Record of Violations |
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James W. Deck
Federal Motor Carrier Safety Administration
14 December 2020
[Federal Register Volume 85, Number 240 (Monday, December 14, 2020)]
[Proposed Rules]
[Pages 80745-80760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26957]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385 and 391
[Docket No. FMCSA-2018-0224]
RIN 2126-AC15
Record of Violations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking.
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SUMMARY: FMCSA proposes to eliminate the requirement that drivers
operating commercial motor vehicles (CMVs) in interstate commerce
prepare and submit a list of their convictions for traffic violations
to their employers annually. This requirement is largely duplicative of
a separate provision that requires each motor carrier to make an annual
inquiry to obtain the motor vehicle record (MVR) for each driver it
employs from every State in which the driver holds or has held a CMV
operator's license or permit in the past year. To ensure motor carriers
are aware of traffic violations for a driver who is licensed by a
foreign authority rather than by a State, that provision would be
amended to provide that motor carriers must make an annual inquiry to
each driver's licensing authority where a driver holds or has held a
CMV operator's license or permit. This change would require motor
carriers to request the MVR equivalent from Canadian and Mexican
driver's licensing authorities. FMCSA expects that removing the
requirement for drivers to provide a list of their convictions for
traffic violations to their employers annually would reduce the
paperwork burden on drivers and motor carriers without adversely
affecting CMV safety.
DATES: Comments on this notice of proposed rulemaking (NPRM) and
information collection must be received on or before February 12, 2021.
[[Page 80746]]
ADDRESSES: You may submit comments regarding this NPRM identified by
docket number FMCSA-2018-0224 using any of the following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0224. Follow the online
instructions for submitting comments.
Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday, except Federal holidays. To be sure
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
Fax: (202) 493-2251.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Office of Driver
and Carrier Operations, at Federal Motor Carrier Safety Administration,
1200 New Jersey Avenue SE, Washington, DC 20590-0001; (202) 366-4325;
or MCPSD@dot.gov. If you have questions on viewing or submitting
material to the docket, call Dockets Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
A. Submitting Comments to the NPRM
If you submit a comment to this NPRM, please include the docket
number (FMCSA-2018-0224), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an email address, or a phone number in the body of your
document so that FMCSA can contact you if there are questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0224, click on the ``Comment Now!'' button
and type your comment into the text box on the following screen. Choose
whether you are submitting your comment as an individual or on behalf
of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period and may make changes based on your comments.
Confidential Business Information
Confidential Business Information (CBI) is commercial or financial
information that is both customarily and actually treated as private by
its owner. Under the Freedom of Information Act (5 U.S.C. 552), CBI is
exempt from public disclosure. If your comments responsive to this NPRM
contain commercial or financial information that is customarily treated
as private, that you actually treat as private, and that is relevant or
responsive to this NPRM, it is important that you clearly designate the
submitted comments as CBI. Please mark each page of your submission
that constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information. FMCSA will treat such marked submissions as confidential
under the Freedom of Information Act, and they will not be placed in
the public docket for this rulemaking. Submissions containing CBI
should be sent to Mr. Brian Dahlin, Chief, Regulatory Analysis
Division, Federal Motor Carrier Safety Administration, 1200 New Jersey
Avenue SE, Washington, DC 20590-0001. Any comments FMCSA receives that
are not specifically designated as CBI will be placed in the public
docket for this rulemaking.
B. Viewing Comments and Documents
To view comments, as well as any documents mentioned as being
available in the docket, go to http://www.regulations.gov/#!docketDetail;D=FMCSA-2018-0224 and choose the document to review. If
you do not have access to the internet, you may view the docket online
by visiting Dockets Operations in Room W12-140 on the ground floor of
the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal
holidays. To be sure someone is there to help you, please call (202)
366-9317 or (202) 366-9826 before visiting Dockets Operations.
C. Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its rulemaking process. DOT posts these
comments, without edit, including any personal information the
commenter provides, to www.regulations.gov, as described in the system
of records notice DOT/ALL 14--FDMS, which can be reviewed at https://www.transportation.gov/privacy.
D. Waiver of Advance Notice of Proposed Rulemaking
Under 49 U.S.C. 31136(g)(1), FMCSA is required to publish an
advance notice of proposed rulemaking or conduct a negotiated
rulemaking if a proposed rule is likely to lead to the promulgation of
a major rule.\1\ As this proposed rule is not likely to result in the
promulgation of a major rule, the Agency is not required to issue an
advance notice of proposed rulemaking or to proceed with a negotiated
rulemaking.
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\1\ A ``major rule'' means any rule that the Administrator of
OIRA at OMB finds has resulted in or is likely to result in (a) an
annual effect on the economy of $100 million or more; (b) a major
increase in costs or prices for consumers, individual industries,
Federal agencies, State agencies, local government agencies, or
geographic regions; or (c) significant adverse effects on
competition, employment, investment, productivity, innovation, or on
the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets (5 U.S.C.
804(2)).
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E. Comments on the Information Collection
Written comments and recommendations for the information collection
discussed in this NPRM can be sent to FMCSA within 60 days of
publication using any of the methods described in ``Public
Participation and Request for Comments'' above.
II. Executive Summary
A. Purpose of the Regulatory Action and Summary of the Major Provisions
As part of FMCSA's ongoing regulatory reform efforts to remove
costly, redundant, and burdensome regulations, the Agency proposes to
rescind 49 CFR 391.27, Record of violations, and all related references
to the rule in the Federal Motor Carrier Safety Regulations (FMCSRs).
Section 391.27 provides that each motor carrier must, at least once
every 12 months, require each driver it employs to prepare and furnish
the motor carrier with a list of all violations of motor vehicle
traffic laws and ordinances, other than violations involving only
parking, of which the driver has been convicted or for which the driver
has forfeited bond or collateral during the preceding 12 months. When a
driver does not have any violations to report, the driver is required
to furnish a certification to that effect. The motor carrier must
retain the list of violations
[[Page 80747]]
or certification of no violations in the driver's qualification file.
FMCSA would retain the requirement in Sec. 391.25(a), Annual
inquiry and review of driving record, for an annual MVR inquiry, which
is largely duplicative of the requirement in Sec. 391.27 for drivers
to provide an annual list of their violations to their motor carriers.
Section 391.25 requires each motor carrier to make an annual inquiry to
obtain the MVR for each driver it employs from every State \2\ in which
the driver holds or has held a CMV operator's license or permit in the
past year. The motor carrier is required to review the MVR obtained and
to maintain a copy of it in the driver's qualification file. Thus,
Sec. 391.25 currently applies to all motor carriers, domestic and
foreign, but is limited to inquiries for drivers licensed by a State.
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\2\ For purposes of part 391, the term ``State'' includes the
District of Columbia (49 CFR 390.5T).
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To ensure motor carriers are aware of traffic violations for a
driver who is licensed by a foreign authority rather than by a State,
FMCSA proposes to amend Sec. 391.25(a) to require motor carriers to
inquire annually of each driver's licensing authority where a driver
holds or has held a CMV operator's license or permit. This change would
require motor carriers to request the MVR equivalent from Canadian and
Mexican driver's licensing authorities.
To maintain consistency within part 391 with respect to requests
for MVRs, FMCSA proposes conforming changes to the hiring process.
Section 391.23, Investigation and inquiries, requires a motor carrier
to make an inquiry to each State where the driver holds or has held a
motor vehicle operator's license or permit during the preceding 3 years
to obtain the driver's MVR when a motor carrier is hiring a driver.
Changes would be made in Sec. 391.23 to require motor carriers to make
inquiries to each driver's licensing authority where a driver holds or
has held a motor vehicle operator's license or permit. A change also
would be made in Sec. 391.21, Application for employment, to require
each driver to provide on the employment application the issuing
driver's licensing authority of each unexpired CMV operator's license
or permit that has been issued to the driver so motor carriers could
make the required inquiries under Sec. 391.23. Other conforming
changes are outlined in the section-by-section analysis in Section
VII., below.
B. Costs and Benefits
The proposed elimination of Sec. 391.27 would result in cost
savings to drivers, as they would no longer spend time completing a
list of convictions for traffic violations. It would result in cost
savings to motor carriers, as they would no longer have to file the
lists in driver qualification files. The Agency estimates that
rescinding Sec. 391.27 would result in cost savings of $28.1 million
over 10 years, at a 7 percent discount rate. The annualized cost
savings would be estimated at $4.0 million.
The proposed changes in the FMCSRs to require inquiries to Canadian
and Mexican driver's licensing authorities would have minimal, if any,
impact. Only a small proportion of CMV drivers operating in the United
States are licensed by a foreign authority rather than by a State. Of
the 6.2 million CMV drivers reported in FMCSA's 2018 Pocket Guide to
Large Truck and Bus Statistics,\3\ the Agency estimates that at most
only 2.0 percent are employed by Canadian motor carriers operating in
the United States and 0.5 percent are employed by Mexican motor
carriers operating in the United States. The combined total of 2.4
percent represents approximately 139,733 drivers reported as being
employed by Canadian and Mexican motor carriers.\4\
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\3\ Available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/safety/data-and-statistics/413361/fmcsa-pocket-guide-2018-final-508-compliant.pdf, Exhibit 1-10 (accessed Apr. 22, 2019).
\4\ The sum of the number of Canadian and Mexican drivers as a
percentage of the total number of drivers in Exhibit 1-10 does not
add up to 2.5 percent due to rounding.
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The proposed changes would not increase reporting and recordkeeping
costs for motor carriers or drivers. This is because the Motor Carrier
Management Information System (MCMIS), the repository for the Agency's
driver population data, counts the total number of drivers reported by
motor carriers, both foreign and domestic, and for purposes of
information collection burden calculation, the median fee for obtaining
an MVR or its equivalent from either a foreign or a domestic authority
is generally the same.\5\ FMCSA uses the MCMIS driver population data,
which currently includes drivers employed by Canadian and Mexican motor
carriers, to calculate the burden associated with information
collections and paperwork. Therefore, though FMCSA is proposing new
requirements for motor carriers to request MVRs for their drivers
operating in the United States who are licensed by a foreign authority
rather than by a State, the current OMB-approved information collection
already includes the reporting and recordkeeping costs and burdens.
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\5\ Motor carriers also must pay driver's licensing authorities
to request MVRs and MVR equivalents. The current OMB-approved
information collection request associated with the reporting and
recordkeeping requirements of Sec. Sec. 391.23 and 391.25 estimates
the cost incurred by motor carriers to request MVRs based on the
median for the 51 State driver's licensing agencies (SDLAs). The
median fee used in this analysis is based on the 51 SDLAs' and
Canadian licensing authorities' fees. The median fee is $9 with or
without the Canadian authorities' fees. Thus, this new requirement
imposes no new costs on motor carriers.
