[Federal Register Volume 87, Number 46 (Wednesday, March 9, 2022)]
[Rules and Regulations]
[Pages 13192-13209]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-04930]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 385, 390, and 391
[Docket No. FMCSA-2018-0224]
RIN 2126-AC15
Record of Violations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule.
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SUMMARY: FMCSA amends its regulations 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 rule 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 convictions for a driver who is
licensed by a foreign authority rather than by a State, the Agency
amends the rule 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.
DATES: This final rule is effective May 9, 2022.
Comments on the information collections in this final rule must be
submitted to the Office of Information and Regulatory Affairs (OIRA) at
the Office of Management and Budget (OMB) by April 8, 2022.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than April 8, 2022.
ADDRESSES: Comments and recommendations for the proposed information
collections should be sent within 30 days of publication of this final
rule to https://www.reginfo.gov/public/do/PRAMain. Find the particular
information collection by selecting ``Currently under Review--Open for
Public Comments'' or by using the search function.
FOR FURTHER INFORMATION CONTACT: Mr. Richard Clemente, Office of Driver
and Carrier Operations, MCPSD, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001;
(202) 366-4325; [email protected].
SUPPLEMENTARY INFORMATION: This final rule is organized as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
A. Purpose and Summary of the Final Rule
B. Costs and Benefits
III. Abbreviations
IV. Legal Basis for the Rulemaking
V. Discussion of Proposed Rule
VI. Discussion of Comments and Responses
A. Comment Overview
B. Safety Concerns Relating to the Elimination of Sec. 391.27
C. Availability, Timeliness, and Accuracy of Driving Histories
D. Reporting of All Traffic Citations and Violations
E. Traffic Conviction Notification Requirement for Non-CDL
Drivers
F. Obtaining MVRs From Foreign Driver's Licensing Authorities
G. Impact on Driver Qualification Files
H. Changes to Sec. 391.23(b)
I. Employer Notification Services (ENS)
J. Reporting of Traffic Violations Generally
K. Outside the Scope of the Rulemaking
VII. Guidance
A. Section 391.23 Investigation and Inquiries
B. Section 391.25 Annual Inquiry and Review of Driving Record
C. Section 391.27 Record of Violations
VIII. Changes From the NPRM
IX. International Impacts
[[Page 13193]]
X. Section-by-Section Analysis
A. Part 385
B. Part 390
C. Part 391
XI. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving Regulation and Regulatory Review),
and DOT Regulatory Policies and Procedures
B. Congressional Review Act
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act (Collection of Information)
G. E.O. 13132 (Federalism)
H. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of 1969
I. Availability of Rulemaking Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2018-0224/document and
choose the document to review. To view comments, click this final rule,
then click ``Browse Comments.'' 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.
II. Executive Summary
A. Purpose and Summary of the Final Rule
In this final rule, the Agency rescinds 49 CFR 391.27 (Record of
violations) and removes 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, for which the
driver has been convicted or has forfeited bond or collateral during
the preceding 12 months. When a driver does not have any such
violations to report, the driver is required to furnish a certification
to that effect. The motor carrier must retain the list of violations or
certification of no violations in the driver's qualification file.
FMCSA retains the requirement in Sec. 391.25(a) (Annual inquiry
and review of driving record) for an annual MVR inquiry. Section 391.25
requires each motor carrier to make an annual inquiry to obtain the MVR
for each driver it employs from every State \1\ in which the driver
holds or has held a CMV operator's license or permit in the past year.
The motor carrier must review the MVR obtained and maintain a copy of
it in the driver's qualification file. Section 391.25 applies to all
motor carriers, domestic and foreign, but is limited to inquiries for
drivers licensed by a State.
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\1\ 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 convictions for a
driver who is licensed by a foreign authority rather than by a State,
FMCSA amends 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 requires motor
carriers to request MVRs from Canadian and Mexican driver's licensing
authorities.
To maintain consistency within part 391 with respect to requests
for MVRs, FMCSA makes conforming changes to the hiring process. The
Agency amends Sec. 391.23 (Investigation and inquiries) to require a
motor carrier to make an inquiry to each driver's licensing authority
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. FMCSA changes 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 can make the required inquiries under Sec.
391.23. In addition to the proposed changes, this rule adopts
additional minor clarifications and conforming changes, which are
outlined in the section discussing changes from the proposed rule and
the Section-by-Section Analysis below.
B. Costs and Benefits
The elimination of Sec. 391.27 results in cost savings to drivers,
as they will no longer spend time completing a list of convictions for
traffic violations or certificate of no convictions. It also results in
cost savings to motor carriers, as they no longer have to file the
lists or certificates in driver qualification files. The Agency
estimates that rescinding Sec. 391.27 results in cost savings of $24.9
million over 10 years, at a 7 percent discount rate. The annualized
cost savings are estimated to be $3.5 million.
Changes made in the FMCSRs to require inquiries to Canadian and
Mexican driver's licensing authorities 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 6.8
million CMV drivers reported in FMCSA's 2020 Pocket Guide to Large
Truck and Bus Statistics,\2\ the Agency estimates that at most only 2.3
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 2.8 percent represents 149,119
drivers reported as being employed by Canadian and Mexican motor
carriers.\3\
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\2\ Available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-10/FMCSA%20Pocket%20Guide%202020-v8-FINAL-10-29-2020.pdf
(last accessed Oct. 22, 2021).
\3\ FMCSA's 2020 Pocket Guide to Large Truck and Bus Statistics
shows that 350 non-North American motor carriers are registered to
operate in the United States (see Table 1-10). They report employing
a total of 1,255 drivers, which is a de minimis number when compared
to the 6.8 million CMV drivers operating in the United States. It is
very rare for domestic motor carriers to employ drivers licensed by
a non-North American authority. Therefore, the focus of FMCSA's
analysis is on drivers licensed by Canadian and Mexican driver's
licensing authorities.
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These changes do 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 from
either a foreign or a domestic authority is generally the same.\4\
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.
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\4\ Motor carriers typically must pay driver's licensing
authorities to request MVRs. The current OMB-approved information
collection 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 fee
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 (there is no fee to request MVRs in
Mexico). 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
[[Page 13194]]
their applicable safety codes to request MVRs for their drivers from
their country's licensing authorities.\5\ Accordingly, FMCSA has
determined that the changes to Sec. Sec. 391.23 and 391.25 to require
inquiries to Canadian and Mexican driver's licensing authorities to
obtain MVRs imposes no new record keeping or reporting costs or
burdens. Though Canadian and Mexican motor carriers are not required to
change their current business practices and do not have any new costs
or burdens imposed as a result of this rule, FMCSA continues to include
the costs and burdens for requesting MVRs in the current information
collection to treat all motor carriers consistently and for
administrative convenience.
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\5\ See Section XI.A., below, and footnote 15 for additional
information.
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FMCSA does not expect this rule will negatively affect CMV safety.
Motor carriers are still 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 still
have a reliable way to learn of any convictions for traffic violations
incurred by their driver employees.
III. Abbreviations
AAMVA American Association of Motor Vehicle Administrators
ATA American Trucking Associations, Inc.
BLS Bureau of Labor Statistics
CDLIS Commercial Driver's License Information System
CDL Commercial Driver's License
CMV Commercial Motor Vehicle
DOL Department of Labor
DOT Department of Transportation
ECEC Employer Costs for Employee Compensation
ENS Employer Notification Services
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FMCSRs Federal Motor Carrier Safety Regulations
FR Federal Register
ICR Information Collection Request
LTL Less-than-Truckload
MCMIS Motor Carrier Management Information System
MVR Motor Vehicle Record
NAICS North American Industry Classification System
NCSC National Center for State Courts
NDAA National District Attorneys Association
NPRM Notice of Proposed Rulemaking
NSC Canadian National Safety Code
NTSB National Transportation Safety Board
OES Occupational Employment Statistics
OIG Office of Inspector General
OIRA Office of Information and Regulatory Affairs
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association
OTR Over-the-Road
PSP Pre-Employment Screening Program
RFA Regulatory Flexibility Act
RMV Registry of Motor Vehicles
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
SDLA State Driver's Licensing Agency
Secretary Secretary of Transportation
SBA Small Business Administration
SOC Standard Occupation Code
Sec. Section Symbol
TCA Truckload Carriers Association
TL Truckload
U.S.C. United States Code
IV. Legal Basis for the Rulemaking
This final rule eliminates a duplicative paperwork requirement and
clarifies the licensing authority from which motor carriers obtain
MVRs. The rule is based primarily on the authorities of 49 U.S.C.
31502(b) and 31136(a).
Section 31502(b) authorizes the Secretary of Transportation
(Secretary) to establish requirements for the qualifications of
employees and the safety of operation of a motor carrier. This rule
addresses the qualifications of motor carrier employees, consistent
with the safe operation of CMVs.
Section 31136 provides concurrent authority to regulate drivers,
motor carriers, and vehicle equipment. Section 31136(a)(1) requires
that the Secretary issue regulations on CMV safety, including
regulations to ensure that CMVs are operated safely. 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 does
not impose any responsibilities on CMV drivers that would impair their
ability to operate the vehicles safely. This rule does not address
medical standards for drivers or possible physical effects caused by
driving CMVs (section 31136(a)(3) and (a)(4), respectively). There is
no basis to anticipate that drivers would be coerced (section
31136(a)(5)) because of this rule. 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 rule
rescinds Sec. 391.27 using that authority.
The FMCSA Administrator 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
the ``costs and benefits'' (49 U.S.C. 31136(c)(2)(A) and 31502(d)).
Those factors are addressed in the Regulatory Analyses of this rule.
V. Discussion of Proposed Rule
On December 14, 2020, FMCSA published a notice of proposed
rulemaking (NPRM) (85 FR 80745). The NPRM proposed to eliminate the
duplicative requirement in Sec. 391.27 that drivers operating a CMV in
interstate commerce prepare and submit a list of their convictions for
traffic violations to their employers annually. FMCSA proposed to
retain the requirement in Sec. 391.25(a) for an annual MVR inquiry,
but to change it to require an annual inquiry to obtain the MVR for
each driver it employs from every driver's licensing authority, instead
of State, in which the driver holds or has held a CMV operator's
license or permit in the past year. FMCSA proposed to conform
Sec. Sec. 391.21, 391.23, and 391.51 (General requirements for driver
qualification files) by changing references to a ``State'' to a
``driver's licensing authority.'' FMCSA also proposed changes to remove
references to Sec. 391.27 in Appendix B to Part 385--Explanation of
Safety Rating Process and in Sec. Sec. 391.11 (General qualifications
of drivers), 391.51, and 391.63 (Multiple-employer drivers). A detailed
discussion of the regulatory background of Sec. 391.27, the rationale
for eliminating it, and what was proposed is set forth in the NPRM (85
FR 80748-50).
