Fees for the Unified Carrier Registration Plan and Agreement |
|---|
|
Cathy F. Gautreaux
Federal Motor Carrier Safety Administration
5 January 2018
[Federal Register Volume 83, Number 4 (Friday, January 5, 2018)]
[Rules and Regulations]
[Pages 605-613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-28509]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 367
[Docket No. FMCSA-2017-0118]
RIN 2126-AC03
Fees for the Unified Carrier Registration Plan and Agreement
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This rule establishes reductions in the annual registration
fees collected from motor carriers, motor private carriers of property,
brokers, freight forwarders, and leasing companies for the Unified
Carrier Registration (UCR) Plan and Agreement for the registration
years 2018, 2019 and subsequent years. For the 2018 registration year,
the fees will be reduced below the current level by approximately 9.10%
to ensure that fee revenues do not exceed the statutory maximum, and to
account for the excess funds held in the depository. For the 2019
registration year and subsequent years, the fees will be reduced below
the current level by approximately 4.55% to ensure the fee revenues in
that and future years do not exceed the statutory maximum.
DATES: This final rule is effective January 5, 2018.
FOR FURTHER INFORMATION CONTACT: Mr. Gerald Folsom, Office of
Registration and Safety Information, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001 or
by telephone at 202-385-2405.
SUPPLEMENTARY INFORMATION:
This Final Rule is organized as follows:
I. Rulemaking Documents
A. Availability of Rulemaking Documents
B. Privacy Act
II. Abbreviations and Acronyms
III. Executive Summary
A. Purpose and Summary of the Major Provisions
B. Benefits and Costs
IV. Legal Basis for the Rulemaking
V. Statutory Requirements for UCR Fees
A. Legislative History
B. Fee Requirements
VI. Background
Recommendation From the UCR Plan
VII. Discussion of the Comments
A. Small Business in Transportation Coalition
B. Revenue Entitlement for the State of Texas
C. Change Design of Fee Structure
D. Other Concerns
VIII. International Impacts
IX. Section-by-Section Analysis
X. 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. E.O. 13771 Reducing Regulation and Controlling Costs
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. E.O. 12988 (Civil Justice Reform)
I. E.O. 13045 (Protection of Children)
J. E.O. 12630 (Taking of Private Property)
K. Privacy Impact Assessment
L. E.O. 12372 (Intergovernmental Review)
M. E.O. 13211 (Energy Supply, Distribution, or Use)
N. E.O. 13175 (Indian Tribal Governments)
O. National Technology Transfer and Advancement Act (Technical
Standards)
P. Environment (National Environmental Policy Act, Clean Air
Act, Environmental Justice)
I. Rulemaking Documents
A. Availability of Rulemaking Documents
For access to docket FMCSA-2017-0118 to read background documents,
go to https://www.regulations.gov at any time, or to Docket Services at
U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue
SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through
Friday, except Federal holidays.
B. Privacy Act
In accordance with 5 U.S.C. 553(c), the U.S. Department of
Transportation (DOT) solicits comments from the public to better inform
its rulemaking process. DOT posts any comments, without edit, including
any personal information the commenter provides, to
www.regulations.gov, as described in the system of records notice (DOT/
ALL-14 FDMS), which can be reviewed at https://www.transportation.gov/privacy.
II. Abbreviations and Acronyms
The following is a list of abbreviations used in this document
Board Unified Carrier Registration Board of Directors
CAA Clean Air Act
CE Categorical Exclusion
FMCSA Federal Motor Carrier Safety Administration
OMB Office of Management and Budget
OOIDA Owner-Operator Independent Drivers Association
PRA Paperwork Reduction Act
RFA Regulatory Flexibility Act
SBA Small Business Administration
SBREFA Small Business Regulatory Enforcement Fairness Act
SBTC Small Business in Transportation Coalition
SSRS Single State Registration System
Texas DMV Texas Department of Motor Vehicles
UCR Unified Carrier Registration
UCR Agreement Unified Carrier Registration Agreement
UCR Plan Unified Carrier Registration Plan.