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In addition, Canadian and Mexican motor carriers are already
required by their applicable safety codes to request the equivalent of
MVRs for their drivers from their country's licensing authorities.\6\
Accordingly, FMCSA has determined that the proposed changes to
Sec. Sec. 391.23 and 391.25 to require inquiries to Canadian and
Mexican driver's licensing authorities to obtain the equivalent of MVRs
would impose no new record keeping or reporting costs or burdens.
Though Canadian and Mexican motor carriers would not be required to
change their current business practices and would not have any new
costs or burdens imposed as a result of the proposed rule, FMCSA
continues to include the costs and burdens for requesting MVR
equivalents in the current OMB-approved information collection to treat
all motor carriers consistently and for administrative convenience.
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\6\ See Section IX.A., below, and footnote 10 for additional
information.
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FMCSA does not expect this proposed rule would negatively affect
CMV safety. Motor carriers would still be required by Sec. 391.25 to
make an inquiry at least annually to each driver's licensing authority
in which an employed driver holds or has held a CMV operator's license
or permit to obtain the MVR of each driver they employ. Thus, motor
carriers would still have a reliable way to learn of any convictions
for traffic violations incurred by their driver employees.
III. Legal Basis for the Rulemaking
Sections 391.21, 391.23, 391.25, and 391.27 in title 49 of the CFR
are based on the authority of the Motor Carrier Act of 1935 (1935 Act)
(Pub. L. 74-255, 49 Stat. 543, 546, August 9, 1935) and the Motor
Carrier Safety Act of 1984 (1984 Act) (Pub. L. 98-554, 98 Stat. 2832,
2834, 2841, October 30, 1984), both as amended.
This NPRM proposes to rescind Sec. 391.27 and to amend Sec. Sec.
391.23 and 391.25 to require motor carriers to make an inquiry to each
driver's licensing
[[Page 80748]]
authority where each driver they propose to hire, or have employed for
the last 12 months, holds or has held a CMV operator's license or
permit, to obtain the MVR for that driver. In addition, the Agency
proposes to amend Sec. 391.21 to require drivers to provide on the
employment application the issuing driver's licensing authority of each
unexpired CMV operator's license or permit that has been issued to the
driver.
The 1935 Act, as codified at 49 U.S.C. 31502(b), authorizes the
Secretary of Transportation (Secretary) to ``prescribe requirements
for--(1) qualifications and maximum hours of service of employees of,
and safety of operation and equipment of, a motor carrier; and (2)
qualifications and maximum hours of service of employees of, and
standards of equipment of, a motor private carrier, when needed to
promote safety of operation.'' This NPRM addresses the qualifications
of motor carrier employees, consistent with the safe operation of CMVs.
The 1984 Act, as codified at 49 U.S.C. 31136, provides concurrent
authority to regulate drivers, motor carriers, and vehicle equipment.
Section 31136 requires the Secretary to issue regulations on CMV safety
including regulations to ensure that ``commercial motor vehicles are .
. . operated safely'' (section 31136(a)(1)). The remaining statutory
factors and requirements in section 31136(a), to the extent they are
relevant, are also satisfied here. In accordance with section
31136(a)(2), the requirement for motor carriers to inquire of driver's
licensing authorities to obtain the MVR of each driver they employ
would not impose any ``responsibilities . . . on operators of
commercial motor vehicles [that would] impair their ability to operate
the vehicles safely.'' This rule would not address medical standards
for drivers or possible physical effects caused by driving CMVs
(section 31136(a)(3) and (a)(4), respectively). FMCSA believes there is
no basis to anticipate that drivers would be coerced (section
31136(a)(5)) because of this rulemaking. The Secretary has
discretionary authority under 49 U.S.C. 31133(a)(8) to prescribe, and
thus to remove, recordkeeping and reporting requirements. This
deregulatory action to rescind Sec. 391.27 rests on that authority.
The Administrator of FMCSA is delegated authority under 49 CFR 1.87
to carry out the functions vested in the Secretary by 49 U.S.C.
chapters 311 and 315 as they relate to CMV operators, programs, and
safety.
Finally, prior to prescribing any regulations, FMCSA must consider
their ``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 31502(d)).
Those factors are discussed in the Regulatory Analyses section of this
proposed rule.
IV. Background
Currently, 49 CFR 391.27 specifies, in part and subject to limited
exceptions, that each motor carrier must, at least once every 12
months, require each driver it employs to prepare and furnish the motor
carrier with a list of all violations of motor vehicle traffic laws and
ordinances, other than violations involving only parking, of which the
driver has been convicted or for which the driver has forfeited bond or
collateral during the preceding 12 months. Section 391.27 became
effective on January 1, 1971 (35 FR 6458, 6462, Apr. 22, 1970).
On two previous occasions the Federal Highway Administration
(FHWA), FMCSA's predecessor agency, proposed removing Sec. 391.27 and
its related requirements. The initial proposal was included in a
January 10, 1994, NPRM titled ``Removal of Obsolete and Redundant
Regulations and Appendices'' (59 FR 1366). In that document, FHWA
stated the objective of Sec. 391.27 is to provide the employing motor
carrier with information about a driver's moving violations so the
carrier can use the information to ensure that its driver has not been
disqualified to drive a CMV (59 FR 1367). FHWA also stated that the
requirements in Sec. 391.27 are unnecessary and redundant because
commercial driver's license (CDL) regulations already require CMV
drivers to notify their current employers within 30 days of any
conviction for a non-parking violation in any kind of vehicle. FHWA
stated further that it is a common practice for motor carriers to
obtain State MVRs on each of their drivers once or more per year,
though such action is not required.
In response to the NPRM, nine commenters supported and eight
opposed the removal of Sec. 391.27. Some commenters recommended
replacing the requirement for a list of violations with similar
requirements involving an annual inquiry by motor carriers to the State
driver's licensing agencies (SDLA) regarding the employee's driving
record. Other commenters stated the requirement to provide a list of
violations is the only notification requirement applicable to drivers
of smaller commercial vehicles, and its removal would eliminate an
important source of information. FHWA decided not to remove the
requirement to provide a list of violations when the final rule was
adopted, but stated it would evaluate the comments further and
determine whether a future rulemaking to amend such requirements would
be warranted (59 FR 60319, 60320, November 23, 1994).
The second proposal to eliminate Sec. 391.27 was included in a
January 27, 1997, NPRM titled ``Review of the [FMCSRs]; Regulatory
Removals and Substantive Amendments'' (62 FR 3855). FHWA proposed
replacing the requirement for drivers to provide a list of violations
with similar requirements involving an annual inquiry regarding
drivers' driving records by motor carriers to the SDLA, as proposed in
Sec. 391.25. The proposal to eliminate Sec. 391.27 was based on two
assumptions. The first assumption was that SDLAs would be able to
provide a comprehensive record of crashes and traffic violations for
both CDL and non-CDL CMV drivers so a motor carrier could ``better
verify that its drivers have not lost their driving privileges and have
not been otherwise disqualified to drive a CMV'' (62 FR 3858). The
second assumption was that the State records would be more accurate
than the practice of relying on a driver's memory or honesty.
Several commenters expressed reservations about the completeness
and timeliness of SDLA information at that time. They believed that
significant improvements needed to be made in the States' collection
and transmission of data before motor carriers should be asked to rely
completely on State driving records. Other commenters supported the
proposal as a more consistent and objective method to gather
information. FHWA determined that it was in the best interest of safety
to retain Sec. 391.27. FHWA stated that, until the completeness and
timeliness of State-based driver record information is substantially
improved, it is important for motor carriers to obtain violation
information from both the driver and State-based source to enable
cross-verification of information (63 FR 33254, 33262, June 18, 1998).
FHWA did amend Sec. 391.25, however, to include a specific requirement
for a motor carrier to make an annual inquiry for the driving record of
each of its drivers to the appropriate agency of every State in which
the driver held a CMV operator's license or permit during the relevant
time period (63 FR 33277).
On October 2, 2017, as part of the President's directives to review
existing regulations to evaluate their continued necessity, determine
whether they solve current problems, and evaluate whether they are
burdensome, DOT published a Federal Register document seeking input on
existing rules and other agency actions (82 FR 45750). DOT invited the
[[Page 80749]]
public to identify rules and other actions that are good candidates for
repeal, replacement, suspension, or modification. In response, the
American Trucking Associations and the American Pyrotechnics
Association recommended that FMCSA eliminate the requirement in Sec.
391.27 that a driver provide his or her employer with a list of
violations at least annually.\7\ They commented that the requirement is
duplicative of Sec. 391.25, which requires motor carriers to order a
driver's MVR at least annually, because the MVR contains violation
information and must be placed in the driver's qualification file.
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\7\ Both comments are available in the docket for this
rulemaking.
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V. Discussion of Proposed Rulemaking
FMCSA proposes to rescind 49 CFR 391.27, Record of violations, and
all related references to the rule in the FMCSRs. Section 391.27
provides that each motor carrier must, at least once every 12 months,
require each driver it employs to prepare and furnish the motor carrier
with a list of all violations of motor vehicle traffic laws and
ordinances, other than violations involving only parking, of which the
driver has been convicted or for which the driver has forfeited bond or
collateral during that period. When a driver does not have any
violations to report, the driver is required to furnish a certification
to that effect. The motor carrier must file the list of violations or
certification of no violations in the driver's qualification file.
FMCSA would retain the requirement in Sec. 391.25(a), Annual
inquiry and review of driving record, for an annual MVR inquiry, which
is largely duplicative of the requirement in Sec. 391.27 for drivers
to provide a list of their convictions for traffic violations to their
motor carriers. With limited exceptions, Sec. 391.25 requires each
motor carrier to inquire annually to obtain the MVR for each driver it
employs from every State in which the driver holds or has held a CMV
operator's license or permit in the past year. Additionally, the motor
carrier is required to review the MVR obtained and to maintain a copy
of it in the driver's qualification file.
Section 391.25 currently applies to all motor carriers, domestic
and foreign, but is limited to inquiries for drivers licensed by a
State. FMCSA proposes to amend Sec. 391.25(a) to require that motor
carriers make an annual inquiry to each driver's licensing authority
where a driver holds or has held a CMV operator's license or permit.
For example, any motor carrier that employs a driver who holds a
Canadian or Mexican license to operate a CMV and is authorized to
operate in the United States would be required to request the
equivalent of an MVR from the Canadian or Mexican licensing authority
where the driver is licensed.
