2013-09915. Self Reporting of Out-of-State Convictions

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Final rule.

SUMMARY:

FMCSA amends its commercial driver's license (CDL) rules to eliminate the requirement for drivers to notify the State licensing agency that issued their commercial learner's permit (CLP) or CDL of out-of-State traffic convictions when those convictions occur in States that have a certified CDL program in substantial compliance with FMCSA's rules. Current regulations require both 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. This final rule amends the CDL rules to eliminate this reporting redundancy for those cases in which the conviction occurs in a State that has a certified CDL program in substantial compliance with FMCSA's regulations. This change will reduce a regulatory burden on individual CLP and CDL holders and State driver licensing agencies. This rule is responsive to Executive Order (E.O.) 13563 “Improving Regulation and Regulatory Review,” issued January 18, 2011.

DATES:

The final rule is effective May 28, 2013.

ADDRESSES:

For access to the docket to read background documents, including those referenced in this document, or to read comments received, go to http://www.regulations.gov at any time and insert “FMCSA-2012-0172” in the “Keyword” box, and then click “Search.” You may also view the docket online by visiting the Docket Management Facility in Room W12-140, DOT Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., e.t., Monday through Friday, except Federal holidays.

Anyone is able to search the electronic form for 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 U.S. Department of Transportation's DOT complete Privacy Act Statement in the Federal Register published on December 29, 2010 (75 FR 82132), or you may visit http://www.gpo.gov/​fdsys/​pkg/​FR-2010-12-29/​pdf/​2010-32876.pdf.

FOR FURTHER INFORMATION CONTACT:

Robert Redmond, Office of Enforcement, 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. e.t., Monday through Friday, except Federal holidays. If you have questions on viewing material to the docket, contact Barbara J. Hairston, Acting Program Manager, Docket Operations, telephone [phone].

SUPPLEMENTARY INFORMATION:

Table of Contents for Preamble

Executive Summary

Legal Basis for Rulemaking

Background

Discussion of Comments

Section-by-Section Discussion of Regulatory Changes

Regulatory Analyses

Executive Summary

Purpose of the Rule and Summary of Major Provisions

This final rule amends the commercial driver's license (CDL) rules to eliminate the requirement for drivers to notify the State driver licensing agency (SDLA) that issued their commercial learner's permit (CLP) or CDL of out-of-State traffic convictions when those convictions occur in States that have a certified CDL program in substantial compliance with the Federal Motor Carrier Safety Administration's rules. The elimination of this reporting redundancy will reduce a regulatory burden on individual CLP and CDL holders and SDLAs.

This rule also responds to Executive Order (E.O.) 13563 “Improving Regulation and Regulatory Review,” issued January 18, 2011.

Costs and Benefits

The anticipated benefits of the rule will take the form of reduced paperwork burden hours and expenditures for the reporting of out-of-State traffic convictions. Neither the benefits nor the costs of eliminating this regulatory burden can be quantified at this time. States will continue to rely on State-to-State reporting, which is more accurate and secure than driver self-reporting.

Legal Basis for 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 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, CMVSA created incentives by conditioning certain Federal highway and grant funding on States maintaining a certified CDL program (CMVSA secs. 12010, 12011, codified at 49 U.S.C. 31313, 31314). One of the CMVSA's CDL program requirements was that States report CDL holders' out-of-State traffic convictions to their licensing States within 10 days of the conviction (CMVSA sec. 12009(a)(9) codified at 49 U.S.C. 31311). The CMVSA also established a requirement for CDL holders to report these same out-of-State traffic convictions to their licensing States within 30 days of the conviction (CMVSA sec. 12003(a)(1), codified at 49 U.S.C. 31303(a)). Congress authorized the Secretary to issue regulations to implement these provisions (CMVSA sec. 12018(a), codified at 49 U.S.C. 31317). The Federal Highway Administration (FHWA), FMCSA's predecessor, subsequently issued regulations, including 49 CFR 383.31(a), which implemented the requirement that CDL holders report out-of-State traffic convictions to their licensing States (52 FR 20574, June 1, 1987). FHWA did not issue regulations implementing the States' reporting requirement at that time.