VI. Discussion of Comments and Responses
A. Comment Overview
FMCSA requested comments on the NPRM for 60 days, from December 14,
2020 through February 12, 2021, and received 97 submissions. Of those
submissions, nine commented on matters outside of the scope of the
rulemaking. Two submissions were withdrawn. Accordingly, 86 responsive
submissions were received.
The 86 responsive submissions were primarily from individuals. Most
of the individuals were drivers or associated with motor carriers.
Several commenters identified themselves as compliance or safety
professionals for motor carriers. Commenters also represented various
trade associations and organizations. Entities that submitted comments
and supported the proposed rule included the American Bus Association,
the American Trucking Associations, Inc. (ATA), the Owner-Operator
Independent Drivers Association
[[Page 13195]]
(OOIDA), the Tennessee Trucking Association, the Truckload Carriers
Association (TCA), the United Motorcoach Association, Driver iQ, and
DriverReach. Of the 86 responsive submissions, 71 commenters supported
the proposed rule, while 15 commenters opposed it. No comments opposing
the rule were received from trade associations, labor organizations, or
safety advocate organizations.
Commenters supporting the rulemaking provided multiple reasons for
their position. Many commenters expressed that the annual MVR check
required by Sec. 391.25 is a more accurate depiction of a driver's
traffic conviction history than information received from the driver
and that eliminating the requirement would not have an adverse effect
on safety. Other common reasons for supporting the elimination of the
requirement for drivers to provide a list of their traffic convictions
included that it is redundant, time consuming, does nothing to improve
safety, is unreliable, takes time away from measures that could improve
safety, is merely a recordkeeping ``paper chase,'' and is outdated.
Several drivers commented that it can be very difficult to complete the
paperwork when they are on the road. One driver stated the requirement
is a way for motor carriers to trap drivers in a lie when they have
innocently forgotten a conviction. An owner-operator commented that it
is a nuisance for such operators to take the time to tell themselves
they have not received any convictions. Many motor carriers stated it
is time consuming, costly, and burdensome to distribute the forms to
drivers, track down drivers who do not return them, and file the forms.
One motor carrier commented it takes the better part of a month to
receive information from drivers and another estimated the annual
administrative burden to be in excess of 100 hours. This commenter
added these are hours that could otherwise be spent on improving driver
training and communication and other activities more directly targeted
at creating better and safer drivers. Several other motor carriers
commented that they do not rely on the information provided to them by
the drivers.
OOIDA commented that duplicative requirements, such as those in
Sec. 391.27, are often more compliance obligations than safety
measures, which can disproportionally harm small-business truckers who
have to cut through the red tape themselves. The Tennessee Trucking
Association commented that the regulation is redundant, and it is hard
to get the form completed for over-the-road drivers. It added that most
of the time the motor carrier pulls the MVR before the form is
completed, so the carrier already knows what is on a driver's record.
The most common reason for opposing the rule related to safety
concerns. Those comments and others opposing the rule are discussed
below.
B. Safety Concerns Relating to the Elimination of Sec. 391.27
Of the 15 individuals who opposed the rule, 8 specifically cited
safety concerns that motor carriers would have no way to know about
drivers' traffic convictions without Sec. 391.27. For example, one
commenter asked how employers can know what kind of driver they would
be hiring without a record of infractions against that driver. Another
commenter stated there are going to be more accidents if drivers know
they do not have to report them. A different commenter stated, ``This
is what keeps the trucking industry safe. When you drop the requirement
for this, how are the employers going to know who is a safe driver
versus one who is reckless?'' One commenter noted companies need to be
aware of changes in the driving habits of drivers receiving violations
to prevent accidents. Another commenter stated that eliminating Sec.
391.27 does away with one more control the motor carrier has to monitor
the driver's safety performance on the road. A different commenter
stated that reporting traffic and safety violations to employers helps
a company or driver try to operate more safely.
Another commenter who opposed the rule stated Sec. 391.27 benefits
motor carriers because the requirement allows them to review the
driving record in both CMVs and personal vehicles. The commenter noted
that convictions for driving while intoxicated in a personal vehicle
may not be discovered if not for running an MVR. The commenter was in
favor of the annual MVR review and indicated some motor carriers and
insurers would not obtain MVRs in the absence of the rule. A different
commenter stated that too many motor carriers rely on their insurance
companies to review the MVR and they often miss relevant information.
Another commenter did not want someone with a horrible driving record
to be behind the wheel of a CMV.
FMCSA response: After consideration of the comments submitted to
the docket, the Agency continues to find that removing Sec. 391.27
will not adversely affect CMV safety. The majority of commenters who
opposed eliminating Sec. 391.27 misunderstood the proposal. Many of
the commenters understandably confused the requirements of Sec. Sec.
391.27 and 391.25 because of their duplicative nature. FMCSA emphasizes
that the final rule does not remove the annual requirement for a motor
carrier to obtain and review an MVR as required by Sec. 391.25. Thus,
employers still have a way to know the driving records of their drivers
and a way to distinguish safe from unsafe drivers. Furthermore, the
Agency retains Sec. Sec. 391.21 and 391.23, which require motor
carriers to obtain and review MVRs and safety performance history when
hiring a driver, as well as the general qualification requirements for
drivers in Sec. 391.11.
The elimination of Sec. 391.27 does not preclude employers from
requiring their drivers to provide a list of their traffic convictions
as a condition of employment. Rather, the elimination of Sec. 391.27
provides employers with flexibility to obtain traffic conviction
information in a manner that is most efficient and effective in their
situation. Eliminating Sec. 391.27 allows employers to redirect their
resources in ways that may have greater safety benefits; this is
particularly the case for employers that continuously monitor the
driving records of their employees.
C. Availability, Timeliness, and Accuracy of Driving Histories
Two commenters noted State traffic conviction reporting has
improved significantly. The United Motorcoach Association commented
that as recently as a decade ago States were considerably less
dependable reporting violations to drivers' state of licensure;
however, ``States have improved their reporting significantly.'' An
individual commenter stated that the chances of error in the driving
history is basically non-existent with the increase in computerized
records since Sec. 391.27 was enacted.
In contrast, four commenters raised concerns regarding the
availability, timeliness, and accuracy of driver license status and
driving histories. Three commenters stated there are issues with States
either being slow to report traffic convictions or not reporting them
at all. Although ATA recommended eliminating Sec. 391.27 and
``strongly'' supported FMCSA's proposal, ATA noted concerns about
FMCSA's efforts to ensure the information provided to motor carriers to
make critical safety decisions is accurate, timely, and complete. ATA
commented, ``While state MVRs have significantly improved over the last
20 years, there are still significant deficiencies, of varying degrees,
across the states.''
[[Page 13196]]
ATA cited a recent National Transportation Safety Board (NTSB)
report that highlighted deficiencies with the Massachusetts Registry of
Motor Vehicles' (RMV) out-of-state driver's license notifications
process. According to ATA's summary of the report, the deficiencies led
to the RMV's failure to revoke the commercial driver's license (CDL) of
a driver involved in a crash that killed seven people. ATA stated the
NTSB ``found RMV failed to revoke thousands of non-CDL driver's
licenses. While the report singled out [RMV], NTSB concluded that the
problems observed in Massachusetts might exist nationwide.''
Two additional commenters noted it can take months for a citation
to be fully adjudicated and become a conviction listed on the driver's
MVR. One of the commenters expressed concern that these delays put the
motor carrier at increased risk, should the driver be involved in an
accident during the time the authority takes to rule on the citation.
FMCSA response: Nothing in the comments changes FMCSA's
determinations that the lists provided by drivers are less reliable
than MVRs issued by driver's licensing authorities and the lists have
minimal safety value. There have been significant improvements in data
collection and transmission that support this rulemaking since Sec.
391.27 was adopted, and there are more improvements to come.
Additionally, the Agency notes that Sec. 391.27 requires drivers to
report convictions, not citations, so the impact of delays adjudicating
citations exists even in the presence of Sec. 391.27.
In connection with the June 2019 crash that was the subject of the
NTSB report referenced above, the NTSB found that the Massachusetts RMV
``was not systematically processing paper notifications it received
from other States.'' \6\ Because of the crash, FMCSA focused its annual
program reviews to determine whether other States had substantial
numbers of unprocessed paper notifications. FMCSA notes most
unprocessed paper notifications found at the Massachusetts RMV were for
non-CMV drivers, who do not fall within FMCSA's regulatory authority.
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\6\ DOT, Office of Inspector General, FMCSA Has Gaps and
Challenges in Its Oversight of CDL Disqualification Regulations,
July 14, 2021, Report No. ST2021030, page 1. Available at https://www.oig.dot.gov/library-item/38455 (last accessed Sept. 13, 2021).
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The use of paper notifications and the challenges of processing
them were among the principal issues discovered at the Massachusetts
RMV. FMCSA addressed the issues in large part through the Commercial
Driver's License Standards, Requirements and Penalties; Exclusively
Electronic Exchange of Driver History Record Information final rule
published on July 23, 2021 (86 FR 38937). That rule requires SDLAs to
implement the exclusive electronic exchange of driver history record
information, which includes convictions and withdrawals, for CDL
holders. States must achieve substantial compliance with this
requirement as soon as practicable, but not later than August 22, 2024.
All States currently have the technical capability to transmit driver
history record information electronically. In addition, in fiscal years
2019, 2020, and 2021, FMCSA awarded grant funding to the American
Association of Motor Vehicle Administrators (AAMVA) to perform a
Commercial Driver's License Information System (CDLIS) impact analysis
of eliminating the paper exchange of convictions and withdrawals
between jurisdictions for the purposes of reporting out-of-state
convictions and withdrawals. The purpose of the grants was to analyze
the causes, proposed solutions, implementation impacts, and system
requirements for ensuring that States transmit out-of-state convictions
and withdrawals exclusively through an electronic means.
