motor vehicle safety, Reporting and recordkeeping requirements.

49 CFR Part 395
Highway safety, Motor carriers, Reporting and recordkeeping requirements.

In consideration of the foregoing, FMCSA amends 49 CFR parts 350, 375, 383, 384, 385, 386, 390, and 395 as set forth below:

PART 350—COMMERCIAL MOTOR CARRIER SAFETY ASSISTANCE PROGRAM

1. The authority citation for part 350 is revised to read as follows:

Authority:

49 U.S.C. 13902, 31100-31104, 31108, 31136, 31140-31141, 31144, 31161, 31310-31311, 31502; and 49 CFR 1.73.

2. Amend § 350.105 to revise the definition for “High Priority Activity Funds” and to add, in correct alphabetical placement, a definition for “New Entrant Funds” to read as follows:

§ 350.105
What definitions are used in this part?

High Priority Activity Funds
means funds provided for carrying out high-priority activities and projects that improve CMV safety and compliance with CMV safety regulations (including activities and projects that are national in scope), increase public awareness and education, demonstrate new technologies, and reduce the number and rate of accidents involving CMVs.

New Entrant Funds
means funds provided to State and local governments to conduct safety audits on New Entrant motor carriers under the New Entrant Safety Assurance Program.

3. Revise § 350.111 to read as follows:

§ 350.111
What constitutes traffic enforcement for the purpose of the MCSAP?
Traffic enforcement means enforcement activities of State or local officials, including the stopping of vehicles operating on highways, streets, or roads for moving violations of State or local motor vehicle or traffic laws (e.g., speeding, following too closely, reckless driving, improper lane changes).

4. Amend § 350.201 to revise paragraphs (b), (f), (s), and (t)(1) and to add paragraphs (w), (x), and (y) to read as follows:

§ 350.201
What conditions must a State meet to qualify for Basic Program Funds?

(b) Implement performance-based activities, including deployment of technology to enhance the efficiency and effectiveness of CMV safety programs.

(f) Maintain the aggregate expenditure of funds by the State and its political subdivisions, exclusive of Federal funds, for CMV safety programs eligible for funding under this part, at a level at least equal to the average level of expenditure for the 3 full fiscal years beginning after October 1 of the year 5 years prior to the beginning of each Government fiscal year.

(s) Establish a program to ensure that accurate, complete, and timely motor carrier safety data are collected and reported, and ensure the State's participation in a national motor carrier

safety data correction system prescribed by FMCSA.

(t)(1) Enforce registration (i.e., operating authority) requirements under 49 U.S.C. 13902, 49 CFR part 365, 49 CFR part 368, and 49 CFR 392.9a by prohibiting the operation of (i.e., placing out of service) any vehicle discovered to be operating without the required operating authority or beyond the scope of the motor carrier's operating authority.

(w) Include in the training manual for the licensing examination to drive a CMV and the training manual for the licensing examination to drive a non-CMV information on best practices for driving safely in the vicinity of non-CMVs and CMVs.

(x) Conduct comprehensive and highly visible traffic enforcement and CMV safety inspection programs in high-risk locations and corridors.

(y) 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 maintenance facility, destination, or other location where a motor carrier may make a planned stop.

5. Amend § 350.211 to revise paragraphs 8., 11., and 13. through 17., and to add paragraphs 18., 19., 20., and 21. to read as follows:

§ 350.211
What is the format of the certification required by § 350.209?

8. The State must maintain the average aggregate expenditure of the State and its political subdivisions, exclusive of Federal assistance and State matching funds, for CMV safety programs eligible for funding under the Basic program at a level at least equal to the average level of expenditure for the 3 full fiscal years beginning after October 1 of the year 5 years prior to the beginning of each Government fiscal year. These expenditures must cover at least the following four program areas, as applicable:

a. Motor carrier safety programs in accordance with 49 CFR 350.109.

b. Size and weight enforcement programs in accordance with 49 CFR 350.309(c)(1).

c. Drug interdiction enforcement programs in accordance with 49 CFR 350.309(c)(2).

d. Traffic safety programs in accordance with 49 CFR 350.309(d).

11. The State will establish a program to provide FMCSA with accurate, complete, and timely reporting of motor carrier safety information that includes documenting the effects of the State's CMV safety programs; participate in a national motor carrier safety data correction program (DataQs); participate in SAFETYNET; and ensure information is exchanged in a timely manner with other States.

13. The State has undertaken efforts to emphasize and improve enforcement of State and local traffic laws as they pertain to CMV safety.

14. The State will ensure that MCSAP agencies have departmental policies stipulating that roadside inspections will be conducted at locations that are adequate to protect the safety of drivers and enforcement personnel.

15. The State will ensure that requirements relating to the licensing of CMV drivers are enforced, including checking the status of CDLs.

16. The State will ensure that MCSAP-funded personnel, including sub-grantees, meet the minimum Federal standards set forth in 49 CFR part 385, subpart C for training and experience of employees performing safety audits, compliance reviews, or driver/vehicle roadside inspection.

17. The State will enforce operating authority requirements under 49 CFR 392.9a by prohibiting the operation of any vehicle discovered to be operating without the required operating authority or beyond the scope of the motor carrier's operating authority.