III. Executive Summary
A. Purpose and Summary of the Major Provisions
The UCR Plan and the 41 States participating in the UCR Agreement
establish and collect fees from motor carriers, motor private carriers
of
[[Page 606]]
property, brokers, freight forwarders, and leasing companies. The UCR
Plan and Agreement are administered by a 15-member board of directors
(UCR Board); 14 appointed from the participating States and the
industry, plus the Deputy Administrator of FMCSA. Revenues collected
are allocated to the participating States and the UCR Plan. The statute
sets a statutory maximum amount that the UCR Plan may collect. If
annual revenues will exceed the statutory maximum allowed, then the UCR
Plan must request adjustments to the fees. 49 U.S.C. 14504a(f)(1)(E).
Also, any excess funds held by the UCR Plan after payments are made to
the States and for administrative costs are retained in the UCR
depository and subsequent fees charged are reduced as required by 49
U.S.C. 14504a(h)(4). Adjustments in the fees are requested by the UCR
Plan and approved by FMCSA. These two provisions are the reasons for
the two-stage adjustment adopted in this final rule. The final rule
provides for a reduction for at least the next two registration years
to the annual registration fees established for the Unified Carrier
Registration (UCR) Agreement.
The UCR Plan and the participating States collect registration fees
for each registration year, which is the same period as the calendar
year. Generally, collection begins on October 1st of the previous year,
and continues until December 31st of the year following the
registration year. For example, collection for the 2016 registration
year began on October 1, 2015, and will end on December 31, 2017.
Currently the UCR Plan estimates that by December 31, 2017, total
revenues will exceed the statutory maximum for the 2016 registration
year by $5.13 million, or approximately 4.55%. This is the first time
that revenues collected will exceed the statutory maximum. Therefore,
in March 2017, the UCR Board requested that FMCSA adjust the fees in a
two-stage process. For the 2018 registration year, with collection
beginning on October 1, 2017 and ending December 31, 2019, the fees
would be reduced below the current level by approximately 9.10% to
ensure that fee revenues do not exceed the statutory maximum, and to
reduce the excess funds held in the depository. For the 2019
registration year, with collection beginning on October 1, 2018 and
ending December 31, 2020, the fees would be reduced below the current
level by approximately 4.55% to ensure the fee revenues in that and
future years do not exceed the statutory maximum.
B. Benefits and Costs
The changes imposed by this final rule reduce the fees paid by
motor carriers, motor private carriers of property, brokers, freight
forwarders, and leasing companies to the participating States. Fees are
considered by the Office of Management and Budget (OMB) Circular A-4,
Regulatory Analysis, as transfer payments, not costs. Transfer payments
are payments from one group to another that do not affect total
resources available to society. Therefore, transfers are not considered
in the monetization of societal costs and benefits of rulemakings.
The UCR Plan's formal recommendation requested the Secretary
(delegated to FMCSA) to set annual fees beginning in the registration
year 2018, as required by 49 U.S.C. 14504a(d)(7). FMCSA issued a notice
of proposed rulemaking proposing to reduce the fees paid by motor
carriers, motor private carriers of property, brokers, freight
forwarders, and leasing companies based on an analysis of current
collections and past trends. The Agency reviewed the UCR Plan's formal
recommendation prior to issuing the NPRM and concluded that the UCR
Plan's projection of the total revenues received for registration year
2016 may have been understated. 49 U.S.C. 14504a(d)(7). This
understatement would result in slightly higher fees for certain
brackets. FMCSA conducted its own analysis, adjusted the methodology
for projecting collections through the remainder of 2017, and updated
the fees accordingly. The total amount targeted for collection by the
UCR Plan will not change as a result of this rule, but the fees paid,
or transfers, per affected entity will be slightly reduced from the UCR
Plan's original formal recommendation.
IV. Legal Basis for the Rulemaking
This rule adjusts the annual registration fees for the UCR
Agreement established by 49 U.S.C. 14504a. The requested fee
adjustments are required by 49 U.S.C. 14504a because, for the
registration year 2016, the total revenues collected are expected to
exceed the total revenue entitlements of $107.78 million distributed to
the 41 participating States plus the $5 million established for the
administrative costs associated with the UCR Plan and Agreement. The
requested adjustments have been submitted by the UCR Plan in accordance
with 49 U.S.C. 14504a(f)(1)(E)(ii), which requires the Board to request
an adjustment by the Secretary when the annual revenues exceed the
maximum allowed. In addition, 49 U.S.C. 14504a(h)(4) states that any
excess funds held by the UCR Plan in its depository, after payments to
the States and for administrative costs, shall be retained ``and the
fees charged . . . shall be reduced by the Secretary accordingly.''