On July 14, 2021, the DOT Office of Inspector General (OIG) issued
its report for a self-initiated audit titled ``FMCSA Has Gaps and
Challenges in Its Oversight of CDL Disqualification Regulations.'' OIG
made seven recommendations to strengthen FMCSA's oversight of States'
actions to comply with Federal CDL disqualification requirements.
Completion of the OIG recommendations will strengthen FMCSA's annual
program reviews and enhance FMCSA's efforts to keep unsafe CDL drivers
off the road. FMCSA is working diligently to complete the OIG
recommendations and collaborating with States and AAMVA as
appropriate.\7\
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\7\ FMCSA plans to complete three of the OIG recommendations by
March 31, 2022 and the remaining recommendations by December 31,
2023.
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Finally, FMCSA continues to provide outreach to courts, which has
led to advancements in transmission of convictions from courts to
SDLAs. FMCSA leverages Commercial Driver's License Program
Implementation grant funds to promote better understanding among
judges, prosecutors, and court staff regarding CDL/CMV convictions. For
example, the National Center for State Courts (NCSC) created an online
Commercial Driving Resource Center for courts, which focuses on
research, technical assistance, outreach and awareness, and other
resources. One of NCSC's research projects was to review commercial
driver cases to learn how they are processed by courts and how courts
communicate information to the SDLAs. From this research, the NCSC has
developed best practices and identified current challenges for
reporting convictions to States. In addition, the National District
Attorneys Association (NDAA), under an FMCSA grant, developed a
Commercial Driver's License Resource Portal. Several of the resources
are centered around the prohibition against ``masking'' convictions.\8\
NDAA has developed training, a reference guide, and articles on masking
convictions. FMCSA continues to provide grant funding and to engage in
outreach in furtherance of enhanced reporting and transmission of
convictions from courts to SDLAs.
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\8\ ``Masking'' occurs when a court allows the conviction of a
CDL holder for a traffic violation to be deferred, dismissed, or go
unreported (see 49 CFR 384.225).
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D. Reporting of All Traffic Citations and Violations
Two commenters recommended that FMCSA change Sec. 391.27 to
require drivers to report not only traffic convictions to their
employers, but all citations and violations as well. One of the
commenters stated that revision would allow employers to track the
disposition of a citation to its conclusion. The commenter continued
that the fact a citation is dismissed, or the driver is found not
guilty in court, does not necessarily mean the driver did not engage in
unsafe or risky behavior behind the wheel. According to the commenter,
if an employer is aware of the behavior, the employer would have the
opportunity to take corrective action and possibly change the unsafe
behaviors before the driver is involved in an accident.
FMCSA response: FMCSA does not support this recommended change to
Sec. 391.27. Such a change would broaden the burden of the regulation
as opposed to reducing it, and its effectiveness would still be
dependent on the driver's memory and truthfulness. Moreover, the Agency
did not propose to expand the regulatory reporting requirements of
Sec. 391.27 in this rulemaking.
E. Traffic Conviction Notification Requirement for Non-CDL Drivers
One commenter opposed elimination of Sec. 391.27 because there is
no requirement for non-CDL drivers to inform their employers of traffic
[[Page 13197]]
convictions within 30 days, as is required by 49 U.S.C. 31303(a) and
Sec. 383.31 for CDL drivers. The commenter noted that drivers
operating vehicles that do not require a CDL do not always tell
employers about receiving a citation, and only a copy of the citation
will tell the employer what the driver was driving. The commenter
continued that at least once a year these non-CDL drivers must answer
that question on a form required by FMCSA.
Although ATA supported the elimination of Sec. 391.27, the group
noted that some of its members maintain company policies that require
non-CDL drivers operating a CMV to report violations within a
predetermined amount of time and that some members raised concerns over
eliminating the regulatory requirement for notification. Therefore, ATA
suggested that FMCSA consider whether an additional rulemaking to
establish a traffic conviction notification requirement for non-CDL
drivers like the reporting requirement for CDL drivers in Sec. 383.31
would be warranted.
FMCSA response: The lack of a reporting requirement for non-CDL
drivers that parallels the requirement for CDL drivers to inform their
employers of traffic convictions within 30 days is not a persuasive
reason to retain Sec. 391.27. With respect to adding a reporting
requirement for non-CDL holders that parallels Sec. 383.31, ATA
correctly states additional rulemaking would be necessary to propose
such a change. FMCSA continues to find the annual MVR check required by
Sec. 391.25 is a more accurate depiction of a driver's traffic
conviction history than information from the driver. Accordingly, FMCSA
currently is not considering a future rulemaking on this topic.
However, as stated above, the elimination of Sec. 391.27 does not
preclude employers from requiring their drivers to provide a list of
their traffic convictions as a condition of employment.
F. Obtaining MVRs From Foreign Driver's Licensing Authorities
Four comments considered the change to require motor carriers to
request MVRs from foreign driver's licensing authorities. Two industry
vendors, DriverReach and Driver iQ, commented that the change is
logical and appropriate because affected motor carriers already obtain
these records for safety and driver screening purposes, so the change
should not add a new burden or expense. ATA stated that it supports the
revision to ensure that the requirement extends to all jurisdictions.
TCA noted a concern that stakeholders may not know where or how to
request MVRs from Mexico or Canada. TCA requested that FMCSA implement
an educational campaign prior to finalizing this rule to tell motor
carriers how to request an MVR for international drivers. Some of ATA's
members raised concerns about obtaining foreign MVRs from outside North
America. ATA stated, however, that the ``good faith effort''
requirement provides motor carriers with sufficient flexibility to
address situations where an MVR might be difficult or impossible to
obtain.
Driver iQ commented that it often can take 90 to 120 days to obtain
MVRs from foreign driver's licensing authorities and requested that
FMCSA consider a lengthy effective date for any final rule. It
commented further that FMCSA should consider language requiring a motor
carrier to maintain documentation of each report request. In the event
no report is received, the document would be used by a motor carrier to
demonstrate a good faith effort to obtain it. Driver iQ also requested
that the regulation include language requiring the foreign authority to
provide access to the reports by an appointed agent of the carrier.
FMCSA response: FMCSA adopts the change to require motor carriers
to request an MVR from foreign driver's licensing authorities as
proposed. Because motor carriers already appear to be requesting MVRs,
a longer effective date is not necessary.
In practice, this change will have minimal impact on domestic motor
carriers and, therefore, educational outreach to them is not necessary.
However, FMCSA will re-evaluate the need for public outreach if
questions arise during implementation. Only a small proportion of CMV
drivers operating in the United States are licensed by a foreign
authority rather than by a State. Most of these drivers are employed by
Canadian and Mexican motor carriers. As noted above, a de minimis
number of CMV drivers who are licensed by a non-North American
authority operate in the United States, and it is very rare for
domestic motor carriers to employ such drivers. Accordingly, the number
of drivers for whom domestic motor carriers will be required to obtain
MVRs from foreign driver's licensing authorities is small, and it will
be a very rare occurrence to request an MVR from a non-North American
authority. In such situations, it is reasonable to conclude that the
driver will know how to obtain an MVR.
Many motor carriers most likely already maintain documentation of
each MVR they request (at least until an MVR is received); however,
FMCSA declines to make that a regulatory requirement, which would
increase the paperwork burden of the regulation. The Agency clarifies
that the requirement to make a ``good faith effort'' to obtain an MVR
applies to investigations made when hiring a driver under Sec.
391.23(b), not to the annual MVR review.
FMCSA does not have authority to require foreign authorities to
provide access to their records by an appointed agent of the motor
carrier. Requests for MVRs must be made in the form and manner each
authority prescribes. However, FMCSA notes that its guidance for Sec.
391.25 is revised to provide that motor carriers may use third parties
to ask driver's licensing authorities for copies of the driving record
of driver-applicants.
G. Impact on Driver Qualification Files
TCA encouraged FMCSA to conduct an educational campaign on how the
elimination of Sec. 391.27 would affect the driver qualification file
because the list currently required by Sec. 391.27 must be included in
the file. TCA stated carriers must be fully aware of and understand the
recordkeeping changes they will need to make. TCA offered to publicize
the new requirements to its members but urged FMCSA to go further and
hold public educational events to ensure all parties are made aware of
the impacts of this new rule on driver qualification files.
FMCSA response: Because this rule eliminates the requirements in
Sec. 391.27 for drivers to provide either a list of their traffic
convictions or a certificate that they do not have any traffic
convictions to report to their employers, there no longer is any
document for an employer to place in the driver qualification file.
This rule amends Sec. 391.51 by eliminating paragraph (b)(6), which
currently provides the driver qualification file must include the
documents required by Sec. 391.27. FMCSA does not plan to hold public
educational events in connection with the rule. However, FMCSA will re-
evaluate the need for public outreach if questions arise during
implementation.
H. Changes to Sec. 391.23(b)
TCA commented that it supports FMCSA's proposal to amend Sec.
391.23(b) to remove the requirement in the hiring process for a motor
carrier that receives no MVR from the driver's licensing authority to
certify that no record exists for the driver in that jurisdiction. TCA
noted that this requirement currently exists on top of the required
documentation of the good faith effort to
[[Page 13198]]
obtain the MVR. TCA stated this is another positive example of FMCSA
thoughtfully reviewing its regulations to remove inefficiencies and
applauded the Agency for recommending this change to alleviate the
recordkeeping burden on carriers.
FMCSA response: FMCSA adopts the change to Sec. 391.23(b) as
proposed in the NPRM. FMCSA agrees that documentation of a good faith
effort to obtain the MVR is sufficient evidence of compliance with the
regulatory requirement. Moreover, it is impossible for a motor carrier
to know what records are or are not maintained for a particular driver
by the licensing authority, because the motor carrier does not have
access to a licensing authority's records.
I. Employer Notification Services (ENS)
ATA, Driver iQ, and DriverReach suggested that FMCSA increase its
focus on greater adoption of ENS systems by States. State-based ENS
systems allow employers to be notified automatically when there is a
change to driver history record information. These commenters endorsed
the use of ENS as a means to improve safety but noted only 18 States
currently have systems in place that are consistent with FMCSA
standards and guidance.