18. The State will enforce the financial responsibility requirements under 49 CFR part 387 as applicable to CMVs subject to the provisions of 49 CFR 392.9a.

19. The State will include, in 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 safe driving in the vicinity of noncommercial and commercial motor vehicles.

20. The State will conduct comprehensive and highly visible traffic enforcement and CMV safety inspection programs in high-risk locations and corridors.

21. The State will ensure that, except in the case of an imminent or obvious safety hazard, 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 motor carriers may make planned stops.

Date

Signature

§ 350.217
[Removed]

6. Remove § 350.217.

7. Amend § 350.301 to revise paragraph (a) to read as follows:

§ 350.301
What level of effort must a State maintain to qualify for MCSAP funding?
(a) The State must maintain the average aggregate expenditure of the State and its political subdivisions, exclusive of Federal funds and State matching funds, for CMV safety programs eligible for funding under this part at a level at least equal to the average level of expenditure for the 3 full fiscal years beginning after October 1 of the year 5 years prior to the beginning of each Government fiscal year.

8. Amend § 350.309 to revise paragraph (c) and to add paragraph (d) to read as follows:

§ 350.309
What activities are eligible for reimbursement under the MCSAP?

(c) The following two activities, when accompanied by an appropriate North American Standard Inspection and inspection report:

(1) Enforcement of CMV size and weight limitations at locations other than fixed weight facilities; at specific locations such as steep grades or mountainous terrains where the weight of a CMV can significantly affect the safe operation of the vehicle; or at ports where intermodal shipping containers enter and leave the United States.

(2) Detection of the unlawful presence of a controlled substance in a CMV or on the person of any occupant (including the operator) of the vehicle.

(d) Documented enforcement of State traffic laws and regulations designed to promote the safe operation of CMVs, including documented enforcement of such laws and regulations relating to non-CMVs when necessary to promote the safe operation of CMVs, if the number of motor carrier safety activities (including roadside safety inspections) conducted in the State is maintained at a level at least equal to the average level of such activities conducted in the State in fiscal years 2003, 2004, and 2005. The State may not use more than 5 percent of its MCSAP Basic Program funds for enforcement activities relating to non-CMVs unless the Administrator determines that a higher percentage will result in significant increases in CMV safety.

9. Amend § 350.313 to revise paragraphs (a)(1), (a)(2), and (c) and to add paragraph (d) to read as follows:

§ 350.313
How are MCSAP funds allocated?
(a) * * *

(1) An amount of the MCSAP funds appropriated for each fiscal year up to the maximum allowed by law may be distributed for High Priority Activities and Projects at the discretion of the Administrator.

(2) An amount of the MCSAP funds appropriated for each fiscal year up to the maximum allowed by law may be distributed for safety audits of New Entrant motor carriers under the New Entrant Safety Assurance Program at the discretion of the Administrator.

(c) The funding provided under paragraph (a)(1) of this section may be made available 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. At least 90 percent of the amount set aside in a fiscal year shall be awarded in grants to State agencies and local government agencies.

(d) The funding provided under paragraph (a)(2) of this section may be made available to State and local governments. If the Administrator determines that a State or local government is not able to use government employees to conduct New Entrant motor carrier audits, the Administrator may use the funds under paragraph (a)(2) to conduct audits for such State or local governments.

10. Amend § 350.319 to revise paragraph (d) and to add paragraph (e) to read as follows:

§ 350.319
What are permissible uses of High Priority Activity Funds?

(d) The Administrator may set aside an amount of MCSAP funding up to the maximum allowed by law for these projects and activities in each fiscal year.

(e) FMCSA will reimburse up to 80 percent of the eligible costs in the administration of an approved project plan, except that approved public information and education activities may be reimbursed up to 100 percent of the eligible costs.

11. Revise § 350.321 to read as follows:

§ 350.321
What are permissible uses of New Entrant Funds?
(a) These funds may be used to conduct safety audits on New Entrant motor carriers under the New Entrant Safety Assurance Program.

(b) New Entrant funds will be allocated, at the discretion of FMCSA, to State and local governments.

(c) FMCSA will notify States when such funds are available.

(d) The Administrator may designate up to the maximum amount allowed by law of MCSAP funding for these projects in each fiscal year. FMCSA will reimburse up to 100 percent of the eligible costs in the administration of an approved project plan.

12. Amend § 350.329 to revise the heading and republish paragraphs (a) and (b) to read as follows:

§ 350.329
How may a State or local agency qualify for High Priority or New Entrant Funds?
(a) States must meet the requirements of § 350.201, as applicable.

(b) Local agencies must meet the following nine conditions:

(1) Prepare a proposal in accordance with § 350.213, as applicable.

(2) Coordinate the proposal with the State lead MCSAP agency to ensure the proposal is consistent with State and national CMV safety program priorities.

(3) Certify that your local jurisdiction has the legal authority, resources, and trained and qualified personnel necessary to perform the functions specified in the proposal.

(4) Designate a person who will be responsible for implementation, reporting, and administering the approved proposal and will be the primary contact for the project.

