2012-18902. Self Reporting of Out-of-State Convictions

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of proposed rulemaking; request for comments.

SUMMARY:

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

DATES:

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

ADDRESSES:

You may submit comments identified by Docket Number FMCSA-2012-0172 using any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.
• Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Avenue SE., West Building, Ground Floor, Room W12-140, Washington, DC 20590-0001.
• Hand Delivery or Courier: West Building, Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m. E.T., Monday through Friday, except Federal holidays.
• Fax: [phone].

To avoid duplication, please use only one of these four methods. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments. Comments received after the comment closing date will be included in the docket, and we will consider late comments to the extent practicable. FMCSA may, however, issue a final rule at any time after the close of the comment period.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

I. Public Participation and Request for Comments

A. Submitting Comments

B. Viewing Comments and Documents

C. Privacy Act

II. Legal Basis for the Rulemaking

III. Background

IV. Discussion of Proposed Rule

V. Regulatory Analyses

I. Public Participation and Request for Comments

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

A. Submitting Comments

If you submit a comment, please include the docket number for this rulemaking (FMCSA-2012-0172), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comment and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so that FMCSA can contact you if there are questions regarding your submission.

To submit your comment online, go to http://www.regulations.gov and click on the “Submit a Comment” box, which will then become highlighted in blue. In the “Document Type” drop-down menu, select “Proposed Rules,” insert “FMCSA-2012-0172” in the “Keyword” box, and click “Search.” When the new screen appears, click on “Submit a Comment” in the “Actions” column. If you submit your comment by mail or hand delivery, submit it in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you submit your comment by mail and would like to know that it reached the facility, please enclose a stamped, self-addressed postcard or envelope.

FMCSA will consider all comments and material received during the comment period and may change the proposed rule based on your comment.

B. Viewing Comments and Documents

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

C. Privacy Act

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

II. Legal Basis for the Rulemaking

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

On July 5, 1994, Congress recodified title 49 of the United States Code (U.S.C.) [Pub. L. 103-272, 108 Stat. 475 (the 1994 Recodification Act)]. Among other things, the 1994 Recodification Act corrected an ambiguity in CMVSA § 12009(a)(9). The wording of the statute did not make clear who had the obligation to report the CDL holders' out-of-State violations: The State or the driver. The 1994 Recodification Act added language making it explicit that States must report an out-of-State CDL holder's traffic conviction to the licensing State within 10 days of the conviction (108 Stat. 1024, 49 U.S.C. 31311(a)(9)). However, Congress did not repeal the requirement that individual CDL holders report the same information within 30 days of conviction.

The Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L. 106-159, 113 Stat. 1748] amended numerous provisions of title 49 of the U.S.C., related to the licensing and sanctioning of CMV drivers required to hold a CDL and directed the Secretary to amend regulations to correct specific weaknesses in the CDL program. One such provision directed the Secretary to develop a uniform system for the State-to-State electronic transmission of the out-of-State CDL holders' traffic conviction information. FMCSA subsequently issued regulations implementing MCSIA and other statutory requirements, including CMVSA § 12009(a)(9). Those regulations included 49 CFR 384.209, which requires States to report out-of-State CDL holders' traffic convictions to their licensing States as a minimum requirement of maintaining a certified CDL program (67 FR 49742, July 31, 2002).

The FMCSA Administrator has been delegated authority under 49 CFR 1.73(e)(1) to carry out the CMVSA functions vested in the Secretary.

III. Background

Presidential Executive Order (E.O.) 13563, issued January 18, 2011, “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011), prompted DOT to publish a notice in the Federal Register (76 FR 8940, February 16, 2011). This notice requested comments on a plan for reviewing existing rules, as well as identification of existing rules that DOT should review because they may be outmoded, ineffective, insufficient, or excessively burdensome. DOT placed all retrospective regulatory review comments, including a transcript of a March 14, 2011, public meeting, in docket DOT-OST-2011-0025. DOT received comments from 102 members of the public, with many providing multiple suggestions.

In connection with this initiative, a commenter identified as appropriate for review the requirements of 49 CFR 383.31(a) and 384.209, which provide for both individual CDL holders and States with certified CDL programs to report the same information about CDL holders' out-of-State convictions. FMCSA agreed with this suggestion. Although States are not required to participate in FMCSA's CDL certification program, all 50 States and the District of Columbia currently maintain certified programs, due in part to the financial incentives described above. In practice, this means that compliance with both §§ 383.31(a) and 384.209 has resulted in a reporting redundancy.

Both individual CDL holders and States have previously informed FMCSA that they believe this redundancy creates an unnecessary burden. Many States have reported to FMCSA that they do not have systems in place to process the information that comes from individuals and that they prefer to receive the information through official State-to-State communications, which are more efficient and secure. Currently, all States but one use the telecommunications network associated with the Commercial Driver's License Information System (CDLIS), a clearinghouse and repository administered by the American Association of Motor Vehicle Administrators (AAMVA), to transmit this information electronically. The remaining State transmits the information via mail. Therefore individual communications from CDL holders are redundant and inefficient.