The proposed amendment to Sec. 391.25(a) represents a change for
motor carriers from making inquiries for MVRs only to States, to
include making inquiries for MVR equivalents to Canadian and Mexican
driver's licensing authorities. This change would have minimal, if any,
impact, as relatively few drivers operating in the United States are
licensed by a foreign authority rather than by a State. In addition,
Canadian and Mexican motor carriers are already required by their
applicable safety codes to request the equivalent of MVRs for their
drivers from their country's licensing authorities. Moreover, FMCSA
currently includes the costs and burdens for requesting MVR equivalents
in its current information collections. As explained above in the
discussion of the legal basis for this rulemaking, FMCSA has the
statutory authority to make the proposed change.
To maintain consistency within part 391 with respect to requests
for MVRs, FMCSA proposes conforming changes to the hiring process.
Paragraph (a)(1) of Sec. 391.23, Investigation and inquiries, requires
a motor carrier hiring a driver to make an inquiry to each State where
the driver holds or has held a motor vehicle operator's license or
permit during the preceding 3 years to obtain the driver's MVR.
Accordingly, the term ``State'' in paragraph (a)(1) would be changed to
provide that the inquiry must be to each ``driver's licensing
authority.'' Similar changes to replace references to States would be
made in paragraph (b), which requires that a copy of the MVR obtained
in response to the inquiry to each State must be placed in the driver's
qualification file. A change also would be made in Sec. 391.21(b)(5),
Application for employment, to require each driver to provide on the
employment application the issuing ``driver's licensing authority,''
instead of ``State,'' of each unexpired CMV operator's license or
permit that has been issued to the driver so motor carriers could make
the required inquiries under Sec. 391.23.
Other FMCSRs would be amended to reflect the elimination of Sec.
391.27 or the change from an inquiry to each ``State'' to an inquiry to
each ``driver's licensing authority'' for the MVR. Paragraph (b)(6) in
Sec. 391.11, General qualifications of drivers, which provides that a
driver is not qualified to operate a CMV unless the driver has prepared
and furnished the motor carrier that employs him or her with the list
of violations or the certificate required by Sec. 391.27, would be
removed.
In Sec. 391.51, General requirements for driver qualification
files, paragraphs (b)(6) and (d)(3), which relate to maintaining in the
driver qualification file a list or certificate relating to violations
of motor vehicle laws and ordinances as required by Sec. 391.27, would
be removed. Paragraphs (b)(2) and (4), and (d)(1) would be amended to
reflect the change from an inquiry to each ``State'' to an inquiry to
each ``driver's licensing authority'' relating to maintaining copies of
MVRs received pursuant to inquiries required by Sec. 391.23(a)(1) or
391.25(a).
In Sec. 391.63, Multiple-employer drivers, paragraph (a)(5), which
provides that a multiple-employer driver need not furnish a list of
violations or a certificate in accordance with Sec. 391.27, would be
removed.
Eliminating the requirement for drivers to provide an annual list
of their convictions for traffic violations would reduce the paperwork
burden on drivers and motor carriers. The burden on motor carriers
would be reduced because they would no longer be required to file the
lists. The proposed changes to Sec. Sec. 391.21, 391.23, and 391.25
would not increase reporting or recordkeeping costs. FMCSA is not
proposing changes to other self-reporting requirements applicable to
drivers.
FMCSA does not expect that this proposed rule would affect CMV
safety adversely because the annual MVR inquiry would continue to
provide a reliable way for motor carriers to learn of their drivers'
convictions for traffic violations. The distribution of the MVR also
has become more reliable and efficient. The ``Commercial Driver's
License Testing and Commercial Learner's Permit Standards'' final rule
(76 FR 26854, May 9, 2011) required all States to upgrade their
computer systems. In addition, FMCSA has conducted outreach and
education with courts and judges, which has improved the transmission
of convictions from courts to SDLAs. Accordingly, there have been
improvements in data collection and transmission that support this
rulemaking at this time.
Retaining the annual MVR inquiry in Sec. 391.25, with the proposed
amendment to paragraph (a), would satisfy the objective of Sec. 391.27
to provide the employing motor carrier with the information necessary
to ensure that its drivers have not lost their driving
[[Page 80750]]
privileges or been disqualified to drive a CMV. In the event a motor
carrier desires additional information concerning violations that the
MVR may not reflect (for example, violations occurring in a country
where the driver is not licensed), FMCSA believes the best approach
would be to allow the driver and motor carrier to determine the most
efficient manner and process for them to obtain and communicate the
information.
FMCSA is proposing an additional amendment to Sec. 391.23(b) that
is unrelated to the proposal to rescind Sec. 391.27. Paragraph (b) of
Sec. 391.23 currently requires when no MVR is received from a State
that the motor carrier must (1) document a good faith effort to obtain
the MVR, and (2) certify that no record exists for the driver in that
State. FMCSA is proposing to remove the requirement for a
certification. A motor carrier does not have access to a licensing
authority's records; therefore, it is impossible for the motor carrier
to know what records are or are not maintained for a particular driver
by the licensing authority. The requirement for the motor carrier to
document a good faith effort to obtain the MVR would be retained.
VI. International Impacts
Motor carriers and drivers are subject to the laws and regulations
of the countries in which they operate, unless an international
agreement states otherwise. The specific impacts of this proposed rule
on foreign licensed drivers and foreign motor carriers operating CMVs
in the United States are discussed throughout the preamble of this
NPRM.
VII. Section-by-Section Analysis
This section includes a summary of the proposed regulatory changes
organized by the part and section number.
A. Part 385
Appendix B to Part 385--Explanation of Safety Rating Process
FMCSA proposes conforming changes to section VII. List of Acute and
Critical Regulations of Appendix B to Part 385. Due to the proposed
removal of Sec. 391.51(b)(6), which relates to maintaining in the
driver's qualification file a list or certificate relating to
violations of motor vehicle laws and ordinances required by Sec.
391.27, paragraph (b)(7) would be renumbered as paragraph (b)(6).
Accordingly, the current entry set forth in Appendix B to Part 385
relating to Sec. 391.51(b)(7), failing to maintain the medical
examiner's certificate in the driver's qualification file, would be
renumbered as Sec. 391.51(b)(6).
B. Part 391
Section 391.11 General Qualifications of Drivers
In Sec. 391.11, FMCSA proposes to remove paragraph (b)(6), which
references the requirements of Sec. 391.27. Paragraphs (b)(7) and (8)
would be renumbered as (b)(6) and (7).
Section 391.21 Application for Employment
In paragraph (b)(5) of Sec. 391.21, FMCSA proposes to change the
reference to a ``State'' to a ``driver's licensing authority'' to
identify the entity issuing each unexpired CMV operator's license or
permit to the driver.
Section 391.23 Investigation and Inquiries
In paragraphs (a)(1) and (b) of Sec. 391.23, FMCSA proposes to
change references to a ``State'' to a ``driver's licensing authority''
to designate where the motor carrier should make inquiries for MVRs
when a driver is hired and from where records are received. In
paragraph (b), the requirement for a motor carrier to certify that no
record exists, when no MVR is received from the licensing authority for
a driver, would be removed.
Section 391.25 Annual Inquiry and Review of Driving Record
Similar to the revisions proposed in Sec. 391.23, FMCSA proposes
to amend Sec. 391.25(a) by deleting the words ``the appropriate agency
of every State in which'' and adding in their place the words ``each
driver's licensing authority where'' to designate where the motor
carrier must make annual inquiries.
Section 391.27 Record of Violations
FMCSA proposes to remove Sec. 391.27 and reserve it for future
use.
Section 391.51 General Requirements for Driver Qualification Files
In Sec. 391.51, the Agency proposes to delete the words ``State
record'' in paragraph (b)(2) and ``State driver licensing agency'' in
paragraph (b)(4), and to add in their place the words ``driver's
licensing authority.'' Paragraph (b)(6) would be deleted to remove a
reference to the requirements of Sec. 391.27, and paragraphs (b)(7)
through (9) would be renumbered as paragraphs (b)(6) through (8).
Paragraph (d)(1) would be revised to delete the words ``State
driver licensing agency'' and to add in their place the words
``driver's licensing authority.'' To remove a reference to the
requirements of Sec. 391.27, paragraph (d)(3) would be removed, and
paragraphs (d)(4) through (6) would be renumbered as (d)(3) through
(5). A cross reference in new paragraph (d)(3) would be changed because
of the renumbering in paragraph (b).
Section 391.63 Multiple-Employer Drivers
In Sec. 391.63, FMCSA proposes to remove paragraph (a)(5) to
delete a reference to the requirements of Sec. 391.27. Paragraphs
(a)(3) and (4) would be changed to conform by making punctuation
changes.
VIII. Guidance Statements
FMCSA employs guidance statements to explain how the Agency applies
regulations to specific facts. A guidance statement does not alter the
meaning of a regulation. This rulemaking proposes to amend regulations
that have associated guidance statements or interpretations. FMCSA
would change the existing guidance to conform to the changes proposed
in this NPRM.
Guidance statements are not legally binding in their own right and
will not be relied on by FMCSA as a separate basis for affirmative
enforcement action or other administrative penalty. Conformity with
guidance statements is voluntary only, and nonconformity will not
affect rights and obligations under existing statutes or regulations.
Section 391.23 Investigation and Inquiries
Question 2 to Sec. 391.23 \8\ would be revised as stated
immediately below to reflect that inquiries for MVRs must be made to
all ``driver's licensing authorities'' where the driver holds or has
held a motor vehicle operator's license or permit, rather than only to
``States.''
---------------------------------------------------------------------------
\8\ See https://www.fmcsa.dot.gov/registration/commercial-drivers-license/may-motor-carriers-use-third-parties-ask-state-agencies (accessed Nov. 30, 2020).
---------------------------------------------------------------------------
Question 2: May motor carriers use third parties to ask driver's
licensing authorities for copies of the driving record of driver-
applicants?
Guidance: Yes. Driver information services or companies acting as
the motor carrier's agent may be used to contact driver's licensing
authorities. However, the motor carrier is responsible for ensuring the
information obtained is accurate.
[[Page 80751]]
Section 391.25 Annual Inquiry and Review of Driving Record
Questions 1 and 3 to Sec. 391.25 \9\ would be revised as stated
immediately below to reflect that MVRs must be requested from all
``driver's licensing authorities'' where the driver held a CMV
operator's license or permit, rather than only ``States.'' Question 3
also would be revised to improve clarity and correct grammatical
errors.
---------------------------------------------------------------------------
\9\ See https://www.fmcsa.dot.gov/registration/commercial-drivers-license/what-extent-must-motor-carrier-review-drivers-overall and https://www.fmcsa.dot.gov/registration/commercial-drivers-license/may-motor-carriers-use-third-parties-ask-state-agencies-0, respectively (accessed Nov. 30, 2020).