(5) Agree to fund up to 20 percent of the proposed request.

(6) Agree to prepare and submit all reports required in connection with the proposal or other conditions of the grant.

(7) Agree to use the forms and reporting criteria required by the State lead MCSAP agency and/or the FMCSA to record work activities to be performed under the proposal.

(8) Certify that the local agency will impose sanctions for violations of CMV and driver laws and regulations that are consistent with those of the State.

(9) Certify participation in national data bases appropriate to the project.

PART 375—TRANSPORTATION OF HOUSEHOLD GOODS IN INTERSTATE COMMERCE; CONSUMER PROTECTION REGULATIONS

13. The authority citation for part 375 is revised to read as follows:

Authority:

5 U.S.C. 553; 49 U.S.C. 13102, 13301, 13704, 13707, 14104, 14706, 14708; and 49 CFR 1.73.

14. Revise § 375.101 to read as follows:

§ 375.101
Who must follow the regulations in this part?
You, a household goods motor carrier engaged in the interstate transportation of household goods, must follow the regulations in this part when offering your services to individual shippers. You are subject to this part only when you transport household goods for individual shippers by motor vehicle in interstate commerce. Interstate commerce is defined in § 390.5 of this subchapter.

15. Amend § 375.103 to revise the definitions of “individual shipper” and “you and your” and to add, in correct alphabetical placement, the definition for “household goods motor carrier” to read as follows:

§ 375.103
What are the definitions of terms used in this part?

Household goods motor carrier
means—

(1) In general, a motor carrier that, in the ordinary course of its business of providing transportation of household goods, offers some or all of the following additional services:

(i) Binding and nonbinding estimates;

(ii) Inventorying;

(iii) Protective packing and unpacking of individual items at personal residences;

(iv) Loading and unloading at personal residences.

(2) The term includes any person considered to be a household goods motor carrier under regulations, determinations, and decisions of the Federal Motor Carrier Safety Administration in effect on the date of enactment of the Household Goods Mover Oversight Enforcement and Reform Act of 2005 (August 10, 2005).

(3) The term does not include any motor carrier providing transportation of household goods in containers or trailers that are entirely loaded and unloaded by an individual other than an employee or agent of the motor carrier.

Individual shipper
means any person who—

(1) Is the shipper, consignor, or consignee of a household goods shipment;

(2) Is identified as the shipper, consignor, or consignee on the face of the bill of lading;

(3) Owns the goods being transported; and

(4) Pays his or her own tariff transportation charges.

You
and
your
means a household goods motor carrier engaged in the interstate transportation of household goods and its household goods agents.

16. Amend § 375.201 to revise paragraph (b), to add paragraph (c), to redesignate paragraphs (c) and (d) as paragraphs (d) and (e), and to revise newly designated paragraph (d), to read as follows:

§ 375.201
What is my liability for loss and damage when I accept goods from an individual shipper?

(b) Full Value Protection Obligation—In general, your liability is for the household goods that are lost, damaged, destroyed, or otherwise not delivered to

the final destination in an amount equal to the replacement value of the household goods. The maximum amount is the declared value of the shipment. The declared value is subject to rules issued by the Surface Transportation Board (STB) and applicable tariffs.

(c) If the shipper waives, in writing, your liability for the full value of the household goods, then you are liable for loss of, or damage to, any household goods to the extent provided in the STB released rates order. Contact the STB for a current copy of the Released Rates of Motor Carrier Shipments of Household Goods. The rate may be increased annually by the motor carrier based on the U.S. Department of Commerce's Cost of Living Adjustment.

(d) As required by § 375.303(g), you may have additional liability if you sell liability insurance and fail to issue a copy of the insurance policy or other appropriate evidence of insurance.

(e) You must, in a clear and concise manner, disclose to the individual shipper the limits of your liability.

17. Amend § 375.211 to revise the introductory text to paragraph (a), paragraph (a)(7), and paragraph (a)(8) to read as follows:

§ 375.211
Must I have an arbitration program?
(a) You must have an arbitration program for individual shippers to resolve disputes about property loss and damage and disputes about whether carrier charges in addition to those collected at delivery must be paid. You must establish and maintain an arbitration program with the following 11 minimum elements:

(7) Arbitration must be binding for claims of $10,000 or less, if the individual shipper requests arbitration.

(8) Arbitration must be binding for claims of more than $10,000, if the individual shipper requests arbitration and the carrier agrees to it.

18. Revise § 375.213 to read as follows:

§ 375.213
What information must I provide to a prospective individual shipper?
(a) When you provide the written estimate to a prospective individual shipper, you must also provide the individual shipper with a copy of Department of Transportation publication FMCSA-ESA-03-005 (or its successor publication) entitled “Ready to Move?”.

(b) Before you execute an order for service for a shipment of household goods, you must furnish to your prospective individual shipper all five of the following documents:

(1) The contents of appendix A of this part, entitled “Your Rights and Responsibilities When You Move” (Department of Transportation publication FMCSA-ESA-03-006, or its successor publication).

(2) A concise, easy-to-read, accurate estimate of your charges.

(3) A notice of the availability of the applicable sections of your tariff for the estimate of charges, including an explanation that individual shippers may examine these tariff sections or have copies sent to them upon request.