The Secretary also has broad rulemaking authority in 49 U.S.C.
13301(a) to carry out 49 U.S.C. 14504a, which is part of 49 U.S.C.
subtitle IV, part B. Authority to administer these statutory provisions
has been delegated to the FMCSA Administrator by 49 CFR 1.87(a)(2) and
(7).
The APA also allows agencies to make rules effective immediately
with good cause, instead of requiring publication 30 days prior to the
effective date. 5 U.S.C. 553(d)(3). FMCSA finds there is good cause for
this rule to be effective immediately so that the UCR Plan and the
participating States may begin collection of fees immediately for the
registration year that will begin on January 1, 2018. The immediate
commencement of fee collection will avoid further delay in distributing
revenues to the participating States.
V. Statutory Requirements for the UCR Fees
A. Legislative History
The Unified Carrier Registration Plan is ``the organization . . .
responsible for developing, implementing, and administering the unified
carrier registration agreement.'' 49 U.S.C. 14504a(a)(9). The UCR
Agreement developed by the UCR Plan is the ``interstate agreement . . .
governing the collection and distribution of registration and financial
responsibility information provided and fees paid by motor carriers,
motor private carriers, brokers, freight forwarders, and leasing
companies . . . .'' 49 U.S.C. 14504a(a)(8).
The legislative history of 49 U.S.C. 14504a indicates that the
purpose of the UCR Plan and Agreement is both to replace the Single
State Registration System (SSRS) for registration of interstate motor
carrier entities with the States and to ``ensure that States don't lose
current revenues derived from SSRS'' (S. Rep. 109-120, at 2 (2005)).
The statute provides for a 15-member Board of Directors for the UCR
Plan to be appointed by the Secretary of Transportation. The statute
specifies that the UCR Board should consist of one individual (either
the FMCSA Deputy Administrator or another Presidential appointee) from
the Department of Transportation; four directors from among the chief
[[Page 607]]
administrative officers of the State agencies responsible for
administering the UCR Agreement (one from each of the four FMCSA
service areas); five directors from among the professional staffs of
State agencies responsible for administering the UCR Agreement, to be
nominated by the National Conference of State Transportation
Specialists; and five directors from the motor carrier industry, of
whom at least one must be from a national trade association
representing the general motor carrier of property industry and one
from a motor carrier that falls within the smallest fleet fee bracket.
49 U.S.C. 14504a(d)(1)(B).
The UCR Plan and the participating States are authorized by 49
U.S.C. 14504a(f) to establish and collect fees from motor carriers,
motor private carriers of property, brokers, freight forwarders, and
leasing companies. The current annual fees charged are set out in 49
CFR 367.30. These fees were adopted by FMCSA in 2010 after a rulemaking
proceeding that considered the substantial increase in fees over the
fees initially established in 2007. Compare Fees for the Unified
Registration Plan and Agreement, 75 FR 21993 (Apr. 27, 2010) (``2010
Final Rule'') with Fees for Unified Registration Plan and Agreement, 72
FR 48585 (Aug. 24, 2007) (``2007 Final Rule'').
For carriers and freight forwarders, the fees vary according to the
size of the vehicle fleets, as required by 49 U.S.C. 14504a(f). The
fees collected are allocated to the States and the UCR Plan in
accordance with 49 U.S.C. 14504a(h). Participating States submit a plan
demonstrating that an amount equivalent to the revenues received are
used for motor carrier safety programs, enforcement or the
administration of the UCR Plan and Agreement. 49 U.S.C.
14504a(e)(1)(B).
B. Fee Requirements
The statute specifies that fees are to be based upon the
recommendation of the UCR Board, 49 U.S.C. 14504a(d)(7)(A). In
recommending the level of fees to be assessed in any agreement year,
and in setting the fee level, both the Board and the Agency shall
consider the following factors:
Administrative costs associated with the UCR Plan and
Agreement;
Whether the revenues generated in the previous year and
any surplus or shortage from that or prior years enable the
participating States to achieve the revenue levels set by the Board;
and
Provisions governing fees in 49 U.S.C. 14504a(f)(1).
The Secretary, if asked by the Board, may also adjust the fees
within a reasonable range on an annual basis if the revenues derived
from the fees are either insufficient to provide the participating
States with the revenues they are entitled to receive or exceed those
revenues (49 U.S.C. 14504a(f)(1)(E)).