FMCSA response: FMCSA agrees that continuous monitoring systems are
very effective tools to keep employers aware of changes to driver
history record information, which is likely to enhance safety. Indeed,
several NPRM commenters stated they use continuous monitoring systems
and find them very beneficial. As acknowledged by DriverReach and
Driver iQ, FMCSA did not make any proposals relating to ENS in the NPRM
and, therefore, is not addressing it in this final rule. However, the
rule eliminates duplicative effort and increases flexibility for
employers to use safety-enhancing tools, including continuous
monitoring systems.
FMCSA notes, as did some commenters, that the Agency currently has
a web-based Pre-Employment Screening Program (PSP). As stated by the
American Bus Association, PSP helps motor carriers make more informed
hiring decisions by providing secure, electronic access to a CMV
driver's 5-year crash and 3-year inspection history from FMCSA's MCMIS
database.
J. Reporting of Traffic Violations Generally
One commenter asked if the rule applies to reporting past
convictions for driving while intoxicated and driving under the
influence. Another commenter recommended a change so that drivers would
not have to report less serious and minor traffic violations to their
employers.
FMCSA response: This rule only eliminates Sec. 391.27 and its
requirement that drivers operating CMVs in interstate commerce prepare
and submit a list of their traffic convictions to their employers
annually. It does not change the requirement in Sec. 383.31 for CDL
drivers to inform their employers of all traffic convictions in any
type of vehicle within 30 days. It also does not change the conviction
information required to be provided to prospective employers on
employment applications under Sec. 391.21. Thus, convictions for
driving while intoxicated and driving under the influence continue to
be reportable under Sec. Sec. 383.31 and 391.21. These regulations
require reporting of all traffic convictions other than those that
relate only to parking. FMCSA did not propose and is not considering a
change to the reporting requirements for these regulations.
K. Outside the Scope of the Rulemaking
Two commenters recommended changes to the requirements in Sec.
391.21 for employment applications. One recommended that paragraphs
(b)(7), (b)(8), and (b)(9), which require reporting of accidents,
traffic convictions, and actions against a driver's license,
respectively, be eliminated because they also are duplicative. The
other commenter recommended the elimination of paragraph (b)(11) that
requires 10 years of driving history for drivers applying to operate a
CMV that requires a CDL.
Rather than responding to the proposed rule, one commenter reported
on the commenter's own driving record. Another commenter recommended a
regulatory change to require drivers and motor carriers to confer to
ensure citations have been paid in a timely manner. Alternatively, the
commenter recommended that FMCSA create a public system that could be
checked to see whether citations have been paid.
Several commenters addressed regulations and concerns relating to
electronic logging devices, hours of service, the Drug and Alcohol
Clearinghouse, brokers, and the Compliance, Safety, Accountability
(CSA) program. One commenter stated it does not make sense that medical
certification must be maintained when a driver is taking a break from
trucking. Another commenter suggested that money saved be used to
educate medical examiners on FMCSA protocols and regulations.
FMCSA response: Because these comments are outside the scope of
this rulemaking or are not responsive to the NPRM, no response from
FMCSA is required. However, while general changes to the employment
application in Sec. 391.21 are outside the scope of this rulemaking,
the Agency published an advance notice of proposed rulemaking on March
19, 2019 that requested comment on changes to Sec. 391.21 (84 FR
8497). Additionally, the requirement that drivers provide their
employment history operating a CMV requiring a CDL during the prior 10
years when applying to operate such a CMV is statutorily mandated;
therefore, FMCSA may not eliminate that requirement (see 49 U.S.C.
31303(c) and 49 CFR 383.35). Commenters presenting an issue that is
outside of the scope of this rulemaking may wish to consult Sec.
389.31 for information on how to petition FMCSA to establish, amend,
interpret, clarify, or withdraw a regulation to the extent such options
relate to their concerns.
VII. Guidance
FMCSA employs guidance to explain how the Agency applies
regulations to specific facts. Such guidance does not have the force
and effect of law, is strictly advisory, and is not meant to bind the
public in any way. Conformity with guidance is voluntary. Guidance is
intended only to provide information to the public regarding existing
requirements under the law or FMCSA policies. Guidance does not alter
the substance of a regulation. Guidance for specific regulations is
available through the Guidance Portal on FMCSA's website.
This rule amends regulations that have associated guidance. FMCSA
changes the guidance to conform to the changes made in this rule.
A. Section 391.23 Investigation and Inquiries
FMCSA revises Question 2 to Sec. 391.23 \9\ as proposed 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.'' The
revised guidance for Question 2 reads as follows:
---------------------------------------------------------------------------
\9\ Available at https://www.fmcsa.dot.gov/registration/commercial-drivers-license/may-motor-carriers-use-third-parties-ask-state-agencies (FMCSA-DQ-391.23-Q002) (last accessed Oct. 13, 2021).
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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
[[Page 13199]]
contact driver's licensing authorities. However, the motor carrier is
responsible for ensuring the information obtained is accurate.
B. Section 391.25 Annual Inquiry and Review of Driving Record
With respect to Question 1 to Sec. 391.25,\10\ Driver iQ
recommended that the guidance be revised to make clear that the
driver's list of convictions is not part of ``information about the
driver's experience'' that is ``reasonably available.'' Driver iQ
stated, ``This change would be consistent with the spirit and letter of
the NPRM, and it would clarify what information is reasonably available
to a motor carrier going forward.'' While the Agency has considered
Driver iQ's suggestion to revise the guidance in Question 1, FMCSA has
concluded that a change is not needed based on the elimination of the
Sec. 391.27 requirements.
---------------------------------------------------------------------------
\10\ Available at https://www.fmcsa.dot.gov/registration/commercial-drivers-license/what-extent-must-motor-carrier-review-drivers-overall (FMCSA-DQ-391.25-Q001)) (last accessed Oct. 13,
2021).
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Accordingly, the Agency revises Question 1 to Sec. 391.25 as
proposed to reflect that MVRs must be requested from all ``driver's
licensing authorities'' rather than only ``States.'' FMCSA makes an
additional change for clarity. The Agency replaces the words ``are such
indications'' with ``are indications of disregard for public safety.''
The revised guidance for Question 1 reads as follows:
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 indications of disregard for public safety and must be considered.
A violation of size and weight laws should also be considered.
With respect to Question 3 to Sec. 391.25,\11\ the Agency revises
the question as proposed to reflect that MVRs must be requested from
all ``driver's licensing authorities,'' rather than only ``States,''
and to improve clarity and correct grammatical errors. In addition,
FMCSA removes the first sentence of the proposed guidance because it is
not responsive to the question. The sentence provided, ``An examination
of the official driving record maintained by the driver's licensing
authority is not required during the annual review.'' The revised
guidance for Question 3 reads as follows:
---------------------------------------------------------------------------
\11\ Available at https://www.fmcsa.dot.gov/registration/commercial-drivers-license/may-motor-carriers-use-third-parties-ask-state-agencies-0 ((FMCSA-DQ-391.25-Q003)) (last accessed Oct. 13,
2021).
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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. 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.
C. Section 391.27 Record of Violations
FMCSA rescinds the guidance to Sec. 391.27 as proposed.
VIII. Changes From the NPRM
In this final rule, FMCSA adopts all the provisions proposed in the
NPRM and introduces additional minor clarifications and conforming
changes. FMCSA amends the definition of motor vehicle record in Sec.
390.5T (Definitions) by clarifying that only records of drivers
licensed by a State are subject to the Driver Privacy Protection Act
and by making editorial changes for clarity. The definition reads,
``Motor vehicle record means the report of the driving status and
history of a driver generated from the driver record that is provided
to users, such as drivers or employers, and, for drivers licensed by a
State, is subject to the provisions of the Driver Privacy Protection
Act, 18 U.S.C. 2721-2725.'' FMCSA conforms Sec. 391.63(b) by changing
``State'' to ``driver's licensing authority'' in the first sentence.
The Agency also makes conforming changes to address cross-
references impacted by the elimination of Sec. 391.27 and
redesignation of section paragraphs. In newly redesignated Sec.
391.51(b)(6)(iii), FMCSA changes the reference from ``Sec.
391.51(b)(8)'' to ``Sec. 391.51(b)(7).'' In Sec. 391.67(a) (Farm
vehicle drivers of articulated commercial motor vehicles), the Agency
changes the references from ``Section 391.11(b)(1), (b)(6) and (b)(8)''
to ``Section 391.11(b)(1) and (b)(7).'' Similarly, in Sec. 391.68(a)
(Private motor carrier of passengers (nonbusiness)), the Agency changes
the references from ``Section 391.11(b)(1), (b)(6) and (b)(8)'' to
``Section 391.11(b)(1) and (b)(7).''
IX. 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 rule on
foreign licensed drivers and foreign motor carriers operating CMVs in
the United States are discussed throughout the preamble of this rule.
X. Section-by-Section Analysis
This section summarizes the regulatory changes FMCSA makes to 49
CFR parts 385, 390, and 391. FMCSA adopts all the provisions as
proposed in the NPRM and repeats the specific changes for the
convenience of the reader. FMCSA also describes additional minor
clarifications and conforming changes made in Sec. Sec. 390.5T,
391.51, 391.63, 391.67, and 391.68.
A. Part 385
Appendix B to Part 385--Explanation of Safety Rating Process
In Section VII of Appendix B to Part 385, FMCSA makes conforming
changes to the List of Acute and Critical Regulations. Specifically,
the current entry for Sec. 391.51(b)(7) (failing to maintain medical
examiner's certificate in driver's qualification file (critical)) is
redesignated as Sec. 391.51(b)(6). This reflects that current Sec.
391.51(b)(6), which relates to removed Sec. 391.27, is deleted and
that the paragraphs in that section are redesignated.
B. Part 390
Sections 390.5T and 390.5 (Suspended) \12\--Definitions
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\12\ On January 17, 2017, FMCSA suspended certain regulations
relating to the electronic Unified Registration System and delayed
their effective date indefinitely (82 FR 5292). The suspended
regulations were replaced by temporary provisions that contain the
requirements in place on January 13, 2017. Section 390.5 was one of
the sections suspended and Sec. 390.5T, which is currently in
effect, was one of the replacement sections added (82 FR 5311).