On July 5, 1994, Congress recodified title 49 of the U.S.C. [Pub. L. 103-272, 108 Stat. 745 (the 1994 Recodification Act)]. Among other things, the 1994 Recodification Act clarifies who had the obligation to report 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 out-of-State CDL holders' traffic conviction information. FMCSA subsequently issued regulations implementing MCSIA and other statutory requirements, including CMVSA sec. 12009(a)(9). Those regulations included 49 CFR 384.209, which requires States to report out-of-State CDL holders' traffic convictions to their licensing States as a minimum requirement of maintaining a certified CDL program (67 FR 49742, July 31, 2002).

The FMCSA Administrator has been delegated authority under 49 CFR 1.87(e)(1) to carry out the CMVSA functions vested in the Secretary.

Background

This final rule arises as a result of Presidential Executive Order (E.O.) 13563, issued January 18, 2011, “Improving Regulation and Regulatory Review” (76 FR 3821, January 21, 2011), which prompted DOT to publish a notice in the Federal Register (76 FR 8940, February 16, 2011) requesting 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 were 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 below. Additionally States could be de-certified and lose their authority to issue CDLs. In practice, this means that compliance with both §§ 383.31(a) and 384.209 result in a reporting redundancy.

On August 2, 2012, FMCSA published a notice of proposed rulemaking in the Federal Register (77 FR 46010). FMCSA proposed to eliminate this redundant reporting practice 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 would be 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. FMCSA received six public comments and made changes to the proposed rule in response to these comments, which are detailed in part III, Discussion of Comments.

Discussion of Comments

FMCSA received six comments in response to the NPRM. The commenters included Advocates for Highway and Auto Safety (Advocates), Werner Enterprises (Werner), The National School Transportation Association (NSTA), Edison Electric Institute (EEI), State of New York Department of Motor Vehicles, and American Trucking Associations (ATA).

Overall, most commenters supported FMCSA's objective of eliminating a redundant reporting practice. Two commenters recommended back-up reporting provisions, should any State reporting a driver conviction suddenly become noncompliant with the CDL program. One commenter requested that the Agency provide documented proof of compliant CDL reporting programs prior to eliminating the driver reporting requirement. A commenter was concerned about general safety issues that could occur as a result of eliminating the driver reporting requirement. These comments are discussed in greater detail below.

Suggested Back-Up Reporting Provisions

Comments

The Agency received two comments regarding back-up reporting provisions. Werner was concerned that drivers would not know whether a State is in compliance with the conviction reporting requirement. Werner offered two options for letting the driver know if the State is in compliance: (1) Require the reporting State to provide the driver with a notice that it is in compliance with 49 CFR part 384, subpart B, and has not been de-certified in accordance with 49 CFR 384.405. This would let the driver know that there is no obligation to report the conviction as the reporting State will report it; or (2) add language to 49 CFR 383.31(d) to create a presumption that every State is in compliance.

ATA was also concerned drivers would not know whether a State is in compliance with conviction reporting requirements. ATA proposed modifying 49 CFR 384.307 to provide that FMCSA would publish a notice in the Federal Register to alert drivers that their self-reporting requirements under 49 CFR 383.31 had been reactivated if FMCSA determines that a State is not in substantial compliance with the regulations or intends to withdraw from the CDL program.

FMCSA Response

If a State is no longer in compliance with the conviction reporting requirements, FMCSA agrees that drivers should be given notice. At this time FMCSA believes a more effective alternative is to alert drivers that their self-reporting requirements under 49 CFR 383.31 have been reactivated through a Federal Register notice, as suggested by the ATA, and also to provide notification by way of the FMCSA Web site and other social media. The Agency however, believes the requirement should be incorporated into new § 384.409 under Subpart D of part 384, which addresses the consequences of State noncompliance. Therefore, the Agency has incorporated language in the final rule in new § 384.409 to implement this solution.