IV. Discussion of Proposed Rule

This rule proposes to reduce the burden on individuals and States by harmonizing the requirements of §§ 383.31 and 384.209. FMCSA reads the statutory provisions authorizing these regulations, 49 U.S.C. 31303(a) and 31311(a)(9), as two elements of the CDL program Congress originally established in CMVSA, as opposed to separate or independent requirements. Reading the statutory provisions together as a part of an integrated regulatory scheme, the Agency believes that Congress intended for States to obtain accurate and timely information about their CDL holders' out-of-State traffic convictions so States are able to impose the appropriate sanctions for disqualifying offenses. The Agency does not believe that redundant reporting adds any special value to the CDL regulatory scheme. Rather, FMCSA believes that Congress created the statutory redundancy because State participation in the CDL program is voluntary, and as a result, it saw the need to create a method of reporting in the event that a State does not maintain a certified CDL program. That said, there currently exists a reporting redundancy because all 51 eligible jurisdictions have certified CDL programs and therefore must report a CDL holder's out-of-State traffic convictions (49 CFR 384.209).

To reduce this redundancy, FMCSA proposes to amend § 383.31 to provide that if the State in which a CDL holder is convicted for a traffic control violation has an FMCSA-certified CDL program, the Agency will consider the CDL holder to be in compliance with § 383.31(a) because the State where the conviction occurred will report the violation to the CDL holder's State of licensure. FMCSA believes that this change would effectuate Congress's intent that States have the requisite information to remove unsafe and unqualified drivers from the highways, while minimizing inefficiencies and reducing an unnecessary administrative burden on both individual CDL holders and States.

V. Regulatory Analyses

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

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

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) requires Federal agencies to consider the effects of the regulatory action on small business and other small entities and to minimize any significant economic impact. The term “small entities” comprises small businesses and not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000 ^[2] .

Accordingly, DOT policy requires an analysis of the impact of all regulations on small entities, and mandates that agencies strive to lessen any adverse effects on these businesses. Under the Regulatory Flexibility Act, as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, 110 Stat. 857), the proposed rule is not expected to have a significant economic impact on a substantial number of small entities. Consequently, I certify the proposed action would not have a significant economic impact on a substantial number of small entities.

Assistance for Small Entities

In accordance with section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, FMCSA wants to assist small entities in understanding this proposed rule so that they can better evaluate its effects on themselves and participate in the rulemaking initiative. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please consult the FMCSA point of contact, Robert Redmond, listed in the FOR FURTHER INFORMATION CONTACT section of this proposed rule.

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

Unfunded Mandates Reform Act

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

E.O. 13132 (Federalism)

A rule has implications for Federalism under Section 1(a) of Executive Order 13132 if it has “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.” FMCSA has determined that this proposal would not have substantial direct costs on or for States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation.

E.O. 13175 (Indian Tribal Governments)

This proposed rule does not have tribal implications under E.O. 13175, Consultation and Coordination with Indian Tribal Governments, because it would not have a substantial direct effect on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Paperwork Reduction Act

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

National Environmental Policy Act and Clean Air Act

FMCSA analyzed this notice of proposed rulemaking for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action is categorically excluded from further analysis and documentation in an environmental assessment or environmental impact statement under FMCSA Order 5610.1(69 FR 9680, March 1, 2004), Appendix 2, paragraph (s)(2). The Categorical Exclusion (CE) in paragraph (s)(2) covers requirements for drivers to notify their States of licensure of certain convictions. The proposal in this rule is covered by this CE and does not have any effect on the quality of the environment. The Categorical Exclusion determination is available for inspection or copying in the Regulations.gov Web site listed under ADDRESSES.

FMCSA also analyzed this rule under the Clean Air Act, as amended (CAA), section 176(c) (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not affect direct or indirect emissions of criteria pollutants.

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

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

E.O. 13045 (Protection of Children)

E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks (62 FR 19885, Apr. 23, 1997), requires agencies issuing “economically significant” rules, if the regulation also concerns an environmental health or safety risk that an agency has reason to believe may disproportionately affect children, to include an evaluation of the regulation's environmental health and safety effects on children. As discussed previously, this proposed rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, FMCSA does not anticipate that this regulatory action could in any respect present an environmental or safety risk that could disproportionately affect children.

E.O. 12988 (Civil Justice Reform)

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

E.O. 12630 (Taking of Private Property)

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

National Technology Transfer and Advancement Act (Technical Standards)

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

Privacy Impact Assessment

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

List of Subjects in 49 CFR Part 383

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

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

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

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

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

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

§ 383.31

Notification of convictions for driver violations.

(a) Except as provided in paragraph (d) of this section, each person who operates a commercial motor vehicle, who has a commercial driver's license issued by a State or jurisdiction, and who is convicted of violating, in any type of motor vehicle, a State or local law relating to motor vehicle traffic control (other than a parking violation) in a State or jurisdiction other than the one which issued his/her license, shall notify an official designated by the State or jurisdiction which issued such license, of such conviction. The notification must be made within 30 days after the date that the person has been convicted.

* * * * *

(d) A person is considered to be in compliance with the requirements of paragraph (a) of this section if the State or jurisdiction that issued the citation resulting in a conviction is in substantial compliance with 49 CFR part 384, subpart B, and has not been de-certified in accordance with 49 CFR 384.405.

Issued on: July 27, 2012.

William Bronrott,

Deputy Administrator.

Footnotes

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

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

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