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In addition to the changes proposed in the NPRM, FMCSA amends the
definition of motor vehicle record in Sec. Sec. 390.5T and 390.5 by
inserting ``, for drivers licensed by a State only, is'' before the
reference to the Driver Privacy Protection Act. This clarifies that
only records of drivers licensed by a State are subject to the Driver
Privacy Protection Act. FMCSA also makes minor changes for clarity. The
Agency replaces the comma before ``provided'' with ``that is'' and
deletes the comma after ``such as.'' The definition reads, ``Motor
vehicle record means the report of the driving status and history of a
[[Page 13200]]
driver generated from the driver record that is provided to users, such
as drivers or employers, and, for drivers licensed by a State, is
subject to the provisions of the Driver Privacy Protection Act, 18
U.S.C. 2721-2725.
C. Part 391
Section 391.11--General Qualifications of Drivers
In Sec. 391.11, FMCSA removes paragraph (b)(6), which relates to
removed Sec. 391.27, and redesignates paragraphs (b)(7) and (b)(8) as
paragraphs (b)(6) and (b)(7).
Section 391.21--Application for Employment
In Sec. 391.21(b)(5), FMCSA changes the reference to a ``State''
to a ``driver's licensing authority.''
Section 391.23--Investigation and Inquiries
In paragraphs (a)(1) and (b) of Sec. 391.23, FMCSA changes the
references to a ``State'' to a ``driver's licensing authority.'' In
paragraph (b), FMCSA also removes the requirement for a motor carrier
to certify that no record exists when no MVR is received from the
licensing authority for a driver.
Section 391.25--Annual Inquiry and Review of Driving Record
In Sec. 391.25(a), FMCSA replaces the words ``the appropriate
agency of every State in which'' with the words ``each driver's
licensing authority where.''
Section 391.27--Record of Violations
FMCSA removes Sec. 391.27 and reserves it for future use.
Section 391.51--General Requirements for Driver Qualification Files
FMCSA makes several changes to Sec. 391.51. The Agency deletes the
words ``State'' in paragraph (b)(2) and ``State driver licensing
agency'' in paragraph (b)(4) and adds in their place the words
``driver's licensing authority.'' FMCSA deletes paragraph (b)(6), which
relates to deleted Sec. 391.27, and redesignates paragraphs (b)(7)
through (b)(9) as paragraphs (b)(6) through (b)(8). The Agency revises
paragraph (d)(1) by deleting the words ``State driver licensing
agency'' and adding in their place ``driver's licensing authority.''
FMCSA deletes paragraph (d)(3), to remove the reference to deleted
Sec. 391.27, and redesignates paragraphs (d)(4) through (d)(6) as
paragraphs (d)(3) through (d)(5). The cross-reference in newly
redesignated paragraph (d)(3) is changed from ``Sec.
391.51(b)(7)(ii)'' to ``Sec. 391.51(b)(6)(ii)'' to reflect the
redesignations in paragraph (b). Finally, in addition to the changes
proposed in the NPRM, FMCSA changes the internal cross-reference in
newly redesignated paragraph (b)(6)(iii) from ``Sec. 391.51(b)(8)'' to
``Sec. 391.51(b)(7)'' to reflect the redesignations in paragraph (b).
Section 391.63--Multiple-Employer Drivers
In Sec. 391.63, FMCSA removes paragraph (a)(5) to delete the
reference to Sec. 391.27. The Agency conforms punctuation to reflect
paragraphs (a)(3) and (a)(4) are now the last in the list. In addition
to the changes proposed in the NPRM, FMCSA conforms the first sentence
of paragraph (b) by changing ``State'' to ``driver's licensing
authority.'' FMCSA also replaces all instances of ``his/her'' with
``the driver's'' and adds a serial comma after ``type.''
Section 391.67--Farm Vehicle Drivers of Articulated Commercial Motor
Vehicles and Section 391.68--Private Motor Carrier of Passengers
(Nonbusiness)
In addition to the changes proposed in the NPRM, FMCSA makes
conforming changes to cross-references in Sec. Sec. 391.67 and 391.68.
The changes are necessary because FMCSA deletes from Sec. 391.11 the
paragraph previously designated as (b)(6) (relating to removed Sec.
391.27) and redesignates the remaining paragraphs. Accordingly, FMCSA
changes the cross-references in Sec. Sec. 391.67(a) and 391.68(a) from
``391.11(b)(1), (b)(6) and (b)(8)'' to ``391.11(b)(1) and (b)(7).''
XI. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA has considered the impacts of this rule under 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, and DOT's regulatory policies and
procedures. OIRA within OMB has determined that this rule is not a
significant regulatory action under section 3(f) of E.O. 12866.
Accordingly, OMB has not reviewed it under that E.O.
As described above, the purpose of this 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 convictions. This rule retains 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, this rule modifies 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 makes 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 require motor carriers to request MVRs from Canadian and
Mexican driver's licensing authorities. A change is also 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 can make the required inquiries under Sec. 391.23.
These changes do not add new reporting or recordkeeping costs.
The elimination of Sec. 391.27 results in cost savings to drivers
because they will no longer spend time completing a list of convictions
for traffic violations. It will also result in cost savings to motor
carriers because they will no longer have to file the lists in driver
qualification files. The Agency estimates that this rule will result in
cost savings to CMV drivers and motor carriers of $35.5 million over 10
years on an undiscounted basis, and $24.9 million discounted at 7
percent over the 10-year analysis period. Expressed on an annualized
basis, this equates to cost savings of $3.5 million at a 7 percent
discount rate.
The changes to Sec. Sec. 391.21, 391.23, and 391.25 do not
increase reporting or recordkeeping costs. This rule institutes 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. However, the current OMB-approved information
collection request (ICR) 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 will not incur an increase in costs or
burdens resulting from this rule. Nonetheless, FMCSA retains these
costs and burdens under OMB Control Number 2126-0004 to treat all motor
carriers consistently and for administrative convenience.
[[Page 13201]]
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 (the online
application). 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 MVRs 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 requiring MVR inquiries to Canadian and Mexican
driver's licensing authorities will 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 6.8
million CMV drivers reported in FMCSA's 2020 Pocket Guide to Large
Truck and Bus Statistics,\13\ the Agency estimates that at most only
2.3 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 2.8 percent
represents 149,119 drivers reported as being employed by Canadian and
Mexican motor carriers operating in the United States.
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\13\ Available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-10/FMCSA%20Pocket%20Guide%202020-v8-FINAL-10-29-2020.pdf
(last accessed Aug. 12, 2021).
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Canadian and Mexican motor carriers are already required by their
applicable safety codes to request MVRs for their drivers from their
licensing authorities.\14\ Accordingly, FMCSA has determined that the
changes to Sec. Sec. 391.23 and 391.25 to require inquiries to
Canadian and Mexican driver's licensing authorities for MVRs will not
impose any new recordkeeping or reporting costs or burdens because
Canadian and Mexican motor carriers are already making these inquiries.
Though Canadian and Mexican motor carriers will not be required to
change their current business practices and would not have any new
costs or burdens imposed as a result of the final rule, FMCSA continues
to include the costs and burdens for requesting MVRs in the information
collections to treat all carriers consistently and for administrative
convenience.
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\14\ Canadian National Safety Code (NSC) Standard 15, Facility
Audit, establishes the minimum requirements for a Facility Audit and
the contents of a driver's personnel/payroll records. 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.
In addition, the driver's personnel/payroll record 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 (last
accessed Nov. 23, 2021). 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 (last accessed Nov. 23, 2021).
---------------------------------------------------------------------------
This rule does not increase costs to motor carriers because of fees
paid to Canadian and Mexican driver's licensing authorities to request
MVRs. The OMB-approved supporting statement for the Driver
Qualification Files ICR, OMB Control Number 2126-0004 (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 an MVR 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 MVRs in Mexico. However, fees are considered a transfer
payment, so they are not included in the benefit-cost analysis. They
are included in the Paperwork Reduction Act supporting statement
prepared for the final rule.
For all the above reasons, FMCSA has determined that the changes to
Sec. Sec. 391.23 and 391.25 to require inquiries to Canadian and
Mexican driver's licensing authorities to request MVRs will 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 the supporting
statement for the Driver Qualification Files ICR. In this ICR, 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 2022 through 2031, in the absence of the
final rule.
Driver Population Projection
The driver population is based on a 0.448 percent annual growth
rate applied to the 6.8 million driver population reported in FMCSA's
2020 Pocket Guide to Large Truck and Bus Statistics.\15\ The growth
rate is a weighted average of the annual compound growth rates
estimated using the United States Department of Labor (DOL), Bureau of
Labor Statistics (BLS) Employment Projections Program point projections
for the four categories of commercial vehicle drivers for 2019 and
2029.
---------------------------------------------------------------------------
\15\ Available at https://www.fmcsa.dot.gov/sites/fmcsa.dot.gov/files/2020-10/FMCSA%20Pocket%20Guide%202020-v8-FINAL-10-29-2020.pdf
(last accessed Oct. 26, 2021).
---------------------------------------------------------------------------
Table 1 shows the calculation of the growth rate and the
calculation of the weighted average compound growth rate.\16\
---------------------------------------------------------------------------
\16\ DOL, BLS. Occupational Employment and Wages, May 2020, 53-
0000 Transportation and Material Moving Occupations. Available at
https://www.bls.gov/oes/current/oes530000.htm (last accessed Aug.
12, 2021).
[[Page 13202]]
Table 1--Population Growth Rate
----------------------------------------------------------------------------------------------------------------
BLS standard occupation code 2019 Total 2019 2029 Compound annual Weighted
(SOC) employment Employment Projected growth rate in average
------------------------------- (thousands) percentage of total employment compound
---------------- total (%) employment (2019-2029) (%) growth rate
---------------- (thousands) ------------------ (%)
A B = A / Sum of ---------------- D = ((C / A) (1 ---------------
Column A C / 10))-1 E = B x D
----------------------------------------------------------------------------------------------------------------
Heavy and tractor-trailer 2,030 52.2 2,061 0.150 0.078
truck drivers (53-3032)......
Light truck or delivery 1,019 26.2 1,079 0.579 0.15
services drivers (53-3033)...
Passenger vehicle drivers, 614 15.8 682 1.056 0.17
except bus drivers, transit
and intercity (53-3058) *....
Bus drivers, transit and 223 5.7 244 0.894 0.05
intercity (53-3052) **.......
