Self Reporting of Out-of-State Convictions |
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William Bronrott
Federal Motor Carrier Safety Administration
August 2, 2012
[Federal Register Volume 77, Number 149 (Thursday, August 2, 2012)]
[Proposed Rules]
[Pages 46010-46014]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-18902]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383
[Docket No. FMCSA-2012-0172]
RIN 2126-AB43
Self Reporting of Out-of-State Convictions
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice of proposed rulemaking; request for comments.
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SUMMARY: Current regulations require both commercial driver's license
(CDL) holders and States with certified CDL programs to report a CDL
holder's out-of-State traffic conviction to the driver's State of
licensure. FMCSA proposes to reduce the impact of this reporting
redundancy by providing that if a State in which the conviction occurs
has a certified CDL program in substantial compliance with FMCSA's
regulations, then an individual CDL holder convicted in that State is
considered to be in compliance with his/her out-of-State traffic
conviction reporting obligations because the State where the conviction
occurred will report the violation to the CDL holder's State of
licensure. This proposed change would reduce a regulatory burden on
both individuals and States.
DATES: Comments must be received on or before October 1, 2012.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2012-0172 using any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the online instructions for submitting comments.
[[Page 46011]]
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE., West Building, Ground
Floor, Room W12-140, Washington, DC 20590-0001.
Hand Delivery or Courier: West Building, Ground Floor,
Room W12-140, 1200 New Jersey Avenue SE., between 9 a.m. and 5 p.m.
E.T., Monday through Friday, except Federal holidays.
Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section below for instructions on
submitting comments. Comments received after the comment closing date
will be included in the docket, and we will consider late comments to
the extent practicable. FMCSA may, however, issue a final rule at any
time after the close of the comment period.
FOR FURTHER INFORMATION CONTACT: Robert Redmond, Office of Enforcement
and Program Delivery, Federal Motor Carrier Safety Administration, 1200
New Jersey Avenue SE., Washington, DC 20590-0001, by telephone at (202)
366-5014 or via email at robert.redmond@dot.gov. Office hours are from
9 a.m. to 5 p.m. ET, Monday through Friday, except Federal holidays. If
you have questions on viewing or submitting material to the docket,
contact Renee V. Wright, Program Manager, Docket Operations, telephone
(202) 366-9826.
SUPPLEMENTARY INFORMATION:
Table of Contents for Preamble
I. Public Participation and Request for Comments
A. Submitting Comments
B. Viewing Comments and Documents
C. Privacy Act
II. Legal Basis for the Rulemaking
III. Background
IV. Discussion of Proposed Rule
V. Regulatory Analyses
I. Public Participation and Request for Comments
FMCSA encourages you to participate in this rulemaking by
submitting comments and related materials. All comments received will
be posted without change to http://www.regulations.gov and will include
any personal information you provide.
A. Submitting Comments
If you submit a comment, please include the docket number for this
rulemaking (FMCSA-2012-0172), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comment and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an email address, or a phone number in the body of your
document so that FMCSA can contact you if there are questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov and
click on the ``Submit a Comment'' box, which will then become
highlighted in blue. In the ``Document Type'' drop-down menu, select
``Proposed Rules,'' insert ``FMCSA-2012-0172'' in the ``Keyword'' box,
and click ``Search.'' When the new screen appears, click on ``Submit a
Comment'' in the ``Actions'' column. If you submit your comment by mail
or hand delivery, submit it in an unbound format, no larger than 8\1/2\
by 11 inches, suitable for copying and electronic filing. If you submit
your comment by mail and would like to know that it reached the
facility, please enclose a stamped, self-addressed postcard or
envelope.
FMCSA will consider all comments and material received during the
comment period and may change the proposed rule based on your comment.
B. Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble,
available in the docket, go to http://www.regulations.gov and click on
the ``Read Comments'' box in the upper right-hand side of the screen.