(4) A concise, easy-to-read, accurate summary of your arbitration program.

(5) A concise, easy-to-read, accurate summary of your customer complaint and inquiry handling procedures. Included in this description must be both of the following two items:

(i) The main telephone number the individual shipper may use to communicate with you.

(ii) A clear and concise statement concerning who must pay for telephone calls.

(c) To comply with paragraph (b)(1) of this section, you must ensure that the text and general order of the document you produce and distribute to prospective individual shippers are consistent with the text and general order of appendix A to this part. The following three items also apply:

(1) If we, the Federal Motor Carrier Safety Administration, choose to modify the text or general order of appendix A, we will provide the public appropriate notice in the
Federal Register
and an opportunity for comment as required by part 389 of this chapter before making you change anything.

(2) If you publish the document, you may choose the dimensions of the publication as long as the type font size is 10 points or larger and the size of the booklet is at least as large as 36 square inches (232 square centimeters).

(3) If you publish the document, you may choose the color and design of the front and back covers of the publication. The following words must appear prominently on the front cover in 12-point or larger bold or full-faced type: “Your Rights and Responsibilities When You Move. Furnished by Your Mover, as Required by Federal Law.” You may substitute your name or trade name in place of “Your Mover” if you wish (for example,
Furnished by XYZ Van Lines, as Required by Federal Law
).

(d) Paragraphs (c)(2) and (c)(3) of this section do not apply to exact copies of appendix A published in the
Federal Register
or the Code of Federal Regulations.

19. Amend § 375.401 by redesignating paragraphs (a) through (g) as paragraphs (b) through (h), adding paragraph (a), and revising redesignated paragraphs (b) and (e) to read as follows:

§ 375.401
Must I conduct a physical survey and provide an estimate of the charges?

(a) You must conduct a physical survey of the household goods to be transported and provide the prospective individual shipper with a written estimate, based on the physical survey, of the charges for the transportation and all related services. There are
two exceptions
to the requirement to conduct a physical survey:

(1) If the household goods are located beyond a 50-mile radius of the location of the household goods motor carrier's agent preparing the estimate, the requirement to base the estimate on a physical survey does not apply.

(2) An individual shipper may elect to waive the physical survey. The waiver agreement is subject to the following requirements:

(i) It must be in writing;

(ii) It must be signed by the shipper before the shipment is loaded; and

(iii) The household goods motor carrier must retain a copy of the waiver agreement as an addendum to the bill of lading with the understanding that the waiver agreement will be subject to the same record retention requirements that apply to bills of lading, as provided in § 375.505(d).

(b) Before you execute an order for service for a shipment of household goods for an individual shipper, you must provide a written estimate of the total charges and
indicate whether it is a binding or a non-binding estimate
, as follows:

(1)
A binding estimate
is an agreement made in advance with your individual shipper. It guarantees the total cost of the move based upon the quantities and services shown on your estimate, which shall be based on the physical survey of the household goods, if required. You may impose a charge for providing a written binding estimate. The binding estimate must indicate that you and the shipper are bound by the charges.

(2)
A non-binding estimate
is what you believe the total cost will be for the move, based upon both the estimated weight or volume of the shipment and the accessorial services requested and the physical survey of the household goods, if required. A non-binding estimate is not binding on you. You will base the final charges upon the actual weight of the individual shipper's shipment and the tariff provisions in

effect. You may not impose a charge for providing a non-binding estimate.

(e) You must determine charges for any accessorial services such as elevators, long carries, etc., before preparing the order for service and the bill of lading for binding or non-binding estimates. If you fail to ask the shipper about such charges and fail to determine such charges before preparing the order for service and the bill of lading, you must deliver the goods and bill the shipper after 30 days for the additional charges, except that you may collect at delivery charges for impracticable operations that do not exceed 15 percent of all other charges due at delivery.

20. Amend § 375.403 to revise paragraphs (a) and (b) to read as follows:

§ 375.403
How must I provide a binding estimate?
(a) You may provide a guaranteed binding estimate of the total shipment charges to the individual shipper, so long as it is provided for in your tariff. The individual shipper must pay the amount for the services included in your estimate. You must comply with the following 11 requirements:

(1) You must base the binding estimate on the physical survey unless one of the exceptions provided in § 375.401(a)(1) and (2) applies.

(2) You must provide the binding estimate in writing to the individual shipper or other person responsible for payment of the freight charges.

(3) You must retain a copy of each binding estimate as an attachment to be made an integral part of the bill of lading contract.

(4) You must clearly indicate upon each binding estimate's face that the estimate is binding upon you and the individual shipper. Each binding estimate must also clearly indicate on its face that the charges shown apply only to those services specifically identified in the estimate.

(5) You must clearly describe binding-estimate shipments and all services you are providing.

(6) If it appears an individual shipper has tendered additional household goods or requires additional services not identified in the binding estimate, you are not required to honor the estimate. If an agreement cannot be reached as to the price or service requirements for the additional goods or services, you are not required to service the shipment. However, if you do service the shipment, before loading the shipment you must do one of the following three things:

(i) Reaffirm your binding estimate.

