[Federal Register Volume 77, Number 149 (Thursday, August 2, 2012)]
[Proposed Rules]
[Pages 46010-46014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-18902]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Parts 383

[Docket No. FMCSA-2012-0172]
RIN 2126-AB43


Self Reporting of Out-of-State Convictions

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

ACTION: Notice of proposed rulemaking; request for comments.

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

SUMMARY: Current regulations require both commercial driver's license 
(CDL) holders and States with certified CDL programs to report a CDL 
holder's out-of-State traffic conviction to the driver's State of 
licensure. FMCSA proposes to reduce the impact of this reporting 
redundancy by providing that if a State in which the conviction occurs 
has a certified CDL program in substantial compliance with FMCSA's 
regulations, then an individual CDL holder convicted in that State is 
considered to be in compliance with his/her out-of-State traffic 
conviction reporting obligations because the State where the conviction 
occurred will report the violation to the CDL holder's State of 
licensure. This proposed change would reduce a regulatory burden on 
both individuals and States.

DATES: Comments must be received on or before October 1, 2012.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2012-0172 using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the online instructions for submitting comments.

[[Page 46011]]

     Mail: Docket Management Facility, 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., between 9 a.m. and 5 p.m. 
E.T., Monday through Friday, except Federal holidays.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section below for instructions on 
submitting comments. Comments received after the comment closing date 
will be included in the docket, and we will consider late comments to 
the extent practicable. FMCSA may, however, issue a final rule at any 
time after the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Robert Redmond, Office of Enforcement 
and Program Delivery, Federal Motor Carrier Safety Administration, 1200 
New Jersey Avenue SE., Washington, DC 20590-0001, by telephone at (202) 
366-5014 or via email at [email protected]. Office hours are from 
9 a.m. to 5 p.m. ET, Monday through Friday, except Federal holidays. If 
you have questions on viewing or submitting material to the docket, 
contact Renee V. Wright, Program Manager, Docket Operations, telephone 
(202) 366-9826.

SUPPLEMENTARY INFORMATION: 

Table of Contents for Preamble

I. Public Participation and Request for Comments
    A. Submitting Comments
    B. Viewing Comments and Documents
    C. Privacy Act
II. Legal Basis for the Rulemaking
III. Background
IV. Discussion of Proposed Rule
V. Regulatory Analyses

I. Public Participation and Request for Comments

    FMCSA encourages you to participate in this rulemaking by 
submitting comments and related materials. All comments received will 
be posted without change to http://www.regulations.gov and will include 
any personal information you provide.

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
rulemaking (FMCSA-2012-0172), 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 comment 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 and 
click on the ``Submit a Comment'' box, which will then become 
highlighted in blue. In the ``Document Type'' drop-down menu, select 
``Proposed Rules,'' insert ``FMCSA-2012-0172'' in the ``Keyword'' box, 
and click ``Search.'' When the new screen appears, click on ``Submit a 
Comment'' in the ``Actions'' column. If you submit your comment by mail 
or hand delivery, submit it in an unbound format, no larger than 8\1/2\ 
by 11 inches, suitable for copying and electronic filing. If you submit 
your comment by mail and would like to know that it 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 change the proposed rule based on your comment.

B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble, 
available in the docket, go to http://www.regulations.gov and click on 
the ``Read Comments'' box in the upper right-hand side of the screen. 
Then in the ``Keyword'' box, insert ``FMCSA-2012-0172'' and click 
``Search.'' Next, click the ``Open Docket Folder'' in the ``Actions'' 
column. Finally, in the ``Title'' column, click on the document you 
would like to review. If you do not have access to the Internet, you 
may view the docket online by visiting the Docket Management Facility 
in Room W12-140 on the ground floor of the Department of Transportation 
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590, 
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal 
holidays.

C. Privacy Act

    Anyone is able to search the electronic form of all comments 
received into any of our dockets by the name of the individual 
submitting the comment (or signing the comment, if submitted on behalf 
of an association, business, labor union, etc.). You may review the 
Department of Transportation's (DOT) Privacy Act Statement for the 
Federal Docket Management System published in the Federal Register on 
January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.