Provision of Documented Proof of Compliant CDL Reporting Programs

Comment

Advocates requested that FMCSA determine the effectiveness and timeliness of State CDL programs to capture out-of-State convictions and provide the public with documentation of their effectiveness. Until data can be presented that demonstrates that all States have adopted compliant CDL reporting programs and that the home States of commercial drivers are receiving out-of-State convictions and acting on that information when appropriate, Advocates maintained that the driver reporting requirement should not be eliminated.

FMCSA Response

States are required in 49 CFR 384.209 to report out-of-State convictions to the State of licensure within 10 days of the conviction. As a part of CDL program certification, FMCSA and the American Association of Motor Vehicle Administrators (AAMVA) monitor the timeliness and accuracy of conviction data being sent from the State of conviction to the State of licensure and generate a monthly report. If a State shows a continuing pattern of not being timely or sending inaccurate data, FMCSA and AAMVA work with the State to correct the deficiency.

States have been showing a steady improvement in the timeliness of reporting conviction data from the State of conviction to the State of licensure.

Safety Concerns

Comment

The NSTA was concerned about the delay between when the State of conviction notifies the State of licensure, the State of licensure notifies the employer, and appropriate action, including notification to the insurance company, is taken by the employer. If a driver is not required to report a conviction to his State of licensure, this delay would allow some drivers to continue to operate a school bus following a conviction.

FMCSA Response

Eliminating the requirement that the CDL holder report a conviction to the State of licensure does not eliminate the driver responsibility in 49 CFR 383.31(b) to report the conviction to his or her employer within 30 days of the conviction.

Section-by-Section Discussion of Regulatory Changes

Part 383 Commercial Driver's License Standards; Requirements and Penalties

Section 383.31. FMCSA adds an introductory phrase to paragraph (a) that clarifies that the addition of new paragraph (d) is the exception for this section. FMCSA adopts paragraph 383.31(d) as proposed, which provides that if the State in which a CLP or CDL holder is convicted for a traffic control violation has an FMCSA-certified CDL program, the Agency would consider the CLP or CDL holder to be in compliance with § 383.31(a).

Part 384 State Compliance With Commercial Driver's License Program

Section 384.409. FMCSA adds new § 384.409 to specify the means of notification to CLP and CDL holders when it determines that a State is not in substantial compliance, or when it issues a decertification order prohibiting a State from issuing commercial driver's licenses.

Regulatory Analyses

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

FMCSA has determined that this final rule is not a significant regulatory action within the meaning of Executive Order (E.O.) 12866 (Regulatory Planning and Review,” 58 FR 51735, October 4, 1993), as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), or within the meaning of DOT regulatory policies and procedures (DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979). Any costs associated with this rule are expected to be minimal, and, in any event, the estimated cost of the rule is not expected to exceed the $100 million annual threshold for economic significance.

The issuance of driver notifications is the only substantive difference in this final rule from the published NPRM (77 FR 46010, August 2, 2012). If a State is no longer in substantial compliance with the conviction reporting requirements of 49 CFR 384.209 or issues a decertification order prohibiting a State from issuing commercial drivers licenses, FMCSA will alert drivers that they must comply with the self-reporting requirements under 49 CFR 383.31 using a Federal Register notice, its Web site and social media. This notification requirement is applicable to FMCSA and as such will not impose additional costs to the 50 States and District of Columbia which currently maintain certified CDL programs, nor to individual CLP or CDL holders.

Regulatory Flexibility Act

The Regulatory Flexibility Act of 1980 (5 U.S.C. 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 business 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.^[1] 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 final rule is not expected to have a significant economic impact on a substantial number of small entities.

Consequently, I certify that this final rule 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 rule so that they can better evaluate its effects on them. If the rule affects 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 final 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).