---------------------------------------------------------------------------
Question 1: To what extent must a motor carrier review a driver's
overall driving record to comply with the requirements of Sec. 391.25?
Guidance: The motor carrier must consider as much information about
the driver's experience as is reasonably available. This would include
all known violations, whether they are part of an official record
maintained by a driver's licensing authority, as well as any other
information that would indicate the driver has shown a lack of due
regard for the safety of the public. Violations of traffic and criminal
laws, as well as the driver's involvement in motor vehicle accidents,
are such indications and must be considered. A violation of size and
weight laws should be considered.
Question 3: May motor carriers use third parties to ask driver's
licensing authorities for copies of driving records to be examined
during the carrier's annual review of each driver's record?
Guidance: Yes. An examination of the official driving record
maintained by the driver's licensing authority is not required during
the annual review. Motor carriers may use third-party agents, such as
driver information services or companies, to contact driver's licensing
authorities and obtain copies of driving records. However, the motor
carrier is responsible for ensuring the information is accurate.
Section 391.27 Record of Violations
Because FMCSA proposes to rescind Sec. 391.27, the guidance to
that section also would be rescinded.
IX. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulations
Under section 3(f) of E.O. 12866 (58 FR 51735, Oct. 4, 1993),
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR
3821, Jan. 21, 2011), Improving Regulation and Regulatory Review, this
rule does not require an assessment of potential costs and benefits
under section 6(a)(3) of E.O. 12866. Accordingly, OMB has not reviewed
it under that Order. In addition, this rule is not significant within
the meaning of DOT regulations (84 FR 71714, Dec. 27, 2019).
As described above, the purpose of this proposed regulatory action
is to remove Sec. 391.27 and the requirement for drivers to provide
their motor carrier employers a list of convictions for traffic
violations (other than parking) that occurred during the previous 12
months or a certification of no violations. The proposed rule would
retain the requirement in Sec. 391.25 that motor carriers make an
annual inquiry to obtain a driver's MVR. Because Sec. 391.25 is
limited to inquiries for drivers licensed by a State, the proposed rule
would modify Sec. 391.25 to require motor carriers to request a
driver's MVR from each licensing authority that issued the driver a
license. To maintain consistency within part 391 with respect to
requests for MVRs, FMCSA proposes conforming changes to Sec. 391.23,
which requires motor carriers to request MVRs for the 3 years preceding
the date of employment when hiring a driver. These changes would
require motor carriers to request the MVR equivalent from Canadian and
Mexican driver's licensing authorities. A change also would be made in
Sec. 391.21 to require each driver to provide on the employment
application the issuing driver's licensing authority of each unexpired
CMV operator's license or permit that has been issued to the driver so
motor carriers could make the required inquiries under Sec. 391.23.
The proposed changes would not add new reporting or recordkeeping
costs.
The proposed elimination of Sec. 391.27 would result in cost
savings to drivers because they would no longer spend time completing a
list of convictions for traffic violations. It would also result in
cost savings to motor carriers because they would no longer have to
file the lists in driver qualification files. The Agency estimates that
the proposed rule would result in cost savings to CMV drivers and motor
carriers of $40.1 million over 10 years on an undiscounted basis, and
$28.1 million discounted at 7 percent over the 10-year analysis period.
Expressed on an annualized basis, this equates to cost savings of $4.0
million at a 7 percent discount rate.
The proposed changes to Sec. Sec. 391.21, 391.23, and 391.25 would
not increase reporting or recordkeeping costs. The proposed rule would
institute new requirements under the FMCSRs for motor carriers to
request MVRs for their drivers operating in the United States who are
licensed by a foreign authority rather than by a State. However, the
current OMB-approved information collection for Sec. Sec. 391.23 and
391.25 titled ``Driver Qualification Files,'' OMB Control Number 2126-
0004, already includes reporting and recordkeeping costs and burdens
incurred by motor carriers to request MVRs for such drivers. As
explained below, applicable motor carriers would not incur an increase
in costs or burdens as a result of this proposed rule. Nonetheless,
FMCSA retains these costs and burdens under OMB Control Number 2126-
0004 to treat all motor carriers consistently and for administrative
convenience. Similarly, the current OMB-approved information collection
for Sec. 391.21 already includes reporting and recordkeeping costs
incurred by drivers to prepare and submit employment applications.
All motor carriers authorized to operate in the United States are
required to file with FMCSA Form MCS-150 (Motor Carrier Identification
Report), Form MCS-150B (Motor Carrier Identification Report and
Hazardous Material Permit Application), or Form MCSA-1. These
registration forms require motor carriers to report the number of
drivers they employ and are the source of driver counts in MCMIS, which
counts the total number of drivers reported by both domestic and
foreign motor carriers. In turn, FMCSA uses the MCMIS driver population
data published in FMCSA's annual Pocket Guide to Large Truck and Bus
Statistics, which includes drivers employed by Canadian and Mexican
motor carriers, to calculate the burden associated with information
collections and paperwork. Thus, requests for MVR equivalents for
drivers holding licenses issued by Canadian or Mexican licensing
authorities have already been included in the OMB-approved information
collections for Sec. Sec. 391.23 and 391.25. In addition, the time for
all drivers to prepare and submit employment applications has already
been included in the information collection for Sec. 391.21.
This change under the FMCSRs to require inquiries to Canadian and
Mexican driver's licensing authorities would have minimal, if any,
impact, because relatively few drivers operate in the United States who
are licensed by a foreign authority rather than by a State. Of the 6.2
million CMV drivers reported in FMCSA's 2018 Pocket Guide to Large
[[Page 80752]]
Truck and Bus Statistics,\10\ the Agency estimates that at most only
2.0 percent are employed by Canadian motor carriers operating in the
United States and 0.5 percent are employed by Mexican motor carriers
operating in the United States. The combined total 2.4 percent
represents 139,744 drivers reported as being employed by Canadian and
Mexican motor carriers.\11\
---------------------------------------------------------------------------
\10\ Available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/safety/data-and-statistics/413361/fmcsa-pocket-guide-2018-final-508-compliant.pdf (accessed Apr. 22, 2019).
\11\ The sum of the number of Canadian and Mexican drivers as a
percentage of the total number of drivers in Exhibit 1-10 does not
equal 2.5 percent due to rounding.
---------------------------------------------------------------------------
Canadian and Mexican motor carriers are already required by their
applicable safety codes to request the equivalent of MVRs for their
drivers from their licensing authorities.\12\ Accordingly, FMCSA has
determined that the proposed changes to Sec. Sec. 391.23 and 391.25 to
require inquiries to Canadian and Mexican driver's licensing
authorities for the equivalent of MVRs would not impose any new
recordkeeping or reporting costs or burdens because Canadian and
Mexican motor carriers are already making the inquiries. Though
Canadian and Mexican motor carriers would not be required to change
their current business practices and would not have any new costs or
burdens imposed as a result of the proposed rule, FMCSA continues to
include the costs and burdens for requesting MVR equivalents in the
current OMB-approved information collections to treat all carriers
consistently and for administrative convenience.
---------------------------------------------------------------------------
\12\ Canadian National Safety Code (NSC) Standard 15, Facility
Audit, establishes the minimum requirements for Provincial and
Territorial licensing authorities' regulations that specify the
content of driver abstracts. Standard 15, Appendix A, Section 3
requires motor carriers to make available for a Facility Audit a
driver abstract issued within the last 12 months. The abstract must
include name, date of birth and license number, current license
class and status (e.g., active or suspended), driver qualifications,
and 2-year histories of traffic and criminal driving offenses,
convictions, and accidents. NSC Standard 15 is available at https://ccmta.ca/en/national-safety-code/national-safety-code-nsc#NSC
(accessed Apr. 17, 2019). Similarly, the ``Reglamento del Servicio
de Medicina Preventiva en el Transporte'' (Transportation Preventive
Medicine Service Regulations) in Chapter VI (Of Solitary
Responsibility of the Concessionaire or Permittee, or Airline
Operator), Article 39 provides generally that motor carriers are to
keep updated individual files for their employees that include
records related to accidents or incidents of federal transport. The
regulations are available at: http://www.sct.gob.mx/fileadmin/DireccionesGrales/DGPMPT/Documentos/normatividad/Reglamento_DGPMPT_10-05-2013.pdf (accessed June 3, 2019).
---------------------------------------------------------------------------
The proposed rule would not increase costs to motor carriers
because of fees paid to Canadian and Mexican driver's licensing
authorities to request MVR equivalents. The supporting statement (OMB
Control Number 2126-0004) for the ``Driver Qualification Files''
information collection, available in the docket, provides that SDLAs
assess motor carriers a $10 fee to obtain MVRs consisting of a $9
median fee charged by 51 SDLAs, plus a $1 third-party processing fee.
FMCSA has surveyed fees charged by driver's licensing authorities and
third-party processing companies in Canada. FMCSA has determined that
the median fee charged for a MVR equivalent in Canada is also $9, when
adjusted to United States dollars, and that third-party processing fees
are consistent as well. There is no fee to request MVR equivalents in
Mexico. However, fees are considered a transfer payment. Thus, the
requirement that motor carriers obtain MVRs from Canadian and Mexican
driver's licensing authorities are transfer payments so they are not
included in the benefit-cost analysis. They are included in the
Paperwork Reduction Act supporting statement prepared for the proposed
rule.
For all the above reasons, FMCSA has determined that the proposed
changes to Sec. Sec. 391.23 and 391.25 to require inquiries to
Canadian and Mexican driver's licensing authorities to request MVR
equivalents would not impose any new reporting or recordkeeping costs.
Scope and Key Inputs to the Analysis
The baseline for this analysis is the monetized value of motor
carriers' and drivers' time spent meeting the annual reporting and
recordkeeping requirements of Sec. 391.27. The estimated cost of this
information collection has been approved by OMB in an information
collection request (ICR) titled ``Driver Qualification Files,'' OMB
Control Number 2126-0004, which expires April 30, 2023. The Agency
estimated the 3-year average burden associated with Sec. 391.27 at
0.12 million hours and $3.9 million. The baseline in this analysis
extends the supporting statement projections an additional 7 years.
That is, it estimates the costs that drivers and motor carriers would
incur over the 10-year period 2021 through 2030, in the absence of the
proposed rule.
Driver Population Projection
The driver population is based on a 0.595 percent annual growth
rate applied to the 6.2 million driver population as of December 29,
2017, reported in FMCSA's 2018 Pocket Guide to Large Truck and Bus
Statistics.\13\ The growth rate is a weighted average of the annual
compound growth rates estimated using the United States Department of
Labor, Bureau of Labor Statistics (BLS) Employment Projections Program
point projections for the four categories of commercial vehicle drivers
for 2016 and 2026.