II. Legal Basis for the Rulemaking

    Congress enacted the Commercial Motor Vehicle Safety Act of 1986 
(CMVSA) [Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 49 U.S.C. 
chapter 313] to improve highway safety by ensuring that drivers of 
large trucks and buses are qualified to operate those vehicles and to 
remove unsafe and unqualified drivers from the highways. To achieve 
these goals, the CMVSA established the Commercial Driver's License 
(CDL) Program and required States to ensure that drivers convicted of 
certain serious traffic violations are prohibited from operating 
commercial motor vehicles (CMVs). Although State participation in the 
CDL program is voluntary, the CMVSA created incentives by conditioning 
certain Federal highway and grant funding on States maintaining a 
certified CDL program (CMVSA Sec. Sec.  12010, 12011, codified at 49 
U.S.C. 31313, 31314). One of the CMVSA's CDL program requirements was 
that States report CDL holders' out-of-State traffic convictions to 
their licensing States within 10 days of the conviction (CMVSA Sec.  
12009(a)(9)). The CMVSA also established a requirement for CDL holders 
to report these same out-of-State traffic convictions to their 
licensing States within 30 days of the conviction (CMVSA Sec.  
12003(a)(1), codified at 49 U.S.C. 31303(a)). Congress authorized the 
Secretary to issue regulations to implement these provisions (CMVSA 
Sec.  12018(a), codified at 49 U.S.C. 31317). The Federal Highway 
Administration (FHWA), FMCSA's predecessor, subsequently issued 
regulations, including 49 CFR 383.31(a), which implemented the 
requirement that CDL holders report out-of-State traffic convictions to 
their licensing States (52 FR 20574, June 1, 1987). FHWA did not issue 
regulations implementing the States' reporting requirement at that 
time.
    On July 5, 1994, Congress recodified title 49 of the United States 
Code (U.S.C.) [Pub. L. 103-272, 108 Stat. 475 (the 1994 Recodification 
Act)]. Among other things, the 1994 Recodification Act corrected an 
ambiguity in CMVSA Sec.  12009(a)(9). The wording of the statute did 
not make clear who had the obligation to report the CDL holders' out-
of-State violations: The State or the driver. The 1994 Recodification 
Act added language making it explicit that States must report an out-
of-State CDL holder's traffic conviction to the licensing State within 
10 days of the

[[Page 46012]]

conviction (108 Stat. 1024, 49 U.S.C. 31311(a)(9)). However, Congress 
did not repeal the requirement that individual CDL holders report the 
same information within 30 days of conviction.
    The Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L. 
106-159, 113 Stat. 1748] amended numerous provisions of title 49 of the 
U.S.C., related to the licensing and sanctioning of CMV drivers 
required to hold a CDL and directed the Secretary to amend regulations 
to correct specific weaknesses in the CDL program. One such provision 
directed the Secretary to develop a uniform system for the State-to-
State electronic transmission of the out-of-State CDL holders' traffic 
conviction information. FMCSA subsequently issued regulations 
implementing MCSIA and other statutory requirements, including CMVSA 
Sec.  12009(a)(9). Those regulations included 49 CFR 384.209, which 
requires States to report out-of-State CDL holders' traffic convictions 
to their licensing States as a minimum requirement of maintaining a 
certified CDL program (67 FR 49742, July 31, 2002).
    The FMCSA Administrator has been delegated authority under 49 CFR 
1.73(e)(1) to carry out the CMVSA functions vested in the Secretary.