Unfunded Mandates Reform Act of 1995

This final rule does 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 $141.3 million (which is the value of $100 million in 2010 after adjusting for inflation) or more in any single year.

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 will not have substantial direct effects on States, nor would it limit the policymaking discretion of States. Nothing in this document preempts any State law or regulation.

E.O. 12988 (Civil Justice Reform)

This final rule 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. 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. The Agency determined this rule is not economically significant. Therefore, no analysis of the impacts on children is required. In any event, the Agency does not believe that this regulatory action could create an environmental or safety risk that could disproportionately affect children.

E.O. 12630 (Taking of Private Property)

FMCSA reviewed this final rule in accordance with E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights, and has determined it will not effect a taking of private property or otherwise have taking implications.

Privacy Impact Assessment

Section 522 of title I of division H of the Consolidated Appropriations Act, 2005, enacted December 8, 2004 (Pub. L. 108-447, 118 Stat. 2809, 3268, 5 U.S.C. 552a note), requires the Agency to conduct a privacy impact assessment (PIA) of a regulation that will affect the privacy of individuals. This rule does not require the collection of any personally identifiable information.

The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies and any non-Federal agency which receives records contained in a system of records from a Federal agency for use in a matching program. FMCSA has determined this rule will not result in a new or revised Privacy Act System of Records for FMCSA.

E.O. 12372 (Intergovernmental Review)

The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities do not apply to this program.

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 anticipates this final rule would result in a paperwork burden reduction that the Agency is unable to quantify, at this time.

National Environmental Policy Act and Clean Air Act

FMCSA analyzed this rule 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, paragraphs (6)(s)(2), This categorical exclusion covers requirements for drivers to notify their States of licensure of certain convictions. This final rule is covered by this categorical exclusion and in any event does not have a significant 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 analyzed this rule under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency 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. Therefore, no Statement of Energy Effects is required.

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.

National Technology Transfer and Advancement Act (Technical Standards)

The National Technology Transfer and Advancement Act (15 U.S.C. 272 note) directs agencies to use voluntary consensus standards in their regulatory activities unless the agency provides Congress, through OMB, with an explanation of why using these standards would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., specifications of materials, performance, design, or operation; test methods; sampling procedures; and related management systems practices) that are developed or adopted by voluntary consensus standards bodies. This rule does not use technical standards. Therefore, we did not consider the use of voluntary consensus standards.

List of Subjects

49 CFR Part 383

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

49 CFR Part 384

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

For the reasons discussed in the preamble, FMCSA amends 49 CFR parts 383 and 384 as follows:

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

1. The authority citation for part 383 is revised 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. 1748, 1766, 1767; sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140 of Pub. L. 109-59, 119 Stat. 1144, 1746; and 49 CFR 1.87.

2. Amend § 383.31 by revising paragraph (a) and adding 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 learner's permit or 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 permit or license, shall notify an official designated by the State or jurisdiction which issued such permit or 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 conviction occurs in a State or jurisdiction that is in substantial compliance with 49 CFR 384.209 and has not been de-certified in accordance with 49 CFR 384.405.

PART 384—STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM

3. The authority citation for part 384 continues to read as follows:

Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103 and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767; and 49 CFR 1.87.

4. Amend subpart D by adding § 384.409 to read as follows:

§ 384.409

Notification of noncompliance.

If FMCSA determines that a State is not in substantial compliance with § 384.209, or if FMCSA issues a decertification order prohibiting a State from issuing commercial driver's licenses, FMCSA will notify commercial learner's permit and commercial driver's license holders of these actions by publication of a Federal Register notice. The notification will advise commercial learner's permit and commercial driver's license holders that they must comply with the self-reporting requirements of § 383.31(a) with respect to convictions obtained in that State until such time that FMCSA determines the State to be in substantial compliance.

Issued under the authority of delegation in 49 CFR 1.87 on: April 16, 2013.

Anne S. Ferro,

Administrator.

Footnotes

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