Then in the ``Keyword'' box, insert ``FMCSA-2012-0172'' and click
``Search.'' Next, click the ``Open Docket Folder'' in the ``Actions''
column. Finally, in the ``Title'' column, click on the document you
would like to review. If you do not have access to the Internet, you
may view the docket online by visiting the Docket Management Facility
in Room W12-140 on the ground floor of the Department of Transportation
West Building, 1200 New Jersey Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m. ET, Monday through Friday, except Federal
holidays.
C. Privacy Act
Anyone is able to search the electronic form of all comments
received into any of our dockets by the name of the individual
submitting the comment (or signing the comment, if submitted on behalf
of an association, business, labor union, etc.). You may review the
Department of Transportation's (DOT) Privacy Act Statement for the
Federal Docket Management System published in the Federal Register on
January 17, 2008 (73 FR 3316), or you may visit http://edocket.access.gpo.gov/2008/pdf/E8-785.pdf.
II. Legal Basis for the Rulemaking
Congress enacted the Commercial Motor Vehicle Safety Act of 1986
(CMVSA) [Pub. L. 99-570, Title XII, 100 Stat. 3207-170, 49 U.S.C.
chapter 313] to improve highway safety by ensuring that drivers of
large trucks and buses are qualified to operate those vehicles and to
remove unsafe and unqualified drivers from the highways. To achieve
these goals, the CMVSA established the Commercial Driver's License
(CDL) Program and required States to ensure that drivers convicted of
certain serious traffic violations are prohibited from operating
commercial motor vehicles (CMVs). Although State participation in the
CDL program is voluntary, the CMVSA created incentives by conditioning
certain Federal highway and grant funding on States maintaining a
certified CDL program (CMVSA Sec. Sec. 12010, 12011, codified at 49
U.S.C. 31313, 31314). One of the CMVSA's CDL program requirements was
that States report CDL holders' out-of-State traffic convictions to
their licensing States within 10 days of the conviction (CMVSA Sec.
12009(a)(9)). The CMVSA also established a requirement for CDL holders
to report these same out-of-State traffic convictions to their
licensing States within 30 days of the conviction (CMVSA Sec.
12003(a)(1), codified at 49 U.S.C. 31303(a)). Congress authorized the
Secretary to issue regulations to implement these provisions (CMVSA
Sec. 12018(a), codified at 49 U.S.C. 31317). The Federal Highway
Administration (FHWA), FMCSA's predecessor, subsequently issued
regulations, including 49 CFR 383.31(a), which implemented the
requirement that CDL holders report out-of-State traffic convictions to
their licensing States (52 FR 20574, June 1, 1987). FHWA did not issue
regulations implementing the States' reporting requirement at that
time.
On July 5, 1994, Congress recodified title 49 of the United States
Code (U.S.C.) [Pub. L. 103-272, 108 Stat. 475 (the 1994 Recodification
Act)]. Among other things, the 1994 Recodification Act corrected an
ambiguity in CMVSA Sec. 12009(a)(9). The wording of the statute did
not make clear who had the obligation to report the CDL holders' out-
of-State violations: The State or the driver. The 1994 Recodification
Act added language making it explicit that States must report an out-
of-State CDL holder's traffic conviction to the licensing State within
10 days of the
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conviction (108 Stat. 1024, 49 U.S.C. 31311(a)(9)). However, Congress
did not repeal the requirement that individual CDL holders report the
same information within 30 days of conviction.
The Motor Carrier Safety Improvement Act of 1999 (MCSIA) [Pub. L.
106-159, 113 Stat. 1748] amended numerous provisions of title 49 of the
U.S.C., related to the licensing and sanctioning of CMV drivers
required to hold a CDL and directed the Secretary to amend regulations
to correct specific weaknesses in the CDL program. One such provision
directed the Secretary to develop a uniform system for the State-to-
State electronic transmission of the out-of-State CDL holders' traffic
conviction information. FMCSA subsequently issued regulations
implementing MCSIA and other statutory requirements, including CMVSA
Sec. 12009(a)(9). Those regulations included 49 CFR 384.209, which
requires States to report out-of-State CDL holders' traffic convictions
to their licensing States as a minimum requirement of maintaining a
certified CDL program (67 FR 49742, July 31, 2002).