---------------------------------------------------------------------------
\13\ Available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/docs/safety/data-and-statistics/413361/fmcsa-pocket-guide-2018-final-508-compliant.pdf (accessed Apr. 22, 2019).
---------------------------------------------------------------------------
Table 1 shows the calculation of the growth rate and the
calculation of the weighted average compound growth rate.
Table 1--Population Growth Rate
----------------------------------------------------------------------------------------------------------------
Compound Weighted
2016 Total 2016 2026 Total annual growth average
BLS standard occupation employment Employment employment rate in compound
(thousands) percentage of (thousands) employment growth rate
total (2016-2026) (percent)
A B = A/3,512 C D = ((C/A) E = B x D
[supcaret] (1/
10))-1
----------------------------------------------------------------------------------------------------------------
Heavy and tractor-trailer truck 1,871 53.3 1,980 0.568 0.303
drivers........................
Light truck or delivery services 953 27.1 953 0.634 0.17
drivers........................
Bus drivers, school or special 508 14.5 508 0.525 0.08
client.........................
Bus drivers, transit and 179 5.1 179 0.864 0.04
intercity......................
-------------------------------------------------------------------------------
[[Page 80753]]
3,512 100 3,620 .............. 0.595
----------------------------------------------------------------------------------------------------------------
Note: The 0.595 percent weighted average growth rate does not equal the sum of the components due to rounding.
Table 2 shows the extrapolation of the driver population from the
6.2 million driver population on December 29, 2017, at a 0.595 percent
average annual growth. The 10-year projection period used in this
analysis begins in 2021 and ends in 2030. This 10-year population
projection is the base from which the Agency estimates the number of
drivers, which in the absence of the proposed rule, would be required
to provide motor carriers an annual list of violations.
Table 2--Driver Population 2021-2030
------------------------------------------------------------------------
Number of
Year drivers
------------------------------------------------------------------------
2017.................................................... 6,200,000
2018.................................................... 6,236,870
2019.................................................... 6,273,960
2020.................................................... 6,311,270
2021.................................................... 6,348,802
2022.................................................... 6,386,558
2023.................................................... 6,424,538
2024.................................................... 6,462,743
2025.................................................... 6,501,176
2026.................................................... 6,539,838
2027.................................................... 6,578,729
2028.................................................... 6,617,852
2029.................................................... 6,657,207
2030.................................................... 6,696,796
------------------------------------------------------------------------
The number of drivers who would no longer be required to submit an
annual list of convictions for traffic violations is estimated as the
difference between the projections of annual driver population and
annual job openings. The number of job openings is estimated by
applying a 71.6 percent average annual driver turnover rate to the
annual driver population shown in Table 2. The turnover rate is derived
from turnover rates reported for three categories of motor carriers by
the American Trucking Associations, which are over-the-road carriers
(OTR) at 98 percent, truckload carriers (TL) at 72 percent, and less-
than-truckload carriers (LTL) at 14 percent. The OTR category is made
up predominantly of CMV drivers transporting general freight on behalf
of for-hire motor carriers. The TL category is made up predominantly of
CMV drivers transporting specialized freight on behalf of for-hire
motor carriers. The LTL category is made up of CMV drivers transporting
the property of their motor carrier and drivers engaged in specialized
operations analogous to LTL operations. The individual turnover rates
are weighted by the relative shares of the driver population
distributed among the three categories of motor carriers, which are 52
percent for OTR drivers, 24 percent for TL drivers, and 24 percent for
LTL drivers.\14\ As shown in Table 3, the sum of the product of the
turnover rates and percentage of drivers by category results in a 71.6
percent weighted average turnover rate.
---------------------------------------------------------------------------
\14\ American Transportation Research Institute, ATRI Analysis
of the Operational Cost of Trucking: 2018 Update. Available at
http://atri-online.org/wp-content/uploads/2018/10/ATRI-Operational-Costs-of-Trucking-2018.pdf (accessed Apr. 22, 2019).
Table 3--Weighted Average Turnover Rate
------------------------------------------------------------------------
Percent of
Turnover rate drivers in
Driver type (percent) driver type
category
------------------------------------------------------------------------
Over-the-Road........................... 98 52
Truckload............................... 72 24
Less-than-Truckload Drivers............. 14 24
-------------------------------
Weighted Average Turnover Rate...... .............. 71.6
------------------------------------------------------------------------
Note: The weighted average turnover rate is calculated as: (98% x 52%) +
(72% x 24%) + (14% x 24%) = 71.6%.
Table 4 shows the annual projections of the number of drivers
subject to the reporting requirements of Sec. 391.27 who would no
longer have to submit a list of convictions for traffic violations if
Sec. 391.27 is rescinded. The projections cover the 10-year period
ending in 2030. Drivers who have been recently hired are not subject to
the annual reporting requirements of Sec. 391.27. The hiring process
includes similar reporting requirements for which the information
collection burden is accounted for under a different regulation.
[[Page 80754]]
Table 4--Driver Population Affected by Proposed Rule
----------------------------------------------------------------------------------------------------------------
Driver
Driver Number of job population
Year population openings subject to
Sec. 391.27
A = From Table B = A x 71.6% C = A-B
2
----------------------------------------------------------------------------------------------------------------
2021............................................................ 6,348,802 4,545,743 1,803,060
2022............................................................ 6,386,558 4,572,775 1,813,782
2023............................................................ 6,424,538 4,599,969 1,824,569
2024............................................................ 6,462,743 4,627,324 1,835,419
2025............................................................ 6,501,176 4,654,842 1,846,334
2026............................................................ 6,539,838 4,682,524 1,857,314
2027............................................................ 6,578,729 4,710,370 1,868,359
2028............................................................ 6,617,852 4,738,382 1,879,470
2029............................................................ 6,657,207 4,766,560 1,890,647
2030............................................................ 6,696,796 4,794,906 1,901,890
----------------------------------------------------------------------------------------------------------------
Wage Rates
FMCSA evaluated the opportunity cost of time for drivers using a
rounded representative driver wage rate of $36 per hour. This hourly
cost represents the value of driver time that, in the absence of the
proposed rule, he or she would spend completing a list of convictions
for traffic violations, but would now be available to perform other
tasks. Table 5 summarizes the estimation of a weighted average hourly
wage of $36.25 for drivers. The weighted average hourly wage is derived
from the BLS Occupational Employment Statistics (OES) estimates of the
median wages of four categories of drivers assigned to BLS Standard
Occupation Codes (SOC), shown in Table 5. The median hourly wages for
each driver SOC are increased to account for fringe benefits and motor
carrier overhead as explained below. The hourly wages are weighted
based on the population of drivers for each SOC relative to the total
population as shown by the percentages in Table 5, Column B.
BLS does not publish data on fringe benefits for specific
occupations, but it does publish fringe benefit data for the broad
industry groups in its quarterly Employer Costs for Employee
Compensation (ECEC) news releases. This analysis uses the ECEC data to
estimate a fringe benefit rate based on the hourly wage for the
``transportation and warehousing'' sector average hourly wage ($25.80)
and average hourly benefits ($14.69) for the ``transportation and
warehousing'' sector.\15\ The ratio of the two values results in a 56.9
percent fringe benefit rate (56.9 percent = $14.69 per hour / $25.80
percent) that is added to the average hourly wage. The hourly wage,
including fringe benefits, is further increased by 27.4 percent to
account for motor carriers' overhead.\16\
---------------------------------------------------------------------------
\15\ U.S. Department of Labor, Bureau of Labor Statistics, Table
10: Employer costs per hour worked for employee compensation and
costs as a percent of total compensation: Private industry workers,
by industry group, June 2018. Available at https://www.bls.gov/news.release/archives/ecec (accessed Apr. 23, 2019).
\16\ Berwick, Farooq. Truck Costing Model for Transportation
Managers, North Dakota State University, Upper Great Plains
Transportation Institute, 2003. Appendix A, pp. 42-47. This estimate
is based on an average cost of $0.107 per mile of CMV operation for
management and overhead, and $0.39 per mile for labor. The ratio of
these values results in an estimated 27.4 percent overhead rate
(27.4 percent = $0.107 / $0.39). Available at: https://www.ugpti.org/resources/reports/details.php?id=475 (accessed Apr.
23, 2019).
Table 5--Driver Hourly Wage Including Fringe Benefits and Motor Carrier Overhead
--------------------------------------------------------------------------------------------------------------------------------------------------------
Fringe Weighted
Standard occupation title and code Total drivers % of total Median hourly Weighted benefits rate Overhead rate average hourly
drivers base wage hourly wage (percent) (percent) cost
A = from BLS B = A/Sum of C = from BLS D = B x C E = from BLS F G = D x
OES Data Column A OES Data ECEC Data (1+0.569) x
(1+0.274)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Heavy and Tractor Trailer Drivers (53- 1,748,140 52.8 $20.42 $10.79 56.9 27.4 $21.57
3032)..................................
Light truck and delivery Service Drivers 877,670 26.5 15.12 4.01 56.9 27.4 8.02
(53-3033)..............................
Bus drivers, school and or special 176,140 5.3 19.61 1.04 56.9 27.4 2.09
client (53-3022).......................
Bus drivers, Transit and Intercity (53- 507,340 15.3 14.93 2.29 56.9 27.4 4.58
3021)..................................
---------------------------------------------------------------------------------------------------------------
Weighted Average Driver Wage........ .............. .............. .............. .............. .............. .............. 36.25
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
(a) The number of drivers is the number of respondents by SOC included in the BLS survey. The coverage and scope of the survey is described at https://www.bls.gov/oes/oes_emp.htm#scope (accessed May 12, 2019).
[[Page 80755]]
(b) The $36.25 hourly weighted average wage does not equal the sum of the components due to rounding.
Section 391.27 requires motor carriers to incur labor costs to file
drivers' lists of convictions for traffic violations in their driver
qualification files. The burden hours associated with this task are
monetized using an hourly wage for a file clerk adjusted for fringe
benefits and motor carrier overhead. The BLS median wage for a file
clerk is $14.48. The hourly wage is increased for fringe benefits and
motor carrier overhead, which results in a $28.96 wage, rounded to $29
($28.96 = $14.48 x (1+56.9%) x (1+27.4%)).
Costs
The proposed rule would result in cost savings to drivers and motor
carriers. Drivers' cost savings would be the result of no longer having
to prepare an annual list of convictions for traffic violations for
their employers. Motor carriers would realize cost savings from no
longer having to file the lists in driver qualification files. The
Agency estimates that drivers and motor carriers would each spend 2
minutes on their respective tasks.
Table 6 shows the estimated driver cost savings resulting from the
removal of Sec. 391.27. Over the 10-year projection period, driver
cost savings are estimated at $22.2 million. At a 7 percent discount
rate, driver cost savings are estimated at $15.6 million and annualized
cost savings are estimated at $2.2 million.