III. Background

    Presidential Executive Order (E.O.) 13563, issued January 18, 2011, 
``Improving Regulation and Regulatory Review'' (76 FR 3821, January 21, 
2011), prompted DOT to publish a notice in the Federal Register (76 FR 
8940, February 16, 2011). This notice requested comments on a plan for 
reviewing existing rules, as well as identification of existing rules 
that DOT should review because they may be outmoded, ineffective, 
insufficient, or excessively burdensome. DOT placed all retrospective 
regulatory review comments, including a transcript of a March 14, 2011, 
public meeting, in docket DOT-OST-2011-0025. DOT received comments from 
102 members of the public, with many providing multiple suggestions.
    In connection with this initiative, a commenter identified as 
appropriate for review the requirements of 49 CFR 383.31(a) and 
384.209, which provide for both individual CDL holders and States with 
certified CDL programs to report the same information about CDL 
holders' out-of-State convictions. FMCSA agreed with this suggestion. 
Although States are not required to participate in FMCSA's CDL 
certification program, all 50 States and the District of Columbia 
currently maintain certified programs, due in part to the financial 
incentives described above. In practice, this means that compliance 
with both Sec. Sec.  383.31(a) and 384.209 has resulted in a reporting 
redundancy.
    Both individual CDL holders and States have previously informed 
FMCSA that they believe this redundancy creates an unnecessary burden. 
Many States have reported to FMCSA that they do not have systems in 
place to process the information that comes from individuals and that 
they prefer to receive the information through official State-to-State 
communications, which are more efficient and secure. Currently, all 
States but one use the telecommunications network associated with the 
Commercial Driver's License Information System (CDLIS), a clearinghouse 
and repository administered by the American Association of Motor 
Vehicle Administrators (AAMVA), to transmit this information 
electronically. The remaining State transmits the information via mail. 
Therefore individual communications from CDL holders are redundant and 
inefficient.

IV. Discussion of Proposed Rule

    This rule proposes to reduce the burden on individuals and States 
by harmonizing the requirements of Sec. Sec.  383.31 and 384.209. FMCSA 
reads the statutory provisions authorizing these regulations, 49 U.S.C. 
31303(a) and 31311(a)(9), as two elements of the CDL program Congress 
originally established in CMVSA, as opposed to separate or independent 
requirements. Reading the statutory provisions together as a part of an 
integrated regulatory scheme, the Agency believes that Congress 
intended for States to obtain accurate and timely information about 
their CDL holders' out-of-State traffic convictions so States are able 
to impose the appropriate sanctions for disqualifying offenses. The 
Agency does not believe that redundant reporting adds any special value 
to the CDL regulatory scheme. Rather, FMCSA believes that Congress 
created the statutory redundancy because State participation in the CDL 
program is voluntary, and as a result, it saw the need to create a 
method of reporting in the event that a State does not maintain a 
certified CDL program. That said, there currently exists a reporting 
redundancy because all 51 eligible jurisdictions have certified CDL 
programs and therefore must report a CDL holder's out-of-State traffic 
convictions (49 CFR 384.209).
    To reduce this redundancy, FMCSA proposes to amend Sec.  383.31 to 
provide that if the State in which a CDL holder is convicted for a 
traffic control violation has an FMCSA-certified CDL program, the 
Agency will consider the CDL holder to be in compliance with Sec.  
383.31(a) because the State where the conviction occurred will report 
the violation to the CDL holder's State of licensure. FMCSA believes 
that this change would effectuate Congress's intent that States have 
the requisite information to remove unsafe and unqualified drivers from 
the highways, while minimizing inefficiencies and reducing an 
unnecessary administrative burden on both individual CDL holders and 
States.

V. Regulatory Analyses

E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies 
and Procedures as Supplemented by E.O. 13563)

    FMCSA has determined that this proposed rule is a not significant 
regulatory action within the meaning of Executive Order (E.O.) 12866, 
as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), or within 
the meaning of DOT regulatory policies and procedures because the 
proposed rule is not expected to generate substantial congressional or 
public interest. The estimated cost of the proposed rule is not 
expected to exceed the $143.1 million \1\ annual threshold for economic 
significance; therefore, any costs associated with the rule are 
expected to be minimal. The proposed rule would reduce a regulatory 
burden on current reporting requirements affecting individuals and 
States and thus should result in decreased economic burden. This rule 
would not require a change in the business practice of already 
compliant states currently using CDLIS, the clearinghouse and 
repository system. The Agency expects this rule to generate cost 
savings in the form of reduced paperwork burdens.
---------------------------------------------------------------------------