Overall, the fees assessed under the UCR Agreement must produce the
level of revenue established by statute. Section 14504a(g) establishes
the revenue entitlements for States that choose to participate in the
UCR Plan. That section provides that a State, participating in SSRS in
the registration year prior to the enactment of the Unified Carrier
Registration Act of 2005 is entitled to receive revenues under the UCR
Agreement equivalent to the revenues it received in the year before
that enactment. Participating States that also collected intrastate
registration fees from interstate motor carrier entities (whether or
not they participated in SSRS) are also entitled to receive revenues of
this type under the UCR Agreement, in an amount equivalent to the
amount received in the previous registration year. The statute also
requires that States that did not participate in SSRS previously, but
that choose to participate in the UCR Plan, may receive revenues not to
exceed $500,000 per year. The Board calculates the amount of revenue
that each participating State is entitled to under the UCR Agreement
which is then approved by the Secretary.
FMCSA's responsibilities under 49 U.S.C. 14504a in setting fees for
the UCR Plan and Agreement are guided by the primacy the statute places
on the need both to set and to adjust the fees so they ``provide the
revenues to which the States are entitled.'' The statute links the
requirement that the fees be adjusted ``within a reasonable range'' by
both the UCR Plan and FMCSA to the provision of sufficient revenues to
meet the entitlements of the participating States (49 U.S.C.
14504a(f)(1)(E); see also 49 U.S.C. 14504a(d)(7)(A)(ii)).
Additionally, section 14504a(h)(4) requires FMCSA to reduce the
fees for all motor carrier entities in the year following any year in
which the depository retains any funds in excess of the amount
necessary to satisfy the revenue entitlements of the participating
States and the UCR Plan's administrative costs.
VI. Background
Recommendation From the UCR Plan
On March 14, 2017, the Board voted unanimously to submit a
recommendation to the Secretary for a reduction of registration fees
collected by the UCR Plan for 2018, with an adjustment in fees in 2019
and subsequent years. The recommendation was submitted to the Secretary
on March 22, 2017, and a copy has been placed in the docket.\1\ The
requested fee adjustments are required by 49 U.S.C. 14504a because, for
the registration year 2016, the total revenues collected have, for the
first time, exceeded the total revenue entitlements of $107.78 million
distributed to the 41 participating States, plus the $5 million
established for ``the administrative costs associated with the unified
carrier registration plan and agreement.'' 49 U.S.C.
14504a((d)(7)(A)(i)). The maximum revenue entitlements for each of the
41 participating States, totaling $107.78 million and already
established in accordance with 49 U.S.C. 14504a(g), are set out in the
table attached to the March 22, 2017 recommendation. These revenue
entitlements for the States are the same as those that were approved in
the 2010 final rule (75 FR at 22008-9 and Table 5) that have continued
in effect for each of the eight registration years from 2010 to 2017,
inclusive.
---------------------------------------------------------------------------
\1\ The UCR recommendation submitted March 22, 2017 including
the letter request from the Board and all related tables is located
in docket FMCSA-2017-0118 at: www.regulations.gov.
---------------------------------------------------------------------------
As indicated in the analysis attached to the March 22, 2017 letter,
as of the end of February 2017, the UCR Plan had already collected
$4.15 million more than the statutory maximum of $112.78 million for
2016. The UCR Plan estimates that by the end of 2017, total revenues
will exceed the statutory maximum, for 2016, by $5.13 million, or
approximately 4.55%. The excess revenues collected will be held in a
depository maintained by the Plan as required by 49 U.S.C.
14504a(h)(4).
Because of the collection of excess revenue, the UCR Plan requested
adjustments to the fees in accordance with 49 U.S.C.
14504a(f)(1)(E)(ii), which requires the Board to request an adjustment
when the annual revenues exceed the maximum allowed. In addition, 49
U.S.C. 14504a(h)(4) states that any excess funds held by the UCR Plan
in its depository, after payments to the States and for administrative
costs, shall be retained ``and the fees charged . . . shall be reduced
by the Secretary accordingly.'' These two provisions are distinct, and
are the basis for the two-stage adjustment in the recommendation.