---------------------------------------------------------------------------------
Weighted Average Growth .............. .............. .............. ................ 0.448
Rate.....................
----------------------------------------------------------------------------------------------------------------
Note: The 0.448 percent weighted average growth rate does not equal the sum of the components due to rounding.
* BLS SOC 53-3058 is a new category introduced in 2019. Data for prior years are the sum of two now discontinued
subcategories, SOCs 53-3022 and 53-3041.
** SOC 53-3021 changed to SOC 53-3052.
Table 2 shows the extrapolation of the driver population from the
6.8 million driver population at a 0.448 percent average annual growth.
The 10-year projection period used in this analysis begins in 2022 and
ends in 2031. This 10-year population projection is the base from which
the Agency estimates the number of drivers who, in the absence of the
final rule, would be required to provide motor carriers an annual list
of violations.
Table 2--Driver Population 2022-2031
------------------------------------------------------------------------
Number of
Year drivers
------------------------------------------------------------------------
2022....................................................... 6,891,843
2023....................................................... 6,922,732
2024....................................................... 6,953,759
2025....................................................... 6,984,926
2026....................................................... 7,016,232
2027....................................................... 7,047,678
2028....................................................... 7,079,266
2029....................................................... 7,110,995
2030....................................................... 7,142,866
2031....................................................... 7,174,880
------------------------------------------------------------------------
The number of drivers who will no longer be required to submit an
annual list of convictions for traffic violations or certificate of no
convictions 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 77.1 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 ATA, which are over-the-road (OTR)
carriers at 92 percent, truckload (TL) carriers at 74 percent, and
less-than-truckload (LTL) carriers 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 67 percent for OTR drivers, 18 percent for TL drivers, and 15
percent for LTL drivers.\17\ As shown in Table 3, the sum of the
product of the turnover rates and percentage of drivers by category
results in a 77.1 percent weighted average turnover rate.
---------------------------------------------------------------------------
\17\ American Transportation Research Institute, ATRI Analysis
of the Operational Cost of Trucking: 2020 Update. Available at
https://truckingresearch.org/wp-content/uploads/2020/11/ATRI-Operational-Costs-of-Trucking-2020.pdf (last accessed Aug. 12,
2021).
Table 3--Weighted Average Turnover Rate
------------------------------------------------------------------------
Percent of
drivers in
Driver type Turnover rate driver type
(percent) category
(percent)
------------------------------------------------------------------------
Over-the-Road.......................... 92 67
Truckload.............................. 74 18
Less-than-Truckload.................... 14 15
--------------------------------
Weighted Average Turnover Rate..... ............... 77.1
------------------------------------------------------------------------
Note: The weighted average turnover rate is calculated as: (92% x 67%) +
(74% x 18%) + (14% x 15%) = 77.1%.
Table 4 shows the annual projections of the number of drivers
subject to the reporting requirements of Sec. 391.27 who will no
longer have to submit a list of convictions for traffic violations or
certificate of no convictions, as Sec. 391.27 is rescinded. 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. The projections cover the
10-year period ending in 2031.
[[Page 13203]]
Table 4--Driver Population Affected by Final Rule
----------------------------------------------------------------------------------------------------------------
Year Driver population Number of job Driver population
---------------------------------------------------------------------------- openings subject to Sec.
----------------- 391.27
A = from Table 2 -------------------
B = A x 77.1% C = A-B
----------------------------------------------------------------------------------------------------------------
2022................................................... 6,891,843 5,310,854 1,580,989
2023................................................... 6,922,732 5,334,657 1,588,075
2024................................................... 6,953,759 5,358,567 1,595,192
2025................................................... 6,984,926 5,382,584 1,602,342
2026................................................... 7,016,232 5,406,708 1,609,524
2027................................................... 7,047,678 5,430,941 1,616,737
2028................................................... 7,079,266 5,455,282 1,623,984
2029................................................... 7,110,995 5,479,733 1,631,262
2030................................................... 7,142,866 5,504,293 1,638,574
2031................................................... 7,174,880 5,528,963 1,645,918
----------------------------------------------------------------------------------------------------------------
Wage Rates
FMCSA evaluated the opportunity cost of time for drivers using a
rounded representative driver wage rate of $37 per hour. This hourly
cost represents the value of driver time that, in the absence of this
rule, the driver would spend completing a list of convictions for
traffic violations or certificate of no convictions but will now be
available to perform other tasks. Table 5 summarizes the estimation of
a weighted average hourly wage of $36.52 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 the BLS SOCs 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 ($26.45)
and average hourly benefits ($13.78) for the ``transportation and
warehousing'' sector.\18\ The ratio of the two values results in a 52.1
percent fringe benefit rate (52.1% = $13.78 per hour / $26.45) 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.\19\
---------------------------------------------------------------------------
\18\ DOL, BLS. ``Employer Cost of Employee Compensation December
2020 News Release,'' Table 4: Employer Costs for Employee
Compensation for private industry workers by occupational and
industry group. Available at https://www.bls.gov/news.release/pdf/ecec.pdf (last accessed Nov. 2, 2020).
\19\ To estimate the overhead rates on wages, the Agency used
industry data gathered for the Truck Costing Model developed by the
Upper Great Plains Transportation Institute, North Dakota State
University (Berwick, Farooq. Truck Costing Model for Transportation
Managers. North Dakota State University. Upper Great Plains
Transportation Institute. August 2003. Appendix A, pp. 42-47.
Available at http://www.mountain-plains.org/pubs/pdf/MPC03-152.pdf
(last accessed Aug. 20, 2021)). Research conducted for this model
found an average cost of $0.107 per mile of CMV operation for
management and overhead, and $0.39 per mile for labor, indicating an
overhead rate of 27 percent (27% = $0.107 / $0.39 (rounded to the
nearest whole percent)).
Table 5--Driver Hourly Wage Including Fringe Benefits and Motor Carrier Overhead
--------------------------------------------------------------------------------------------------------------------------------------------------------
Standard occupation title and code Total drivers % of Total Median hourly Weighted Fringe Overhead rate Weighted
--------------------------------------------------------- drivers base wage hourly wage benefits rate (%) average hourly
------------------------------------------------ (%) ---------------- cost
---------------- ---------------
A = from BLS B = A / Sum of C = from BLS G = D + (D x
OES Data Column A OES Data D = B x C E = from BLS F 0.521) + (D x
ECEC Data 0.274)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Heavy and tractor-trailer truck drivers 1,797,710 54.1% $22.66 $12.26 52.1 27.4 $22.01
(53-3032)..............................
Light truck or delivery services drivers 929,470 28.0% $17.81 $4.98 52.1 27.4 $8.94
(53-3033)..............................
Bus drivers, transit and intercity (53- 162,850 4.9% $22.07 $1.08 52.1 27.4 $1.94
3052)..................................
Passenger vehicle drivers, except bus 431,986 13.0% $15.54 $2.02 52.1 27.4 $3.63
drivers, transit and intercity (53-
3058)..................................
---------------------------------------------------------------------------------------------------------------
Weighted Average Driver Wage........ .............. .............. .............. .............. .............. .............. $36.52
--------------------------------------------------------------------------------------------------------------------------------------------------------
Notes:
(a) The number of drivers is the number of respondents by SOC included in the BLS survey. BLS discontinued the publication of SOC 53-3022, instead it is
now included in SOC 53-3058. FMCSA derived the total employees for the original SOC 53-3022 by multiplying it by 0.72.
(b) The $36.52 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 or certificates of
no convictions 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 $16.39 (SOC 43-4071). The hourly wage
is increased for fringe benefits and motor carrier overhead, which
results in a $29.42 wage, rounded to $29 (29.42 = $16.39 + (16.39 x
(1+52.1%) +16.39 x (1+27.4%)).
[[Page 13204]]
Costs
This rule will result in cost savings to drivers and motor
carriers. Drivers' cost savings will be the result of no longer having
to prepare an annual list of convictions for traffic violations or
certificates of no convictions for their employers. Motor carriers will
realize cost savings from no longer having to file the lists and
certificates in driver qualification files. The Agency estimates that
drivers and motor carriers will 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 $19.9 million. At a 7 percent discount
rate, driver cost savings are estimated at $14.0 million and annualized
cost savings are estimated at $2.0 million.
Table 6--Driver Cost Savings
----------------------------------------------------------------------------------------------------------------
Driver Driver burden Driver costs Driver cost at 7%
------------------------------------------ population hours (million) ($ million) discount rate ($
providing lists ---------------------------------- million)
of convictions ------------------
------------------ B = A x (2
A = from Table minutes / 60) C = B x $37 D
4, column C
----------------------------------------------------------------------------------------------------------------
2022..................................... 1,580,989 0.053 ($1.9) ($1.8)
2023..................................... 1,588,075 0.053 (2.0) (1.7)
2024..................................... 1,595,192 0.053 (2.0) (1.6)
2025..................................... 1,602,342 0.053 (2.0) (1.5)
2026..................................... 1,609,524 0.054 (2.0) (1.4)
2027..................................... 1,616,737 0.054 (2.0) (1.3)
2028..................................... 1,623,984 0.054 (2.0) (1.3)
2029..................................... 1,631,262 0.054 (2.0) (1.2)
2030..................................... 1,638,574 0.055 (2.0) (1.1)
2031..................................... 1,645,918 0.055 (2.0) (1.0)
----------------------------------------------------------------------
Total................................ ................ 0.54 (19.9) (14.0))
----------------------------------------------------------------------
Annualized........................... ................ ................ .............. (2.0)
----------------------------------------------------------------------------------------------------------------
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
$15.6 million. At a 7 percent discount rate, motor carrier cost savings
are estimated at $10.9 million and annualized cost savings are
estimated at $1.6 million.