    \1\ This is the value equivalent of $100 million in CT 1995, 
adjusted for inflation to CY 2010 levels by the Consumer Price Index 
for All Urban consumers (CPI-U) as published by the Bureau of Labor 
Statistics. Office of the Secretary of Transportation Memo: 
Threshold of Significant Regulatory Actions Under the Unfunded 
Mandates Reform Act of 1995. July 5, 2011.
---------------------------------------------------------------------------

Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires Federal agencies to consider the effects of the regulatory 
action on small business and other small entities and to minimize any 
significant economic impact. The term ``small entities'' comprises 
small

[[Page 46013]]

businesses and not-for-profit organizations that are independently 
owned and operated and are not dominant in their fields, and 
governmental jurisdictions with populations of less than 50,000 \2\.
---------------------------------------------------------------------------

    \2\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.) see 
National Archives at http://www.archives.gov/federal-register/laws/regulaotry-flexibility/601.html.
---------------------------------------------------------------------------

    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 businesses. Under the Regulatory 
Flexibility Act, as amended by the Small Business Regulatory 
Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the 
proposed rule is not expected to have a significant economic impact on 
a substantial number of small entities. Consequently, I certify the 
proposed action would not have a significant economic impact on a 
substantial number of small entities.

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 FMCSA point of 
contact, Robert Redmond, listed in the FOR FURTHER INFORMATION CONTACT 
section of this proposed rule.
    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman and the Regional Small 
Business Regulatory Fairness Boards. The Ombudsman evaluates these 
actions annually and rates each agency's responsiveness to small 
business. If you wish to comment on actions by employees of FMCSA, call 
1-888-REG-FAIR (1-888-734-3247). DOT has a policy regarding the rights 
of small entities to regulatory enforcement fairness and an explicit 
policy against retaliation for exercising these rights.

Unfunded Mandates Reform Act

    This rulemaking would not impose an unfunded Federal mandate, as 
defined by the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1532 et 
seq.), that would result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector of $143.1 
million \3\ or more in any one year. Any agency circulating a rule 
likely to result in a Federal mandate requiring expenditures by a 
State, local, or Tribal government or by the private sector of $143.1 
million or more in any one year must prepare a written statement 
incorporating various assessments, estimates, and descriptions that are 
delineated in the Act.
---------------------------------------------------------------------------

    \3\ Ibid., V Regulatory Analyses--Executive Order (E.O.) 12866 
(Regulatory Planning and Review and DOT Regulatory Policies and 
Procedures as Supplemented by E.O. 13563.
---------------------------------------------------------------------------

E.O. 13132 (Federalism)

    A rule has implications for Federalism under Section 1(a) of 
Executive Order 13132 if it has ``substantial direct effects on the 
States, on the relationship between the national government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.'' FMCSA has determined that this 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.

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 would 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.

Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.), 
Federal agencies must obtain approval from the Office of Management and 
Budget (OMB) for each collection of information they conduct, sponsor, 
or require through regulations. FMCSA has determined that there is no 
new information collection requirement associated with this proposed 
rule. FMCSA expects that this rule would result in a paperwork burden 
reduction that cannot be quantified because States do not have 
mechanisms for tracking or processing driver-reported out-of-State 
traffic convictions. States rely on State-to-State reporting to gather 
this information, which is more accurate and secure than driver self-
reporting.

National Environmental Policy Act and Clean Air Act

    FMCSA analyzed this notice of proposed rulemaking for the purpose 
of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et 
seq.) and determined this action is categorically excluded from further 
analysis and documentation in an environmental assessment or 
environmental impact statement under FMCSA Order 5610.1(69 FR 9680, 
March 1, 2004), Appendix 2, paragraph (s)(2). The Categorical Exclusion 
(CE) in paragraph (s)(2) covers requirements for drivers to notify 
their States of licensure of certain convictions. The proposal in this 
rule is covered by this CE and does not have any effect on the quality 
of the environment. The Categorical Exclusion determination is 
available for inspection or copying in the Regulations.gov Web site 
listed under ADDRESSES.
    FMCSA also analyzed this rule under the Clean Air Act, as amended 
(CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing 
regulations promulgated by the Environmental Protection Agency. 
Approval of this action is exempt from the CAA's general conformity 
requirement since it does not affect direct or indirect emissions of 
criteria pollutants.