Table 6--Driver Cost Savings
----------------------------------------------------------------------------------------------------------------
Driver
population Driver burden Driver costs Driver cost at
providing hours (2017$ 7% discount
lists of (million) million) rate ($
violations million)
A B = A x (2 C = B x $36 D
Minutes/60)
----------------------------------------------------------------------------------------------------------------
2021............................................ 1,803,060 0.060 ($2.2) ($2.0)
2022............................................ 1,813,782 0.060 (2.2) (1.9)
2023............................................ 1,824,569 0.061 (2.2) (1.8)
2024............................................ 1,835,419 0.061 (2.2) (1.7)
2025............................................ 1,846,334 0.062 (2.2) (1.6)
2026............................................ 1,857,314 0.062 (2.2) (1.5)
2027............................................ 1,868,359 0.062 (2.2) (1.4)
2028............................................ 1,879,470 0.063 (2.3) (1.3)
2029............................................ 1,890,647 0.063 (2.3) (1.2)
2030............................................ 1,901,890 0.063 (2.3) (1.2)
---------------------------------------------------------------
Total....................................... .............. 0.62 (22.2) (15.6)
----------------------------------------------------------------------------------------------------------------
Annualized...................................... .............. .............. .............. (2.2)
----------------------------------------------------------------------------------------------------------------
Notes:
(a) Total cost values may not equal the sum of the components due to rounding (the totals shown in this column
are the rounded sum of unrounded components).
(b) Values shown in parentheses are negative values (i.e., less than zero), and represent a decrease in cost or
a cost savings.
Table 7 summarizes motor carrier projected cost savings. Over the
10-year projection period, motor carrier cost savings are estimated at
$17.9 million. At a 7 percent discount rate, motor carrier cost savings
are estimated at $12.5 million and annualized cost savings at $1.8
million.
Table 7--Motor Carrier Cost Savings
----------------------------------------------------------------------------------------------------------------
Number of Motor carrier
lists of Motor carrier Motor carrier cost at 7%
violations to burden hours costs (2017$ discount rate
file (million) million) ($ million)
A B = A x (2 C = B x $29 D
Minutes/60)
----------------------------------------------------------------------------------------------------------------
2021............................................ 1,803,060 0.060 ($1.7) ($1.6)
2022............................................ 1,813,782 0.060 (1.8) (1.5)
2023............................................ 1,824,569 0.061 (1.8) (1.4)
2024............................................ 1,835,419 0.061 (1.8) (1.4)
2025............................................ 1,846,334 0.062 (1.8) (1.3)
2026............................................ 1,857,314 0.062 (1.8) (1.2)
2027............................................ 1,868,359 0.062 (1.8) (1.1)
2028............................................ 1,879,470 0.063 (1.8) (1.1)
2029............................................ 1,890,647 0.063 (1.8) (1.0)
2030............................................ 1,901,890 0.063 (1.8) (0.9)
---------------------------------------------------------------
Total....................................... .............. 0.62 (17.9) (12.5)
----------------------------------------------------------------------------------------------------------------
[[Page 80756]]
Annualized...................................... .............. .............. .............. (1.8)
----------------------------------------------------------------------------------------------------------------
Notes:
(a) Total cost values may not equal the sum of the components due to rounding (the totals shown in this column
are the rounded sum of unrounded components).
(b) Values shown in parentheses are negative values (i.e., less than zero), and represent a decrease in cost or
a cost savings.
The estimated cost savings resulting from the proposal to rescind
Sec. 391.27 total $40.1 million over the 10-year projection period. At
a 7 percent discount rate, the estimated total cost savings are $28.1
million and the annualized cost savings are $4.0 million.
Benefits
This proposed rule would allow drivers and motor carriers to more
efficiently allocate their time. As discussed above, eliminating the
requirement for drivers to provide a list of their convictions for
traffic violations on an annual basis would reduce the paperwork burden
and result in cost savings for drivers and motor carriers. FMCSA does
not expect this proposed rule to affect safety negatively. Motor
carriers would still be made aware of their employees' convictions for
driving violations via the annual MVR check required in Sec. 391.25.
B. E.O. 13771 (Reducing Regulation and Controlling Regulatory Costs)
This proposed rule is expected to have total costs less than zero,
and, if finalized, would qualify as an E.O. 13771 deregulatory action.
The present value of the cost savings of this proposed rule, measured
on an infinite time horizon at a 7 percent discount rate, expressed in
2016 dollars, and discounted to 2021 (the year the proposed rule, if
finalized, would be expected to go into effect and cost savings would
first be realized), would be $57.8 million. On an annualized basis,
these cost savings would be $4.0 million.
For E.O. 13771 accounting, the April 5, 2017, OMB guidance \17\
requires that agencies also calculate the costs and cost savings
discounted to year 2016. In accordance with this requirement, the
present value of the cost savings of this rule, measured on an infinite
time horizon at a 7 percent discount rate, expressed in 2016 dollars,
and discounted to 2016, would be $41.2 million. On an annualized basis,
the cost savings would be $2.9 million.
---------------------------------------------------------------------------
\17\ Available at https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/memoranda/2017/M-17-21-OMB.pdf (accessed
June 26, 2019).
---------------------------------------------------------------------------
C. Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.),
OIRA designated this rule as not a ``major rule,'' as defined by 5
U.S.C. 804(2).\18\
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\18\ A ``major rule'' means any rule that the Administrator of
Office of Information and Regulatory Affairs at the Office of
Management and Budget finds has resulted in or is likely to result
in (a) an annual effect on the economy of $100 million or more; (b)
a major increase in costs or prices for consumers, individual
industries, Federal agencies, State agencies, local government
agencies, or geographic regions; or (c) significant adverse effects
on competition, employment, investment, productivity, innovation, or
on the ability of United States-based enterprises to compete with
foreign-based enterprises in domestic and export markets (5 U.S.C.
804(2)).
---------------------------------------------------------------------------
D. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) (Pub. L. 96-354, 94 Stat.
1164, September 19, 1980 (5 U.S.C. 601 et seq.)), as amended by the
Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L.
104-121, 110 Stat. 857, Mar. 29, 1996), requires Federal agencies to
consider the impact of their regulatory proposals on small entities,
analyze effective alternatives that minimize small entity impacts, and
make their analyses available for public comment. The term ``small
entities'' means small businesses and not-for-profit organizations that
are independently owned and operated and are not dominant in their
fields, and governmental jurisdictions with populations under 50,000 (5
U.S.C. 601). Accordingly, DOT policy requires an analysis of the impact
of all regulations on small entities, and mandates that agencies strive
to lessen any adverse effects on these entities. FMCSA is therefore
publishing this initial regulatory flexibility analysis to aid the
public in commenting on the potential small business impacts of the
proposals in this NPRM. FMCSA invites all interested parties to submit
data and information regarding the potential economic impact that would
result from adoption of the proposals in this NPRM. FMCSA will consider
all comments received in the public comment process when deciding on
the final regulatory flexibility assessment.
An initial regulatory flexibility analysis must include six
components (5 U.S.C. 603(b) and (c)). The Agency discusses each of the
components below.
1. A description of the reasons why the action by the agency is
being considered.
The Agency is proposing to rescind Sec. 391.27 because the annual
list of convictions for traffic violations that drivers are required to
provide motor carriers is largely duplicative of information reported
on drivers' MVRs that motor carriers are required to obtain from SDLAs
on an annual basis pursuant to Sec. 391.25. The Agency finds that the
information reported on MVRs that motor carriers obtain from driver's
licensing authorities is sufficient, without drivers having to provide
an annual list of violations. Thus, the proposed rule relieves drivers
and motor carriers of the reporting and recordkeeping costs incurred to
comply with Sec. 391.27, without compromising safety.
Section 391.25 currently applies to all motor carriers, domestic
and foreign, but is limited to inquiries for drivers licensed by a
State. To ensure motor carriers are aware of convictions for traffic
violations for a driver who is licensed by a foreign authority rather
than by a State, FMCSA proposes to amend Sec. 391.25(a) to require
that motor carriers make an annual inquiry to each driver's licensing
authority where a driver holds or has held a CMV operator's license or
permit. For example, any motor carrier that employs
[[Page 80757]]
a driver who holds a Canadian or Mexican license to operate a CMV and
is authorized to operate in the United States would be required to
request the equivalent of an MVR from the applicable Canadian or
Mexican licensing authority where the driver is licensed. The proposed
rule would make conforming changes to Sec. Sec. 391.21 and 391.23 with
respect to the hiring-related inquiries for MVRs motor carriers are
required to perform.
2. A succinct statement of the objectives of, and legal basis for,
the proposed rule.
The objective of this rulemaking is to reduce redundant regulatory
requirements where applicable.
The statutory authority for Sec. Sec. 391.21, 391.23, 391.25, and
391.27 in title 49 of the CFR derives from the Motor Carrier Act of
1935 and the Motor Carrier Safety Act of 1984, both as amended. In
addition, the Secretary has discretionary authority under 49 U.S.C.
31133(a)(8) to prescribe (and thus to remove) recordkeeping and
reporting requirements. This deregulatory action, to eliminate Sec.
391.27, rests on that authority. This statutory authority is delegated
to FMCSA by Sec. 1.87. A full explanation of the legal basis for this
rulemaking is set forth in Section III.
3. A description, and, where feasible, an estimate of the number of
small entities to which the proposed rule will apply.
``Small entity'' is defined in 5 U.S.C. 601(6) as having the same
meaning as the terms ``small business'' in paragraph (3), ``small
organization'' in paragraph (4), and ``small governmental
jurisdiction'' in paragraph (5). Section 601(3) defines a small
business as a ``small business concern'' under section 3 of the Small
Business Act (15 U.S.C. 632(a)), which means a business that is
independently owned and operated and is not dominant in its field of
operation. Section 601(4) defines small organizations as not-for-profit
enterprises that are independently owned and operated, and are not
dominant in their fields of operation. Additionally, section 601(5)
defines small governmental jurisdictions as governments of cities,
counties, towns, townships, villages, school districts, or special
districts with populations of less than 50,000.
This proposed rule would affect interstate CMV drivers and
interstate motor carriers. CMV drivers, however, do not meet the
definition of a small entity in section 601 of the RFA. Specifically,
CMV drivers are considered neither a small business under section
601(3) of the RFA, nor a small organization under section 601(4) of the
RFA.\19\
---------------------------------------------------------------------------
\19\ Though individual CMV drivers are not small entities for
purposes of the RFA, individual CMV drivers who are owner-operators
are considered small businesses for purposes of the RFA. In
addition, driver and motor carrier cost savings are estimated on a
per driver basis using an estimate of the total driver population
that includes owner-operators.