Table 7--Motor Carrier Cost Savings
----------------------------------------------------------------------------------------------------------------
Number of lists Motor carrier Motor carrier Motor carrier
------------------------------------------ of convictions burden hours costs ($ cost at 7%
to file (million) million) discount rate ($
---------------------------------------------------- million)
A = from Table B = A x (2 ------------------
4, column C minutes / 60) C = B x $29 D
----------------------------------------------------------------------------------------------------------------
2022..................................... 1,580,989 0.053 ($1.5) ($1.4)
2023..................................... 1,588,075 0.053 (1.5) (1.3)
2024..................................... 1,595,192 0.053 (1.5) (1.3)
2025..................................... 1,602,342 0.053 (1.5) (1.2)
2026..................................... 1,609,524 0.054 (1.6) (1.1)
2027..................................... 1,616,737 0.054 (1.6) (1.0)
2028..................................... 1,623,984 0.054 (1.6) (1.0)
2029..................................... 1,631,262 0.054 (1.6) (0.9)
2030..................................... 1,638,574 0.055 (1.6) (0.9)
2031..................................... 1,645,918 0.055 (1.6) (0.8)
----------------------------------------------------------------------
Total................................ ................ 0.54 (15.6) (10.9)
----------------------------------------------------------------------
Annualized........................... ................ ................ .............. (1.6)
----------------------------------------------------------------------------------------------------------------
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.
[[Page 13205]]
The estimated cost savings resulting from rescinding Sec. 391.27
total $35.5 million over the 10-year projection period. At a 7 percent
discount rate, the estimated total cost savings are $24.9 million and
the annualized cost savings are $3.5 million.\20\
---------------------------------------------------------------------------
\20\ Totals are a sum of unrounded components and therefore may
not add up.
---------------------------------------------------------------------------
Benefits
This rule will 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 or certificate of no violations on an annual basis will
reduce the paperwork burden and result in cost savings for drivers and
motor carriers. FMCSA does not expect this rule to affect safety
negatively. Motor carriers will still be made aware of their employees'
convictions for driving violations via the annual MVR check required in
Sec. 391.25.
B. Congressional Review Act
This final rule is not a major rule as defined under the
Congressional Review Act (5 U.S.C. 801-808).\21\
---------------------------------------------------------------------------
\21\ A major rule means any rule that 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)).
---------------------------------------------------------------------------
C. Regulatory Flexibility Act (Small Entities)
The Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA),\22\ 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 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 (5
U.S.C. 601(6)). 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. Consistent
with SBREFA and DOT policy, FMCSA conducted an initial regulatory
flexibility analysis, published the analysis with the NPRM, and
requested comments. Although FMCSA received numerous public comments on
the NPRM for this rule, there were no comments specific to the initial
regulatory flexibility analysis. The Chief Counsel for Advocacy of the
Small Business Administration (SBA) did not file comments in response
to the proposed rule. FMCSA subsequently reviewed the available
information on the number of affected small entities and the impact of
the rule on those small entities and presents the analysis and
certification below.
---------------------------------------------------------------------------
\22\ Public Law 104-121, 110 Stat. 857 (Mar. 29, 1996), 5 U.S.C.
601 note.
---------------------------------------------------------------------------
Affected Small Entities
This final rule affects 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.\23\
---------------------------------------------------------------------------
\23\ 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.
---------------------------------------------------------------------------
Under the RFA, as amended, motor carriers may be considered small
entities based on the size standards defined by SBA to classify
entities as small. SBA establishes separate standards for each
industry, as defined by the North American Industry Classification
System (NAICS).\24\ This rule could affect motor carriers in many
different industry sectors in addition to the Transportation and
Warehousing sector (NAICS sectors 48 and 49); for example, the
Construction sector (NAICS sector 23), the Manufacturing sector (NAICS
sectors 31, 32, and 33), and the Retail Trade sector (NAICS sectors 44
and 45). Not all entities within these industry sectors will be
impacted by this rule; therefore, FMCSA cannot determine the number of
small entities based on the SBA size standards. However, FMCSA
anticipates that the majority of entities in the Truck Transportation
subsector (NAICS code 484) and the Transit and Ground Transportation
subsector (NAICS Code 485) are motor carriers that will be affected by
this rule. FMCSA used data from the 2017 Economic Census to determine
the percentage of motor carriers with annual revenue at or below the
SBA size standards.\25\ The Economic Census sums the number of firms
classified according to their NAICS code by ranges of annual revenue.
FMCSA used the annual revenue ranges with the high end closest to the
SBA thresholds to determine the percentage of freight and passenger
carriers that meet the definition of an SBA small entity. As discussed
below, the Agency estimates that 99.2 percent of trucking firms and
99.4 percent of passenger carriers are classified as small businesses.
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 99.2
percent of survey respondents. The Agency finds that this 99.2 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 would be considered an SBA small entity. 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.\26\ 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 99.4 percent of
survey respondents within the three
[[Page 13206]]
subsectors. Thus, the Agency finds that 99.4 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.
---------------------------------------------------------------------------
\24\ Executive Office of the President, OMB. ``North American
Industry Classification System.'' 2017. Available at https://www.census.gov/library/publications/2017/econ/2017-naics-manual.html
(last accessed Oct. 29, 2021).
\25\ U.S. Census Bureau, 2017 Economic Survey, Table
EC1700SIZEREVEST, Available at https://data.census.gov/cedsci/table?t=Value%20of%20Sales,%20Receipts,%20Revenue,%20or%20Shipments&n=485&tid=ECNSIZE2017.EC1700SIZEREVEST&hidePreview= (last accessed
Oct 15, 2021).
\26\ Commuter rail, public transit systems, taxi, limousine, and
special needs transportation that are included in Subsector 485 are
excluded from the analysis.
---------------------------------------------------------------------------
Therefore, FMCSA concludes that this rule will impact a substantial
number of small entities.
Impact
The Agency rescinds Sec. 391.27 because it duplicates drivers'
conviction information contained on MVRs that motor carriers currently
receive annually pursuant to Sec. 391.25. The elimination of Sec.
391.27 results in cost savings to motor carriers because they will no
longer have to file the lists and certificates in driver qualification
files. FMCSA estimates a cost savings to all motor carriers of $1.56
million annualized at a 7 percent discount rate from time savings (2
minutes per driver list of traffic convictions or certificate of no
convictions) at an hourly wage rate of $29 per hour.
In order to determine if this impact would be significant, FMCSA
considers the impact as a percentage of annual revenue and estimates
the impact to be significant if it surpasses 1 percent of revenue. For
each affected driver, an individual motor carrier will save an
estimated $0.87 ($29 x .03 hours). The motor carrier would need to have
annual revenue below $87 ($.87 / 0.01) in order for this impact to
reach the threshold of significance. It is not possible to determine
the maximum number of drivers who would be affected at a given motor
carrier in any 1 year. For illustrative purposes, FMCSA depicts the
impact if a motor carrier employed 15 affected drivers. The annual
opportunity cost savings would be $13.05 ($29 x .03 hours x 15
drivers), and the motor carrier would need to have annual revenues of
equal to or less than $1,305 for the impact to be considered
significant. FMCSA considers it unlikely that a motor carrier would be
able to operate with such low revenues in light of the sizeable
expenses to own and maintain CMVs and support employees. The impact of
this rule increases linearly with the number of affected drivers (i.e.,
for each affected driver, the impact increases by $0.87 per year);
however, FMCSA does not anticipate that this rule will result in a
significant impact on small motor carriers regardless of the number of
affected drivers per motor carrier.
Section 391.25, as revised, requires 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 is made to Sec. 391.23(a) to require motor
carriers to request MVRs from all driver's licensing authorities when
hiring new drivers. As discussed earlier in the rule, the changes to
Sec. Sec. 391.23 and 391.25 do not increase costs to motor carriers.
Therefore, I hereby certify that this rule will not have a
significant impact on a substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of SBREFA,\27\ FMCSA wants to
assist small entities in understanding this final rule so they can
better evaluate its effects on themselves and participate in the
rulemaking initiative. If the final rule will 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.
---------------------------------------------------------------------------
\27\ Public Law 104-121, 110 Stat. 857, 558 (Mar. 29, 1996), 5
U.S.C. 601 note.
---------------------------------------------------------------------------
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.
E. 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. 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 $170 million (which is the value equivalent
of $100 million in 1995, adjusted for inflation to 2020 levels) or more
in any 1 year. Although this final rule does not result in such an
expenditure, the Agency does discuss the effects of this rule elsewhere
in this preamble.
F. Paperwork Reduction Act (Collection of Information)
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. An agency is prohibited from
collecting or sponsoring an information collection, as well as imposing
an information collection requirement, unless it displays a valid OMB
control number (5 CFR 1320.8(b)(3)(vi)).
This final rule revises the existing Driver Qualification Files ICR
(OMB Control Number 2126-0004), which expires April 30, 2023. FMCSA
revises the ICR due to the Agency's development of this rule and to
provide updated information on the driver population, driver turnover
rates, and driver wage rates. FMCSA seeks approval for the revision and
renewal of the currently approved information collection. FMCSA will
submit a copy of the final rule to OIRA at OMB for review and approval
of the information collections.
Title: Driver Qualification Files.
OMB Control Number: 2126-0004.
Type of Review: Revision and renewal of a currently approved
information collection.
Summary: The final rule eliminates Sec. 391.27, which requires
that a driver operating a CMV must complete a list of convictions for
traffic violations or a certification of no traffic convictions and
submit the list or certification to the driver's employing motor
carrier on an annual basis. The motor carrier must file the list or
certification in the driver's qualification file. The elimination of
Sec. 391.27 also eliminates its related information collections in 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 requirements of Sec. 391.27 are largely duplicative of the
requirements in Sec. 391.25 that motor carriers must make an annual
inquiry to States 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, this rule modifies 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
requires motor carriers to request MVRs from Canadian and Mexican
driver's licensing authorities. To maintain consistency within part 391
with respect to requests for MVRs, FMCSA makes conforming changes to
Sec. 391.23 to require motor carriers to request
[[Page 13207]]
MVRs from driver's licensing authorities, instead of States, for the 3
years preceding the date of employment when hiring a driver. FMCSA also
changes 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 that motor carriers can make the
required inquiries under Sec. 391.23.
The changes to Sec. Sec. 391.21, 391.23, and 391.25 do 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). Also, for
purposes of information collection burden calculation, the median fee
for obtaining an MVR from either a foreign or a domestic authority is
the same.
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, although this rule institutes 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.
The changes to Sec. Sec. 391.23 and 391.25 also do not increase
costs to motor carriers resulting from fees paid to Canadian and
Mexican driver's licensing authorities to obtain 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. There is no fee to obtain MVRs in Mexico.\28\
---------------------------------------------------------------------------
\28\ Although Mexican motor carriers do not pay a fee to obtain
MVRs, FMCSA continues to include the cost for consistency and
administrative convenience.