(ii) Negotiate a revised written binding estimate listing the additional household goods or services.

(iii) Agree with the individual shipper, in writing, that both of you will consider the original binding estimate as a non-binding estimate subject to § 375.405.

(7) Once you load a shipment, failure to execute a new binding estimate or a non-binding estimate signifies you have reaffirmed the original binding estimate. You may not collect more than the amount of the original binding estimate, except as provided in paragraphs (a)(8) and (9) of this section.

(8) If you believe additional services are necessary to properly service a shipment after the bill of lading has been issued, you must inform the individual shipper what the additional services are before performing those services. You must allow the shipper at least one hour to determine whether he or she wants the additional services performed. If the individual shipper agrees to pay for the additional services, you must execute a written attachment to be made an integral part of the bill of lading contract and have the individual shipper sign the written attachment. This may be done through fax transmissions; e-mail; overnight courier; or certified mail, return receipt requested. You must bill the individual shipper for the additional services after 30 days from delivery. If the individual shipper does not agree to pay the additional services, the carrier should perform only those additional services as are required to complete the delivery, and bill the individual shipper for the additional services after 30 days from delivery, except that you may collect at delivery charges for impracticable operations that do not exceed 15 percent of all other charges due at delivery.

(9) If the individual shipper requests additional services after the bill of lading has been issued, you must inform the individual shipper of the additional charges involved. You may require full payment at destination for these additional services and for 100 percent of the original binding estimate. If applicable, you also may require payment at delivery of charges for impracticable operations (as defined in your carrier tariff) not to exceed 15 percent of all other charges due at delivery. You must bill and collect from the individual shipper any applicable charges not collected at delivery in accordance with subpart H of this part.

(10) Failure to relinquish possession of a shipment upon the individual shipper's offer to pay the binding estimate amount (or, in the case of a partial delivery, a prorated percentage of the binding estimate as set forth in paragraph (a)(11) of this section) plus charges for any additional services requested by the shipper after the bill of lading has been issued and charges, if applicable, for impracticable operations (subject to a maximum amount as set forth in paragraph 9 of this section), constitutes a failure to transport a shipment with “reasonable dispatch” and subjects you to cargo delay claims pursuant to part 370 of this chapter.

(11) If you make only a partial delivery of the shipment, you may not demand upon delivery full payment of the binding estimate. You may demand only a prorated percentage of the binding estimate. The prorated percentage must be the percentage of the weight of that portion of the shipment delivered relative to the total weight of the shipment. For example, if you deliver only 2,500 pounds of a shipment weighing 5,000 pounds, you may demand payment at destination for only 50 percent of the binding estimate.

(b) In accordance with § 375.401(a), you may impose a charge for providing a written binding estimate. If you do not provide a binding estimate to an individual shipper, you must provide a non-binding estimate in accordance with § 375.405.

21. Amend § 375.405 to revise paragraphs (b)(1), (b)(2), (b)(5), (b)(8), (b)(9) and (b)(10) to read as follows:

§ 375.405
How must I provide a non-binding estimate?

(b) * * *

(1) You must provide reasonably accurate non-binding estimates based upon both the estimated weight or volume of the shipment and services required and the physical survey of the household goods, if required. If you provide a shipper with an estimate based on volume that will later be converted to a weight-based rate, you must provide the shipper an explanation in writing of the formula used to calculate the conversion to weight.

(2) You must explain to the individual shipper that final charges calculated for shipments moved on non-binding estimates will be those appearing in your tariffs applicable to the transportation. You must explain that these final charges may exceed the approximate costs appearing in your estimate.

(5) You must clearly indicate on the face of a non-binding estimate that the

estimate is not binding upon you and the charges shown are the approximate charges to be assessed for the service identified in the estimate. The estimate must clearly state that the shipper will not be required to pay more than 110 percent of the non-binding estimate at the time of delivery.

(8) Once you load a shipment, failure to execute a new non-binding estimate signifies you have reaffirmed the original non-binding estimate. You may not collect more than 110 percent of the amount of the original non-binding estimate at destination, except as provided in paragraphs (b)(9) and (10) of this section.

(9) If you believe additional services are necessary to properly service a shipment after the bill of lading has been issued, you must inform the individual shipper what the additional services are before performing those services. You must allow the shipper at least one hour to determine whether he or she wants the additional services performed. If the individual shipper agrees to pay for the additional services, you must execute a written attachment to be made an integral part of the bill of lading contract and have the individual shipper sign the written attachment. This may be done through fax transmissions; e-mail; overnight courier; or certified mail, return receipt requested. You must bill the individual shipper for the additional services after 30 days from delivery. If the individual shipper does not agree to pay the additional services, the carrier should perform only those additional services as are required to complete the delivery, and bill the individual shipper for the additional services after 30 days from delivery, except that you may collect at delivery charges for impracticable operations that do not exceed 15 percent of all other charges due at delivery.