---------------------------------------------------------------------------
FMCSA used data from the 2012 Economic Census to determine the
percentage of motor carriers with annual revenue at or below the Small
Business Administration's (SBA) thresholds.\20\ The SBA thresholds are
used to classify a business as a small business for purposes of
determining eligibility to participate in SBA and Federal contracting
programs.\21\ The Economic Census sums the number of firms classified
according to their North American Industry Classification System
(NAICS) code by ranges of annual revenue. The ranges with the high end
closest to the SBA thresholds was used to determine the percentage of
trucking firms and passenger carriers that meet the definition of an
SBA small business. FMCSA used the Economic Census as the basis for
estimating the number of small entities affected by the proposed rule.
As discussed below, the Agency estimates that 98.7 percent of trucking
firms and 95.2 percent of passenger carriers are classified as small
businesses.
---------------------------------------------------------------------------
\20\ U.S. Census Bureau, 2012 Economic Survey, Table
EC1248SSSZ4-Summary Statistics by Revenue and Size of Firm.
Available at https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_48SSSZ4&prodType=table
(accessed Apr. 24, 2019).
\21\ The SBA regulation defining small business size standards
by North American Industry Classification System codes is set forth
in 13 CFR 121.201.
---------------------------------------------------------------------------
The Economic Census and the SBA aggregate revenue data for the
Truck Transportation industry under the NAICS Code 484. The SBA
threshold for NAICS Code 484 is $30 million. For purposes of
determining the percentage of trucking firms with annual revenue less
than or equal to $30 million, the Agency considered the annual revenue
for all truck transportation firms reported in the Economic Survey
under NAICS Code 484. The Economic Survey revenue range closest to the
SBA $30.0 million threshold includes all truck transportation firms
with annual revenue ranging from $10.0 million to $24.9 million. The
total number of truck transportation firms within the 8 ranges of
annual revenue less than or equal to $30.0 million accounts for 98.7
percent of survey respondents. The Agency finds that this 98.7 percent
is a reasonable proxy for the number of trucking firms with annual
revenue equal to or less than the $30.0 million SBA threshold.
The Agency used the same methodology to determine the percentage of
passenger carriers that qualify as an SBA small business. The SBA
threshold for Transit and Ground Transportation firms (NAICS Code 485)
is $16.5 million. For purposes of determining the percentage of
passenger carriers with annual revenue less than or equal to $16.5
million, the Agency considered the number of passenger carriers in
three NAICS Code subsectors: Charter Bus; Interurban Transportation and
Rural Transportation; and School and Employee Transportation
subsectors.\22\ The Economic Census revenue range closest to the SBA
$16.5 million threshold includes passenger carriers with revenue
ranging from $5 million to $9.9 million. Passenger carriers with
revenue less than or equal to $9.9 million account for 95.2 percent of
survey respondents within the three subsectors. Thus, the Agency finds
that 95.2 percent of passenger carriers with revenue less than or equal
to $9.9 million is approximately the same percentage of those with
annual revenue less than the $16.5 million SBA threshold.
---------------------------------------------------------------------------
\22\ Commuter rail, public transit systems, taxi, limousine, and
special needs transportation that are included in Subsector 485 are
excluded from the analysis.
---------------------------------------------------------------------------
4. A description of the projected reporting, recordkeeping, and
other compliance requirements of the proposed rule, including an
estimate of the classes of small entities that will be subject to the
requirement and the types of professional skills necessary for
preparation of the report or record.
By rescinding Sec. 391.27, the proposed rule would eliminate
reporting and recordkeeping costs incurred by drivers and motor
carriers. For a discussion of the paperwork burden associated with the
proposed rule, see Section IX.F., below. CMV drivers would no longer be
required to provide their employer an annual list of convictions for
traffic violations. All motor carriers would be relieved from the
recordkeeping cost of filing the lists in driver qualification files.
5. An identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap, or conflict with the
proposed rule.
The Agency proposes to rescind Sec. 391.27 because it duplicates
information regarding drivers' convictions for traffic violations that
is reported on MVRs that motor carriers are required to request from
SDLAs annually pursuant to Sec. 391.25. Section
[[Page 80758]]
391.25, as revised, would require motor carriers to request MVRs
annually from every licensing authority where a driver holds or has
held a CMV operator's license or permit in the past year. In addition,
a conforming change would be made to Sec. 391.23(a) to require motor
carriers to request MVRs from all driver's licensing authorities when
hiring new drivers.
6. A description of any significant alternatives to the proposed
rule which accomplish the stated objectives of applicable statutes and
which minimize any significant economic impact of the proposed rule on
small entities.
There is no significant economic impact on small entities because
of the proposed rule. FMCSA did not identify any significant
alternatives to the proposed rule that would result in equivalent cost
savings to small entities, as compared to those resulting from the
elimination of Sec. 391.27.
E. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996, FMCSA wants to assist small entities
in understanding this proposed rule so that they can better evaluate
its effects on themselves and participate in the rulemaking initiative.
If the proposed rule would affect your small business, organization, or
governmental jurisdiction and you have questions concerning its
provisions or options for compliance, please consult the person listed
under FOR FURTHER INFORMATION CONTACT.
Small businesses may send comments on the actions of Federal
employees who enforce or otherwise determine compliance with Federal
regulations to the SBA's Small Business and Agriculture Regulatory
Enforcement Ombudsman and the Regional Small Business Regulatory
Fairness Boards. The Ombudsman evaluates these actions annually and
rates each agency's responsiveness to small business. If you wish to
comment on actions by employees of FMCSA, call 1-888-REG-FAIR (1-888-
734-3247). DOT has a policy regarding the rights of small entities to
regulatory enforcement fairness and an explicit policy against
retaliation for exercising these rights.
F. Unfunded Mandates Reform Act of 1995
The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538)
requires Federal agencies to assess the effects of their discretionary
regulatory actions. In particular, the Act addresses actions that may
result in the expenditure by a State, local, or tribal government, in
the aggregate, or by the private sector of $168 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2019 levels) or more in any 1 year. Though this proposed rule would not
result in such an expenditure, the Agency does discuss the effects of
this rule elsewhere in this preamble.
G. Paperwork Reduction Act
The Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520) requires
that an agency consider the impact of paperwork and other information
collection burdens imposed on the public. Section 1320.8(b)(3)(vi) of
Title 5 of the CFR prohibits an agency from collecting or sponsoring an
information collection, as well as imposing an information collection
requirement, unless the collection vehicle displays a valid OMB control
number. This proposed rule would amend the existing information
collection titled ``Driver Qualification Files,'' OMB Control Number
2126-0004, which expires April 20, 2023. In accordance with 44 U.S.C.
3507(d), FMCSA will submit the proposed information collection
amendments to OMB for its approval.
This proposed rule would eliminate the information collections
required by Sec. 391.27. Under Sec. 391.27, a driver operating a CMV
must complete a list of convictions for traffic violations and submit
the list to his or her employer on an annual basis. When a driver does
not have any violations to report, the driver is required to furnish a
certification to that effect. The motor carrier must file the list of
violations or certification of no violations in the driver's
qualification file. These requirements are largely duplicative of the
requirements in Sec. 391.25 that motor carriers make an annual inquiry
to SDLAs to request a driver's MVR and file the MVR in the driver's
qualification file.
Because Sec. 391.25 is currently limited to inquiries for drivers
licensed by a State, the proposed rule would modify Sec. 391.25 to
require motor carriers to request a driver's MVR from each licensing
authority that issued the driver a license. This change would require
motor carriers to request the MVR equivalent from Canadian and Mexican
driver's licensing authorities. To maintain consistency within part 391
with respect to requests for MVRs, FMCSA proposes to make conforming
changes to Sec. 391.23, which requires motor carriers to request MVRs
from SDLAs for the 3 years preceding the date of employment when hiring
a driver. A change also would be made in Sec. 391.21 to require each
driver to provide on the employment application the issuing driver's
licensing authority, instead of State, of each unexpired CMV operator's
license or permit that has been issued to the driver so motor carriers
could make the required inquiries under Sec. 391.23.
The proposed changes to Sec. Sec. 391.21, 391.23, and 391.25 would
not increase paperwork burdens. This is because MCMIS, the repository
for the Agency's driver population data, counts the total number of
drivers reported by motor carriers, both foreign and domestic, and for
purposes of information collection burden calculation, the median fee
for obtaining an MVR or its equivalent from either a foreign or a
domestic authority are the same.\23\ FMCSA uses the MCMIS driver
population data, which currently includes drivers employed by Canadian
and Mexican motor carriers, to calculate the burden associated with
information collections and paperwork. Therefore, though the proposed
rule would institute new requirements for motor carriers to request
MVRs for their drivers operating in the United States who are licensed
by a foreign authority rather than by a State, the current OMB-approved
information collections for Sec. Sec. 391.23 and 391.25 in the
``Driver Qualification Files'' ICR already include reporting and
recordkeeping costs incurred by motor carriers to request MVRs for such
drivers. Similarly, the current OMB-approved information collection for
Sec. 391.21 already includes reporting and recordkeeping costs
incurred by drivers to prepare and submit employment applications.
---------------------------------------------------------------------------
\23\ Though Mexican motor carriers do not pay a fee to obtain
MVR equivalents, FMCSA continues to include the cost for consistency
and administrative convenience.
---------------------------------------------------------------------------
The proposed changes to Sec. Sec. 391.23 and 391.25 also would not
increase costs to motor carriers because of fees paid to Canadian and
Mexican driver's licensing authorities to obtain the equivalent of
MVRs. As set forth in section 13 of the supporting statement, FMCSA has
surveyed fees charged by driver's licensing authorities and third-party
processing companies in Canada and has determined that they are
consistent with those to obtain MVRs from States. However, there is no
fee to obtain MVR equivalents in Mexico.
The proposed elimination of Sec. 391.27 would delete IC-2.1
(driver submits list of violations to motor carrier) and IC-2.2 (motor
carrier files list of violations in driver qualification file). The
supporting statement shows the burden associated with IC-2.1 is 0.6
million hours and $2.16 million. The burden associated with IC-2.2 is
0.6 million
[[Page 80759]]
hours and $1.74 million. Thus, the elimination of Sec. 391.27 would
result in a paperwork burden reduction of 0.12 million hours and $3.9
million for drivers and motor carriers.
The draft supporting statement for the ICR prepared for this
rulemaking is compared to the approved supporting statement for the
ICR. The draft supporting statement accounts for the incremental
reduction in burden hours and costs realized from rescinding Sec.