The FMCSA Administrator has been delegated authority under 49 CFR
1.73(e)(1) to carry out the CMVSA functions vested in the Secretary.
III. Background
Presidential Executive Order (E.O.) 13563, issued January 18, 2011,
``Improving Regulation and Regulatory Review'' (76 FR 3821, January 21,
2011), prompted DOT to publish a notice in the Federal Register (76 FR
8940, February 16, 2011). This notice requested comments on a plan for
reviewing existing rules, as well as identification of existing rules
that DOT should review because they may be outmoded, ineffective,
insufficient, or excessively burdensome. DOT placed all retrospective
regulatory review comments, including a transcript of a March 14, 2011,
public meeting, in docket DOT-OST-2011-0025. DOT received comments from
102 members of the public, with many providing multiple suggestions.
In connection with this initiative, a commenter identified as
appropriate for review the requirements of 49 CFR 383.31(a) and
384.209, which provide for both individual CDL holders and States with
certified CDL programs to report the same information about CDL
holders' out-of-State convictions. FMCSA agreed with this suggestion.
Although States are not required to participate in FMCSA's CDL
certification program, all 50 States and the District of Columbia
currently maintain certified programs, due in part to the financial
incentives described above. In practice, this means that compliance
with both Sec. Sec. 383.31(a) and 384.209 has resulted in a reporting
redundancy.
Both individual CDL holders and States have previously informed
FMCSA that they believe this redundancy creates an unnecessary burden.
Many States have reported to FMCSA that they do not have systems in
place to process the information that comes from individuals and that
they prefer to receive the information through official State-to-State
communications, which are more efficient and secure. Currently, all
States but one use the telecommunications network associated with the
Commercial Driver's License Information System (CDLIS), a clearinghouse
and repository administered by the American Association of Motor
Vehicle Administrators (AAMVA), to transmit this information
electronically. The remaining State transmits the information via mail.
Therefore individual communications from CDL holders are redundant and
inefficient.
IV. Discussion of Proposed Rule
This rule proposes to reduce the burden on individuals and States
by harmonizing the requirements of Sec. Sec. 383.31 and 384.209. FMCSA
reads the statutory provisions authorizing these regulations, 49 U.S.C.
31303(a) and 31311(a)(9), as two elements of the CDL program Congress
originally established in CMVSA, as opposed to separate or independent
requirements. Reading the statutory provisions together as a part of an
integrated regulatory scheme, the Agency believes that Congress
intended for States to obtain accurate and timely information about
their CDL holders' out-of-State traffic convictions so States are able
to impose the appropriate sanctions for disqualifying offenses. The
Agency does not believe that redundant reporting adds any special value
to the CDL regulatory scheme. Rather, FMCSA believes that Congress
created the statutory redundancy because State participation in the CDL
program is voluntary, and as a result, it saw the need to create a
method of reporting in the event that a State does not maintain a
certified CDL program. That said, there currently exists a reporting
redundancy because all 51 eligible jurisdictions have certified CDL
programs and therefore must report a CDL holder's out-of-State traffic
convictions (49 CFR 384.209).
To reduce this redundancy, FMCSA proposes to amend Sec. 383.31 to
provide that if the State in which a CDL holder is convicted for a
traffic control violation has an FMCSA-certified CDL program, the
Agency will consider the CDL holder to be in compliance with Sec.
383.31(a) because the State where the conviction occurred will report
the violation to the CDL holder's State of licensure. FMCSA believes
that this change would effectuate Congress's intent that States have
the requisite information to remove unsafe and unqualified drivers from
the highways, while minimizing inefficiencies and reducing an
unnecessary administrative burden on both individual CDL holders and
States.