(10) If the individual shipper requests additional services after the bill of lading has been issued, you must inform the individual shipper of the additional charges involved. You may require full payment at destination for these additional services and (unless you make only a partial delivery, in which case you must collect a prorated percentage of the original non-binding estimate as set forth in § 375.407(c) of this part) for up to 110 percent of the original non-binding estimate. If applicable, you also may require payment at delivery of charges for impracticable operations (as defined in your carrier tariff) not to exceed 15 percent of all other charges due at delivery. You must bill and collect from the individual shipper any applicable charges not collected at delivery in accordance with subpart H of this part.

22. Revise § 375.407 to read as follows:

§ 375.407
Under what circumstances must I relinquish possession of a collect-on-delivery shipment transported under a non-binding estimate?
(a) If an individual shipper pays you up to 110 percent of the non-binding estimate on a collect-on-delivery shipment (or, in the case of a partial delivery, a prorated percentage of the non-binding estimate as set forth in paragraph (c) of this section), you must relinquish possession of the shipment at the time of delivery. If there are either charges for any additional services requested by the shipper after the bill of lading has been issued and/or charges, if applicable, for impracticable operations (subject to a maximum amount as set forth in paragraph (d) of this section), and the shipper also pays you for such charges, you must relinquish possession of the shipment at the time of delivery. You must accept the form of payment agreed to at the time of estimate, unless the shipper agrees in writing to a change in the form of payment.

(b) Failure to relinquish possession of a shipment after the individual shipper offers to pay you up to 110 percent of the approximate costs of a non-binding estimate plus any additional charges described in paragraph (a) of this section constitutes a failure to transport a shipment with “reasonable dispatch” and subjects you to cargo delay claims pursuant to part 370 of this chapter.

(c) If you make only a partial delivery of the shipment, you may not demand full payment of the non-binding estimate. You may demand at delivery only a prorated percentage of the non-binding estimate (or a prorated percentage of an amount up to 110 percent of the non-binding estimate). The prorated percentage must be the percentage of the weight of that portion of the shipment delivered relative to the total weight of the shipment. For example, if you deliver only 2,500 pounds of a shipment weighing 5,000 pounds, you may demand payment of 50 percent of not more than 110 percent of the non-binding estimate.

(d) You may not demand payment of charges for impracticable operations, as defined in your tariff, of more than 15 percent of all other charges due at delivery. You must bill and collect from the individual shipper charges for impracticable operations not collected at delivery in accordance with subpart H of this part.

23. Amend § 375.501 to revise paragraph (a)(10) to read as follows:

§ 375.501
Must I write up an order for service?
(a) * * *

(10) A statement of the declared value of the shipment, which is the maximum amount of your liability to the individual shipper under your Full Value Protection for the replacement value of any household goods that are lost, damaged, destroyed, or otherwise not delivered to the final destination. If the individual shipper waives, in writing, your Full Value Protection liability, you must include a copy of the waiver; the Surface Transportation Board's required released rates valuation statement; and the charges, if any, for optional valuation coverage (other than Full Value Protection). The released rates may be increased annually by the motor carrier based on the U.S. Department of Commerce's Cost of Living Adjustment.

24. Amend § 375.505 to revise paragraph (b)(12) to read as follows:

§ 375.505
Must I write up a bill of lading?

(b) * * *

(12) A statement of the declared value of the shipment, which is the maximum amount of your liability to the individual shipper under your Full Value Protection for the replacement value of any household goods that are lost, damaged, destroyed, or otherwise not delivered to the final destination. If the individual shipper waives, in writing, your Full Value Protection liability for the declared value of the household goods, you must include a copy of the waiver; the Surface Transportation Board's required released rates valuation statement; and the charges, if any, for optional valuation coverage (other than Full Value Protection). The released rates may be increased annually by the motor carrier based on the U.S. Department of Commerce's Cost of Living Adjustment.

25. Revise § 375.703 to read as follows:

§ 375.703
What is the maximum collect-on-delivery amount I may demand at the time of delivery?

(a) On a binding estimate, the maximum amount is the exact estimate of the charges, plus charges for any additional services requested by the shipper after the bill of lading has been issued and charges, if applicable, for

impracticable operations as defined in your carrier tariff. The maximum amount of charges for impracticable operations you may collect on delivery is an amount equal to 15 percent of all other charges due at delivery.

(b) On a non-binding estimate, the maximum amount is 110 percent of the non-binding estimate of the charges, plus charges for any additional services requested by the shipper after the bill of lading has been issued and charges, if applicable, for impracticable operations as defined in your carrier tariff. The maximum amount of charges for impracticable operations you may collect on delivery is an amount equal to 15 percent of all other charges due at delivery.

26. Revise § 375.707 to read as follows:

§ 375.707
If a shipment is partially lost or destroyed, what charges may I collect at delivery?
(a) (1) If a shipment is partially lost or destroyed, you may collect at delivery:

(i) A prorated percentage of the binding estimate or a prorated percentage of up to 110 percent of the non-binding estimate. The prorated percentage is equal to the percentage of the weight of that portion of the shipment delivered relative to the total weight of the shipment. For example, if you deliver only 2,500 pounds of a shipment weighing 5,000 pounds, you may demand at destination, as applicable, only 50 percent of a binding estimate or 50 percent of not more than 110 percent of a non-binding estimate;

(ii) Charges for any additional services requested by the shipper after the bill of lading has been issued; and

(iii) Charges for impracticable operations, if applicable, except that such charges must not exceed 15 percent of all other charges due at delivery.