391.27 and updates the driver population. The draft supporting
statement burden hours and costs cover the 3-year period ending in
2023, whereas the approved supporting statement covers the 3-year
period ending in 2022. Response times for each information collection
and hourly wage rate used to monetize burden hours have not been
changed. The Agency has decreased its estimate of the total information
collection burden from 12.26 million hours at a cost of $350.45
million, to 12.22 million hours at a cost of $348.61 million. The net
reporting and recordkeeping cost savings in the draft supporting
statement prepared for this proposed rule are estimated at $1.84
million ($350.45 million-$348.61 million). The estimated $3.9 million
cost savings from rescinding Sec. 391.27 are partially offset by a
$2.06 million increase in labor costs for other components of the ICR,
adjusted for population growth. Thus, the estimated net reduction in
reporting and recordkeeping costs is $1.84 million ($3.90 million-$2.06
million).
Title: Driver Qualification Files.
OMB Control Number: 2126-0004.
Type of Review: Revision of a currently-approved information
collection.
Summary: The proposed rule would eliminate Sec. 391.27 and the
requirements that a driver operating a CMV complete a list of
convictions for traffic violations or a certification of no traffic
violations, and submit the list or certification to his or her employer
on an annual basis. The motor carrier must file the lists and
certifications in the driver's qualification file. The proposed
elimination of Sec. 391.27 would delete current IC-2.1 (driver submits
list of violations to motor carrier) and IC-2.2 (motor carrier files
list of violations in driver qualification file). In the summary
statistics below, motor carriers are included in the estimated number
of respondents.
Estimated Number of Respondents: 6.93 million (6.39 million drivers
+ 0.54 million motor carriers).
Estimated responses: 98.37 million.
Frequency: Responses may be random, annual, or when hiring a
driver.
Estimated burden hours: 12.22 million.
Estimated cost: $348.61 million.
FMCSA asks for comment on the information collection requirements
of this proposed rule, as well as the total paperwork burden for the
ICR. The Agency's analysis of these comments will be used in devising
the Agency's estimate of the information collection burden of the final
rule. The draft rulemaking and approved supporting statements for this
ICR are available in the docket for comment and review.
Specifically, the Agency asks for comment on: (1) Whether the
proposed information collection is necessary for FMCSA to perform its
functions; (2) how the Agency can improve the quality, usefulness, and
clarity of the information to be collected; (3) the accuracy of FMCSA's
estimate of the burden of this information collection; and (4) how the
Agency can minimize the burden of the information collection.
If you have comments on the collection of information, you must
send those comments as described under Section I.E. of the
SUPPLEMENTARY INFORMATION section at the beginning of this document.
H. E.O. 13132 (Federalism)
A rule has implications for federalism under section 1(a) of E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.'' FMCSA determined that this proposal would not have
substantial direct costs on or for States, nor would it limit the
policymaking discretion of States. Nothing in this document preempts
any State law or regulation. Therefore, this rule does not have
sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
I. Privacy
Section 522 of title I of division H of the Consolidated
Appropriations Act, 2005 (Pub. L. 108-447, 118 Stat. 2809, 3268 (Dec.
8, 2004), note following 5 U.S.C. 552a), requires the Agency to conduct
a privacy impact assessment of a regulation that will affect the
privacy of individuals. The assessment considers impacts of the rule on
the privacy of information in an identifiable form and related matters.
The FMCSA Privacy Officer has evaluated the risks and effects the
rulemaking might have on collecting, storing, and sharing personally
identifiable information and has evaluated protections and alternative
information handling processes in developing the rule to mitigate
potential privacy risks. FMCSA determined that this proposed rule does
not create privacy risks to individuals.
In addition, the Agency submitted a Privacy Threshold Assessment
analyzing the rulemaking to the DOT, Office of the Secretary's Privacy
Office. The DOT Privacy Office also has determined that this rulemaking
does not create privacy risk.
The E-Government Act of 2002, Public Law 107-347, sec. 208, 116
Stat. 2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct
a privacy impact assessment for new or substantially changed technology
that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information because of this proposed
rule.
J. E.O. 13175 (Indian Tribal Governments)
This proposed rule does not have Tribal implications under E.O.
13175, Consultation and Coordination with Indian Tribal Governments,
because it does not have a substantial direct effect on one or more
Indian Tribes, on the relationship between the Federal Government and
Indian Tribes, or on the distribution of power and responsibilities
between the Federal Government and Indian Tribes.
K. National Environmental Policy Act of 1969
FMCSA analyzed this proposed rule consistent with the National
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and
determined this action is categorically excluded from further analysis
and documentation in an environmental assessment or environmental
impact statement under FMCSA Order 5610.1 (69 FR 9680, Mar. 1, 2004),
Appendix 2, paragraph 6.s.(2). The Categorical Exclusion (CE) in
paragraph 6.s.(2) covers a requirement for drivers to notify their
current employer and State of domicile of certain convictions. The
proposed deregulatory action in this rulemaking is covered by this CE,
there are no extraordinary circumstances present, and the proposed rule
would not have any effect on the quality of the environment.
[[Page 80760]]
List of Subjects
49 CFR Part 385
Administrative practice and procedure, Highway safety, Mexico,
Motor carriers, Motor vehicle safety, Reporting and recordkeeping
requirements.
49 CFR Part 391
Alcohol abuse, Drug abuse, Drug testing, Highway safety, Motor
carriers, Reporting and recordkeeping requirements, Safety, and
Transportation.
Accordingly, FMCSA proposes to amend 49 CFR chapter III to read as
follows:
PART 385--SAFETY FITNESS PROCEDURES
0
1. The authority citation for Part 385 is revised to read as follows:
Authority: 49 U.S.C. 113, 504, 521(b), 5105(d), 5109, 5113,
13901-13905, 13908, 31135, 31136, 31144, 31148, 31151, 31502; sec.
350, Pub. L. 107-87, 115 Stat. 833, 864; and 49 CFR 1.87.
0
2. Amend Appendix B to Part 385, section VII, by removing the entry for
``Sec. 391.51(b)(7)'' and adding an entry for ``Sec. 391.51(b)(6)''
to read as follows:
Appendix B to Part 385--Explanation of Safety Rating Process
* * * * *
VII. List of Acute and Critical Regulations.
* * * * *
Sec. 391.51(b)(6) Failing to maintain medical examiner's certificate
in driver's qualification file (critical).
* * * * *
PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS
0
3. The authority citation for part 391 continues to read as follows:
Authority: 49 U.S.C. 504, 508, 31133, 31136, 31149, 31502; sec.
4007(b), Pub. L. 102-240, 105 Stat. 1914, 2152; sec. 114, Pub. L.
103-311, 108 Stat. 1673, 1677; sec. 215, Pub. L. 106-159, 113 Stat.
1748, 1767; sec. 32934, Pub. L. 112-141, 126 Stat. 405, 830; secs.
5403 and 5524, Pub. L. 114-94, 129 Stat. 1312, 1548, 1560; sec. 2,
Pub. L. 115-105, 131 Stat. 2263; and 49 CFR 1.87.
Sec. 391.11 General qualifications of drivers [Amended]
0
4. Amend Sec. 391.11 by removing paragraph (b)(6) and redesignating
paragraphs (b)(7) and (8) as paragraphs (b)(6) and (7), respectively.
0
5. Amend Sec. 391.21 by revising paragraph (b)(5) to read as follows:
Sec. 391.21 Application for employment.
* * * * *
(b) * * *
(5) The issuing driver's licensing authority, number, and
expiration date of each unexpired commercial motor vehicle operator's
license or permit that has been issued to the applicant;
* * * * *
0
6. Amend Sec. 391.23 by revising paragraphs (a)(1) and (b) to read as
follows:
Sec. 391.23 Investigation and inquiries.
(a) * * *
(1) An inquiry, within 30 days of the date the driver's employment
begins, to each driver's licensing authority where the driver held or
holds a motor vehicle operator's license or permit during the preceding
3 years to obtain that driver's motor vehicle record.
* * * * *
(b) A copy of the motor vehicle record(s) obtained in response to
the inquiry or inquiries to each driver's licensing authority required
by paragraph (a)(1) of this section must be placed in the driver
qualification file within 30 days of the date the driver's employment
begins and be retained in compliance with Sec. 391.51. If no motor
vehicle record is received from a driver's licensing authority required
to submit this response, the motor carrier must document a good faith
effort to obtain such information. The inquiry to a driver's licensing
authority must be made in the form and manner each authority
prescribes.
* * * * *
0
7. Revise Sec. 391.25(a) to read as follows:
Sec. 391.25 Annual inquiry and review of driving record.
(a) Except as provided in subpart G of this part, each motor
carrier shall, at least once every 12 months, make an inquiry to obtain
the motor vehicle record of each driver it employs, covering at least
the preceding 12 months, to each driver's licensing authority where the
driver held a commercial motor vehicle operator's license or permit
during the time period.
* * * * *
Sec. 391.27 [Removed and Reserved]
0
8. Remove and reserve Sec. 391.27.
0
9. Amend Sec. 391.51 as follows:
0
a. Revise paragraphs (b)(2) and (4);
0
b. Remove paragraph (b)(6) and redesignate paragraphs (b)(7) through
(9) as paragraphs (b)(6) through (8), respectively;
0
c. Revise paragraph (d)(1);
0
d. Remove paragraph (d)(3) and redesignate paragraphs (d)(4) through
(6) as paragraphs (d)(3) through (5), respectively; and
0
e. Revise newly redesignated paragraph (d)(3).
The revisions to read as follows:
Sec. 391.51 General requirements for driver qualification files.
* * * * *
(b) * * *
(2) A copy of the motor vehicle record received from each driver's
licensing authority pursuant to Sec. 391.23(a)(1);
* * * * *
(4) The motor vehicle record received from each driver's licensing
authority to the annual driver record inquiry required by Sec.
391.25(a);
* * * * *
(d) * * *
(1) The motor vehicle record received from each driver's licensing
authority to the annual driver record inquiry required by Sec.
391.25(a);
* * * * *
(3) The medical examiner's certificate required by Sec. 391.43(g),
a legible copy of the certificate, or, for CDL drivers, any CDLIS MVR
obtained as required by Sec. 391.51(b)(6)(ii);
* * * * *
0
10. Amend Sec. 391.63 by revising paragraphs (a)(3) and (4) and
removing paragraph (a)(5) to read as follows:
Sec. 391.63 Multiple-employer drivers.
(a) * * *
(3) Perform the annual driving record inquiry required by Sec.
391.25(a); or
(4) Perform the annual review of the person's driving record
required by Sec. 391.25(b).
* * * * *
Issued under authority delegated in 49 CFR 1.87.
James W. Deck,
Deputy Administrator.
[FR Doc. 2020-26957 Filed 12-11-20; 8:45 am]
BILLING CODE 4910-EX-P