V. Regulatory Analyses
E.O. 12866 (Regulatory Planning and Review and DOT Regulatory Policies
and Procedures as Supplemented by E.O. 13563)
FMCSA has determined that this proposed rule is a not significant
regulatory action within the meaning of Executive Order (E.O.) 12866,
as supplemented by E.O. 13563 (76 FR 3821, January 21, 2011), or within
the meaning of DOT regulatory policies and procedures because the
proposed rule is not expected to generate substantial congressional or
public interest. The estimated cost of the proposed rule is not
expected to exceed the $143.1 million \1\ annual threshold for economic
significance; therefore, any costs associated with the rule are
expected to be minimal. The proposed rule would reduce a regulatory
burden on current reporting requirements affecting individuals and
States and thus should result in decreased economic burden. This rule
would not require a change in the business practice of already
compliant states currently using CDLIS, the clearinghouse and
repository system. The Agency expects this rule to generate cost
savings in the form of reduced paperwork burdens.
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\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.
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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
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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\.
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\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.
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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.
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\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.
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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
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significant. Therefore, no analysis of the impacts on children is
required. In any event, FMCSA does not anticipate that this regulatory
action could in any respect present an environmental or safety risk
that could disproportionately affect children.
E.O. 12988 (Civil Justice Reform)
This action meets applicable standards in sections 3(a) and 3(b)(2)
of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate
ambiguity, and reduce burden.
E.O. 12630 (Taking of Private Property)
This proposed rule would not effect a taking of private property or
otherwise have taking implications under E.O. 12630, Governmental
Actions and Interference with Constitutionally Protected Property
Rights.
National Technology Transfer and Advancement Act (Technical Standards)
The National Technology Transfer and Advancement Act (15 U.S.C. 272
note) requires Federal agencies proposing to adopt Government technical
standards to consider whether voluntary consensus standards are
available. If the Agency chooses to adopt its own standards in place of
existing voluntary consensus standards, it must explain its decision in
a separate statement to OMB. This rule does not propose to adopt any
technical standards.
Privacy Impact Assessment
FMCSA conducted a privacy impact assessment of this rule as
required by section 522(a)(5) of the FY 2005 Omnibus Appropriations
Act, Public Law 108-447, 118 Stat. 3268 (Dec. 8, 2004) [set out as a
note to 5 U.S.C. 552a]. The assessment considers any impacts of the
rule on the privacy of information in an identifiable form and related
matters. FMCSA has determined this rule would have no privacy impacts.
List of Subjects in 49 CFR Part 383
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Incorporation by reference, Motor carriers.
In consideration of the foregoing, FMCSA proposes to amend 49 CFR
part 383 as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
1. The authority citation for part 383 continues to read as
follows:
Authority: 49 U.S.C. 521, 31136, 31301 et seq., and 31502;
secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1766, 1767; sec.
4140 of Pub. L. 109-59, 119 Stat. 1144, 1726; and 49 CFR 1.73.
2. Amend Sec. 383.31(a) by revising paragraph (a) and adding new
paragraph (d), to read as follows:
Sec. 383.31 Notification of convictions for driver violations.
(a) Except as provided in paragraph (d) of this section, each
person who operates a commercial motor vehicle, who has a commercial
driver's license issued by a State or jurisdiction, and who is
convicted of violating, in any type of motor vehicle, a State or local
law relating to motor vehicle traffic control (other than a parking
violation) in a State or jurisdiction other than the one which issued
his/her license, shall notify an official designated by the State or
jurisdiction which issued such license, of such conviction. The
notification must be made within 30 days after the date that the person
has been convicted.
* * * * *
(d) A person is considered to be in compliance with the
requirements of paragraph (a) of this section if the State or
jurisdiction that issued the citation resulting in a conviction is in
substantial compliance with 49 CFR part 384, subpart B, and has not
been de-certified in accordance with 49 CFR 384.405.
Issued on: July 27, 2012.
William Bronrott,
Deputy Administrator.
[FR Doc. 2012-18902 Filed 8-1-12; 8:45 am]
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