(iv) Any specific valuation charge due.

(2) You must bill and collect from the individual shipper any remaining charges not collected at delivery in accordance with subpart H of this part.

(b) You must determine, at your own expense, the proportion of the shipment, based on actual or constructive weight, not lost or destroyed in transit.

(c) You may disregard paragraph (a)(1) of this section if loss or destruction was due to an act or omission of the individual shipper.

(d) The individual shipper's rights are in addition to, and not in lieu of, any other rights the individual shipper may have with respect to a shipment of household goods you or your agent(s) partially lost or destroyed in transit. This applies whether or not the individual shipper exercises any rights to obtain a refund of the portion of your published freight charges corresponding to the portion of the lost or destroyed shipment (including any charges for accessorial or terminal services) at the time you dispose of claims for loss, damage, or injury to articles in the shipment under part 370 of this chapter.

27. Amend § 375.807 to revise paragraph (c)(1) to read as follows:

§ 375.807
What actions may I take to collect the charges upon my freight bill?

(c) * * *

(1) You must automatically extend the credit period to a total of 30 calendar days for any shipper who has not paid your freight bill within the 7-day period. However, for charges for impracticable operations that are not collected at delivery, you may not extend the credit period beyond 30 days after you present your freight bill.

28. Revise Appendix A to part 375 to read as follows:
Appendix A to Part 375—Your Rights and Responsibilities When You Move

OMB No. 2126-0025

Furnished by Your Mover, as Required by Federal Law

Authority:

49 U.S.C. 13301, 13704, 13707, and 14104; 49 CFR 1.73.

What Is Included in This Pamphlet?

In this pamphlet, you will find a discussion of each of these topics:

Why Was I Given This Pamphlet?

What Are the Most Important Points I Should Remember From This Pamphlet?

What If I Have More Questions?

Subpart A—General Requirements

Who must follow the regulations?

What definitions are used in this Pamphlet?

Subpart B—Before Requesting Services From Any Mover

What is my mover's normal liability for loss or damage when my mover accepts goods from me?

What actions by me limit or reduce my mover's normal liability?

What are dangerous or hazardous materials that may limit or reduce my mover's normal liability?

May my mover have agents?

What items must be in my mover's advertisements?

How must my mover handle complaints and inquiries?

Do I have the right to inspect my mover's tariffs (schedules of charges) applicable to my move?

Must my mover have an arbitration program?

Must my mover inform me about my rights and responsibilities under Federal Law?

What other information must my mover provide to me?

How must my mover collect charges?

May my mover collect charges upon delivery?

May my mover extend credit to me?

May my mover accept charge or credit cards for my payments?

Subpart C—Service Options Provided

What service options may my mover provide?

If my mover sells liability insurance coverage, what must my mover do?

Subpart D—estimating charges

Must my mover estimate the transportation and accessorial charges for my move?

How must my mover estimate charges under the regulations?

What payment arrangements must my mover have in place to secure delivery of my household goods shipment?

Subpart E—Pickup of My Shipment of Household Goods

Must my mover write up an order for service?

Must my mover write up an inventory of the shipment?

Must my mover write up a bill of lading?

Should I reach an agreement with my mover about pickup and delivery times?

Must my mover determine the weight of my shipment?

How must my mover determine the weight of my shipment?

What must my mover do if I want to know the actual weight or charges for my shipment before delivery?

Subpart F—Transportation of My Shipment

Must my mover transport the shipment in a timely manner?

What must my mover do if it is able to deliver my shipment more than 24 hours before I am able to accept delivery?

What must my mover do for me when I store household goods in transit?

Subpart G—Delivery of My Shipment

May my mover ask me to sign a delivery receipt releasing it from liability?

What is the maximum collect-on-delivery amount my mover may demand I pay at the time of delivery?

If my shipment is transported on more than one vehicle, what charges may my mover collect at delivery?

If my shipment is partially or totally lost or destroyed, what charges may my mover collect at delivery?

How must my mover calculate the charges applicable to the shipment as delivered?

Subpart H—Collection of Charges

Does this subpart apply to most shipments?

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?

What actions may my mover take to collect from me the charges in its freight bill?

Do I have a right to file a claim to recover money for property my mover lost or damaged?

Subpart I—Resolving Disputes With My Mover

What may I do to resolve disputes with my mover?

Why Was I Given This Pamphlet?

The Federal Motor Carrier Safety Administration's (FMCSA) regulations protect consumers on interstate moves and define the rights and responsibilities of consumers and household goods carriers.

The household goods carrier (mover) gave you this booklet to provide information about your rights and responsibilities as an individual shipper of household goods. Your primary responsibility is to select a reputable household goods carrier, ensure that you understand the terms and conditions of the contract, and understand and pursue the remedies that are available to you in case problems arise. You should talk to your mover if you have further questions. The mover will also furnish you with additional written information describing its procedure for handling your questions and complaints. The additional written information will include a telephone number you can call to obtain additional information about your move.

What Are the Most Important Points I Should Remember From This Pamphlet?