E.O. 13211 (Energy Supply, Distribution, or Use)

    FMCSA has analyzed this proposed rule under E.O. 13211, Actions 
Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. FMCSA has determined that it is not a 
``significant energy action'' under that order because it is not a 
``significant regulatory action'' under E.O. 12866 and is not likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy. The Administrator of the Office of Information and 
Regulatory Affairs has not designated it as a significant energy 
action. Therefore, it does not require a Statement of Energy Effects 
under E.O. 13211.

E.O. 13045 (Protection of Children)

    E.O. 13045, Protection of Children from Environmental Health Risks 
and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies 
issuing ``economically significant'' rules, if the regulation also 
concerns an environmental health or safety risk that an agency has 
reason to believe may disproportionately affect children, to include an 
evaluation of the regulation's environmental health and safety effects 
on children. As discussed previously, this proposed rule is not 
economically

[[Page 46014]]

significant. Therefore, no analysis of the impacts on children is 
required. In any event, FMCSA does not anticipate that this regulatory 
action could in any respect present an environmental or safety risk 
that could disproportionately affect children.

E.O. 12988 (Civil Justice Reform)

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

E.O. 12630 (Taking of Private Property)

    This proposed rule would not effect a taking of private property or 
otherwise have taking implications under E.O. 12630, Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights.

National Technology Transfer and Advancement Act (Technical Standards)

    The National Technology Transfer and Advancement Act (15 U.S.C. 272 
note) requires Federal agencies proposing to adopt Government technical 
standards to consider whether voluntary consensus standards are 
available. If the Agency chooses to adopt its own standards in place of 
existing voluntary consensus standards, it must explain its decision in 
a separate statement to OMB. This rule does not propose to adopt any 
technical standards.

Privacy Impact Assessment

    FMCSA conducted a privacy impact assessment of this rule as 
required by section 522(a)(5) of the FY 2005 Omnibus Appropriations 
Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a 
note to 5 U.S.C. 552a]. The assessment considers any impacts of the 
rule on the privacy of information in an identifiable form and related 
matters. FMCSA has determined this rule would have no privacy impacts.

List of Subjects in 49 CFR Part 383

    Administrative practice and procedure, Alcohol abuse, Drug abuse, 
Highway safety, Incorporation by reference, Motor carriers.

    In consideration of the foregoing, FMCSA proposes to amend 49 CFR 
part 383 as follows:

PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND 
PENALTIES

    1. The authority citation for part 383 continues to read as 
follows:

    Authority:  49 U.S.C. 521, 31136, 31301 et seq., and 31502; 
secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767; sec. 
4140 of Pub. L. 109-59, 119 Stat. 1144, 1726; and 49 CFR 1.73.

    2. Amend Sec.  383.31(a) by revising paragraph (a) and adding new 
paragraph (d), to read as follows:


Sec.  383.31  Notification of convictions for driver violations.

    (a) Except as provided in paragraph (d) of this section, each 
person who operates a commercial motor vehicle, who has a commercial 
driver's license issued by a State or jurisdiction, and who is 
convicted of violating, in any type of motor vehicle, a State or local 
law relating to motor vehicle traffic control (other than a parking 
violation) in a State or jurisdiction other than the one which issued 
his/her license, shall notify an official designated by the State or 
jurisdiction which issued such license, of such conviction. The 
notification must be made within 30 days after the date that the person 
has been convicted.
* * * * *
    (d) A person is considered to be in compliance with the 
requirements of paragraph (a) of this section if the State or 
jurisdiction that issued the citation resulting in a conviction is in 
substantial compliance with 49 CFR part 384, subpart B, and has not 
been de-certified in accordance with 49 CFR 384.405.

    Issued on: July 27, 2012.
William Bronrott,
Deputy Administrator.
[FR Doc. 2012-18902 Filed 8-1-12; 8:45 am]
BILLING CODE 4910-EX-P