---------------------------------------------------------------------------
Response to comments: The NPRM served as the 60-day notice for the
ICR revision and requested public comment on the information collection
(85 FR 80745, Dec. 14, 2020). With respect to the information
collections associated with Sec. 391.27, a driver commented that the
driver recently filled out the required paperwork and that it took
about 1 minute.\29\ FMCSA estimates that it takes drivers 2 minutes to
complete a list of convictions or certificate of no convictions. One
motor carrier commented that complying with Sec. 391.27 is a
``laborious task'' and that it takes the better part of a month to
receive information from drivers.\30\ A motor carrier Director of
Safety commented that it is costly and time consuming to comply with
Sec. 391.27 and estimated the annual administrative burden to be in
excess of 100 hours.\31\ Five other commenters stated that complying
with Sec. 391.27 is a huge paperwork burden, time or labor intensive,
or a significant burden on motor carriers.\32\ FMCSA received no
substantive comments in response to the NPRM regarding the paperwork
burden relating to Sec. Sec. 391.21, 391.23, and 391.25.
---------------------------------------------------------------------------
\29\ See Ben Hooser comment available at https://www.regulations.gov/comment/FMCSA-2018-0224-0024.
\30\ See anonymous comment available at https://www.regulations.gov/comment/FMCSA-2018-0224-0072.
\31\ See Adrian O'Hara comment available at https://www.regulations.gov/comment/FMCSA-2018-0224-0073.
\32\ See Portland General Electric comment available at https://www.regulations.gov/comment/FMCSA-2018-0224-0082, anonymous comment
available at https://www.regulations.gov/comment/FMCSA-2018-0224-0087, anonymous comment available at https://www.regulations.gov/comment/FMCSA-2018-0224-0090, TCA comment available at https://www.regulations.gov/comment/FMCSA-2018-0224-0097, and Heritage-
Crystal Clean, LLC comment available at https://www.regulations.gov/comment/FMCSA-2018-0224-0101.
---------------------------------------------------------------------------
Burden estimates: The elimination of Sec. 391.27 deletes 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
OMB-approved burden associated with IC-2.1 is 0.06 million hours and
$2.16 million. The OMB-approved burden associated with IC-2.2 is 0.06
million hours and $1.74 million. Thus, the elimination of Sec. 391.27
results in a paperwork burden reduction of 0.12 million hours and $3.9
million for drivers and motor carriers. However, these reductions are
offset in the proposed burden due to increases in the driver
population, the driver turnover rate, and driver wage rates. The OMB-
approved burden for the ICR is 12.27 million hours at a cost of $350.64
million. The proposed burden for the ICR is 14.23 million hours at a
cost of $426.16 million.
The revised total annual estimated burden associated with the
Driver Qualification Files ICR that reflects the elimination of IC-2.1
and IC-2.2 and the updated driver population, driver turnover rate, and
driver wage rate information is as follows.
Estimated number of respondents: 7.52 million (6.92 million drivers
+ 0.60 million motor carriers).
Estimated responses: 113.97 million.
Frequency: Responses may be random, annual, or when hiring a
driver.
Estimated burden hours: 14.23 million.
Estimated cost: $426.16 million.
Additional information for the assumptions, calculations, and
methodology summarized above is provided in the supporting statement.
The supporting statement is available in the docket for this
rulemaking.
Request for Comments: FMCSA asks for comment on the information
collection requirements of this rule, as well as the revised total
estimated burden associated with the information collections.
Specifically, the Agency asks for comment on: (1) Whether the proposed
information collections are 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
submit those comments as outlined under ADDRESSES at the beginning of
this final rule.
G. 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 has determined that this rule does 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.
H. Privacy
Section 522 of title I of division H of the Consolidated
Appropriations Act,
[[Page 13208]]
2005,\33\ requires the Agency to assess the privacy impact 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.
---------------------------------------------------------------------------
\33\ Public Law 108-447, 118 Stat. 2809, 3268 (Dec. 8, 2004), 5
U.S.C. 552a note.
---------------------------------------------------------------------------
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002 \34\ 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 will
collect, maintain, or disseminate information as a result of this rule.
Agency has completed a Privacy Threshold Assessment to evaluate the
risks and effects the rule has on collecting, storing, and sharing
personally identifiable information. FMCSA determined that this rule
does not create privacy risks to individuals. In addition, the Agency
submitted the Privacy Threshold Assessment to DOT's Privacy Officer for
review. The DOT Privacy Office also has determined that this rulemaking
does not create privacy risk.
---------------------------------------------------------------------------
\34\ Public Law 107-347, sec. 208, 116 Stat. 2899, 2921 (Dec.
17, 2002), 44 U.S.C. 3501 note.
---------------------------------------------------------------------------
I. E.O. 13175 (Indian Tribal Governments)
This 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.
J. National Environmental Policy Act of 1969
FMCSA analyzed this rule pursuant to 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.z. The
content in this rule is covered by the categorical exclusions in
paragraph 6.z.(1) regarding the minimum qualifications for individuals
who drive CMVs, and in paragraph 6.z.(2) regarding the minimum duties
of motor carriers with respect to the qualifications of their drivers.
In addition, this rule does not have any effect on the quality of the
environment.
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 390
Highway safety, Intermodal transportation, 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,
Transportation.
Accordingly, FMCSA amends 49 CFR chapter III as follows:
PART 385--SAFETY FITNESS PROCEDURES
0
1. The authority citation for part 385 continues 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.
113(a), Pub. L. 103-311, 108 Stat. 1673, 1676; sec. 408, Pub. L.
104-88, 109 Stat. 803, 958; sec. 350, Pub. L. 107-87, 115 Stat. 833,
864; sec. 5205, Pub. L. 114-94, 129 Stat. 1312, 1537; 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)''
in its place 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 390--FEDERAL MOTOR CARRIER SAFETY REGULATIONS; GENERAL
0
3. The authority citation for part 390 continues to read as follows:
Authority: 49 U.S.C. 113, 504, 508, 31132, 31133, 31134, 31136,
31137, 31144, 31149, 31151, 31502; sec. 114, Pub. L. 103-311, 108
Stat. 1673, 1677; secs. 212 and 217, Pub. L. 106-159, 113 Stat.
1748, 1766, 1767; sec. 229, Pub. L. 106-159 (as added and
transferred by sec. 4115 and amended by secs. 4130-4132, Pub. L.
109-59, 119 Stat. 1144, 1726, 1743, 1744), 113 Stat. 1748, 1773;
sec. 4136, Pub. L. 109-59, 119 Stat. 1144, 1745; secs. 32101(d) and
32934, Pub. L. 112-141, 126 Stat. 405, 778, 830; sec. 2, Pub. L.
113-125, 128 Stat. 1388; secs. 5403, 5518, and 5524, Pub. L. 114-94,
129 Stat. 1312, 1548, 1558, 1560; sec. 2, Pub. L. 115-105, 131 Stat.
2263; and 49 CFR 1.81, 1.81a, 1.87.
0
4. Amend Sec. 390.5 as follows:
0
a. Lift the suspension of the section;
0
b. Revise the definition of ``motor vehicle record''; and
0
c. Suspend the section indefinitely.
The revision reads as follows:
Sec. 390.5 Definitions.
* * * * *
Motor vehicle record means the report of the driving status and
history of a driver generated from the driver record that is provided
to users, such as drivers or employers, and, for drivers licensed by a
State, is subject to the provisions of the Driver Privacy Protection
Act, 18 U.S.C. 2721-2725.
* * * * *
0
5. Amend Sec. 390.5T by revising the definition of ``motor vehicle
record'' to read as follows:
Sec. 390.5T Definitions.
* * * * *
Motor vehicle record means the report of the driving status and
history of a driver generated from the driver record that is provided
to users, such as drivers or employers, and, for drivers licensed by a
State, is subject to the provisions of the Driver Privacy Protection
Act, 18 U.S.C. 2721-2725.
* * * * *
PART 391--QUALIFICATIONS OF DRIVERS AND LONGER COMBINATION VEHICLE
(LCV) DRIVER INSTRUCTORS
0
6. 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 [Amended]
0
7. Amend Sec. 391.11 by removing paragraph (b)(6) and redesignating
paragraphs (b)(7) and (8) as paragraphs (b)(6) and (7), respectively.
0
8. Amend Sec. 391.21 by revising paragraph (b)(5) to read as follows:
[[Page 13209]]
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
9. 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
10. Amend Sec. 391.25 by revising paragraph (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
11. Remove and reserve Sec. 391.27.
0
12. 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 newly redesignated paragraph (b)(6)(iii);
0
d. Revise paragraph (d)(1);
0
e. Remove paragraph (d)(3) and redesignate paragraphs (d)(4) through
(6) as paragraphs (d)(3) through (5), respectively; and
0
f. 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);
* * * * *
(6) * * *
(iii) If that driver obtained the medical certification based on
having obtained a medical variance from FMCSA, the motor carrier must
also include a copy of the medical variance documentation in the driver
qualification file in accordance with paragraph (b)(7) of this section;
* * * * *
(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 paragraph (b)(6)(ii) of this section;
* * * * *
0
13. Amend Sec. 391.63 as follows:
0
a. Revise paragraphs (a)(3) and (4);
0
b. Remove paragraph (a)(5); and
0
c. Revise the first sentence of paragraph (b).
The revisions 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).
(b) Before a motor carrier permits a multiple-employer driver to
drive a commercial motor vehicle, the motor carrier must obtain the
driver's name, the driver's social security number, and the
identification number, type, and issuing driver's licensing authority
of the driver's commercial motor vehicle operator's license. * * *
0
14. Amend Sec. 391.67 by revising paragraph (a) to read as follows:
Sec. 391.67 Farm vehicle drivers of articulated commercial motor
vehicles.
* * * * *
(a) Section 391.11(b)(1) and (7) (relating to general
qualifications of drivers);
* * * * *
0
15. Amend Sec. 391.68 by revising paragraph (a) to read as follows:
Sec. 391.68 Private motor carrier of passengers (nonbusiness).
* * * * *
(a) Section 391.11(b)(1) and (7) (relating to general
qualifications of drivers);
* * * * *
Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Acting Administrator.
[FR Doc. 2022-04930 Filed 3-8-22; 8:45 am]
BILLING CODE 4910-EX-P