1. Movers must give written estimates.

2. Movers may give binding estimates.

3. Non-binding estimates are not always accurate; actual charges may exceed the estimate.

4. If your mover provides you (or someone representing you) with any partially complete document for your signature, you should verify the document is as complete as possible before signing it. Make sure the document contains all relevant shipping information, except the actual shipment weight and any other information necessary to determine the final charges for all services performed.

5. You may request from your mover the availability of guaranteed pickup and delivery dates.

6. Be sure you understand the mover's responsibility for loss or damage, and request an explanation of the difference between valuation and actual insurance.

7. You have the right to be present each time your shipment is weighed.

8. You may request a reweigh of your shipment.

9. If you agree to move under a non-binding estimate, you should confirm with your mover—in writing—the method of payment at delivery as cash, certified check, cashier's check, money order, or credit card.

10. Movers must offer a dispute settlement program as an alternative means of settling loss or damage claims. Ask your mover for details.

11. You should ask the person you speak to whether he or she works for the actual mover or a household goods broker. A household goods broker must not represent itself as a mover. The broker is responsible only for arranging the transportation. It does not own the trucks used to transport the shipment and is required to find an authorized mover to provide the transportation. You should know that a household goods broker generally has no authority to provide you with an estimate for the move, unless the broker has a written agreement with the household goods carrier. If a household goods broker provides you with an estimate without a written agreement with the carrier, the estimate may not be binding and you may instead be required to pay the actual charges assessed by the mover. A household goods broker is not responsible for loss or damage.

12. You may request complaint information about movers from the Federal Motor Carrier Safety Administration under the Freedom of Information Act. You may be assessed a fee to obtain this information. See 49 CFR part 7 for the schedule of fees.

13. You should seek estimates from at least three different movers. You should not disclose any information to the different movers about their competitors, as it may affect the accuracy of their estimates.

What if I Have More Questions?

If this pamphlet does not answer all of your questions about your move, do not hesitate to ask for additional information from your mover's representative who handled the arrangements for your move, the driver who transports your shipment, or the mover's main office.

Subpart A—General Requirements

The primary responsibility for your protection lies with you in selecting a reputable household goods carrier, ensuring you understand the terms and conditions of your contract with your mover, and understanding and pursuing the remedies that are available to you in case problems arise.

Who Must Follow the Regulations?

The regulations inform motor carriers engaged in the interstate transportation of household goods (household goods motor carriers or movers) what standards they must follow when offering services to you. You, an individual shipper, are not directly subject to the regulations. However, your mover may be required by the regulations to demand that you pay on time. The regulations apply only to a mover that both transports your household goods by motor vehicle in interstate commerce—that is, when you are moving from one State to another—and provides certain types of additional services. The regulations do not apply when your interstate move takes place within a single commercial zone. A commercial zone is roughly equivalent to the local metropolitan area of a city or town. For example, a move between Brooklyn, NY, and Hackensack, NJ, would be considered within the New York City commercial zone and would not be subject to these regulations. Commercial zones are defined in 49 CFR part 372.

What Definitions Are Used in This Pamphlet?

Accessorial (Additional) Services
—These are services such as packing, appliance servicing, unpacking, or piano stair carries that you request be performed (or that are necessary because of landlord requirements or other special circumstances). Charges for these services may be in addition to the line-haul charges.

Advanced Charges
—These are charges for services performed by someone other than the mover. A professional, craftsman, or other third party may perform these services at your request. The mover pays for these services and adds the charges to your bill of lading charges.

Advertisement
—This is any communication to the public in connection with an offer or sale of any interstate household goods transportation service. This will include written or electronic database listings of your mover's name, address, and telephone number in an online database. This excludes listings of your mover's name, address, and telephone number in a telephone directory or similar publication. However, Yellow Pages advertising is included within the definition.

Agent
—A local moving company authorized to act on behalf of a larger, national company.

Appliance Service by Third Party
—The preparation of major electrical appliances to make them safe for shipment. Charges for these services may be in addition to the line-haul charges.

Bill of Lading
—The receipt for your goods and the contract for their transportation.

Carrier
—The mover transporting your household goods.

Collect on Delivery (COD)
—This means payment is required at the time of delivery at the destination residence (or warehouse).

Certified Scale
—Any scale designed for weighing motor vehicles, including trailers or semi-trailers not attached to a tractor, and certified by an authorized scale inspection and licensing authority. A certified scale may also be a platform or warehouse type scale that is properly inspected and certified.

Estimate, Binding
—This is a written agreement made in advance with your mover. It guarantees the total cost of the move based upon the quantities and services shown on the estimate.

Estimate, Non-Binding
—This is what your mover believes the cost will be, based upon the estimated weight of the shipment and the accessorial services requested. A non-binding estimate is not binding on the mover. The final charges will be based upon the actual weight of your shipment, the services provided, and the tariff provisions in effect.

Expedited Service
—This is an agreement with the mover to perform transportation by a set date in exchange for charges based upon a higher minimum weight.

Flight Charge
—A charge for carrying items up or down flights of stairs. Charges for these services may be in add

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE7-11717. Public record. Not legal advice.