The requested adjustments would occur in two stages; an initial
reduction below the current level by approximately 9.10% for 2018 to
account for the excess revenues already
[[Page 608]]
collected in 2016, followed by a reduction below the current level by
approximately 4.55% for 2019 and subsequent years to keep future
revenues below the statutory maximum. The adjusted fees recommended for
each bracket for 2018 and 2019 are shown in the analysis attached to
the March 22 letter. The UCR Plan requested that the reduction for the
2018 registration year be adopted not later than August 31, 2017, to
enable the participating States and the UCR Plan to reflect the new
fees when fee collection for the 2018 registration year that began on
October 1, 2017.
VII. Discussion of the Comments
FMCSA received 7 comments on the NPRM. Five commenters disagreed
with some aspect or another of the NPRM, including the Texas Department
of Motor Vehicles (Texas DMV), Owner-Operator Independent Drivers
Association (OOIDA), Small Business in Transportation Coalition (SBTC)
and two anonymous commenters. Two additional anonymous commenters
agreed with the NPRM favoring the fee reduction. The major comments
included a request to have the NPRM withdrawn, as well as a
recommendation to have the UCR Board submit a new recommendation to
implement the fee reduction with a new 2019 fee schedule and a request
for assurance that the State of Texas will be able to collect all of
the revenues to which it is entitled. Also comments addressed
recommendations for changing the current design of the fee structure.
Additional concerns included the absence of consistent enforcement of
penalties, and the difficulty for small businesses to realize benefits
from the mandated fees paid due to the existing structure and
administration of the program.
A. Small Business in Transportation Coalition
Comments
The Small Business in Transportation Coalition (SBTC) contended
that the NPRM published September 21, 2017, is unlawful and should be
withdrawn. It contends that while the UCR Plan notified the FMCSA of
its recommendation for a reduction in the fees on March 22, 2017, the
Agency failed to set the new fees within the 90-day period specified in
the statute.
As a result of the lack of action within 90 days, SBTC asserts that
on September 14, 2017, the Board held an ``improperly noticed secret
meeting'' that changed the date for commencement of the registration
and payment of fees from October 1, 2017, to November 1, 2017. SBTC
claims that this action by the UCR Plan thereby shortens the period for
carriers to comply with the UCR requirement, even though the affected
registrants would then be paying a reduced fee.
After the close of the comment period, SBTC and a broker, 12
Percent Logistics, Inc., brought a civil action in the United States
District Court for the District of Columbia (Civil Action No 1:17-cv-
2000) in which they sought injunctive relief to set aside the UCR
Plan's postponement of the date for commencement of registration and
fee payment. On October 18, the court denied the request to set aside
the postponement of the registration period but ordered the UCR Board
and the operator of its on-line registration system (the Indiana
Department of Revenue) to post the draft minutes of a September 14,
2017, meeting of the UCR Board on their respective websites and to make
an announcement of these postings at the Board's October 26, 2017,
meeting. The draft minutes of the Board's September 14, 2017 meeting
were posted on websites www.ucrplan.org and www.ucr.in.gov/ucrHome.html
on October 20, 2017 and October 24, 2017, respectively. The Board
announced the availability of the draft minutes on these websites at
its October 26, 2017 meeting.
FMCSA Response
SBTC cites no authority for its contention that FMCSA and the
Secretary no longer have the authority to set new fees for 2018 because
the statutory deadline for such action of 90 days in 49 U.S.C.
14504a(d)(7) has not been met. SBTC's contention that FMCSA ``has
missed its lawful opportunity'' to set the fees based on the UCR Plan's
March 22 recommendation is legally incorrect.
SBTC cannot point to any explicit statement in the provisions of 49
U.S.C. 14504a that bars action by FMCSA when the 90-day period is not
met, because there is none. In addition, there are important public
rights at stake that would be affected if FMCSA lost its power to act
on the UCR Plan's recommendation, as contended by SBTC. The fee
reduction recommended by the UCR Plan, proposed for implementation in
the NPRM and now adopted in this final rule, is necessary to comply
with two important provisions in the statute that require compliance
with the statutory maximum amount of revenues to be collected by the
UCR Plan and the participating States. 49 U.S.C. 14504a(f)(1)(E)(ii)
and (h)(4). Instead of allowing SBTC's members and the rest of the
motor carrier industry to benefit as soon as possible from the
reduction in fees based on excess revenues that the UCR Plan has
already recognized were collected for registration year 2016, SBTC's
request would have the harmful effect of delaying the benefits of the
reduction until 2019.
FMCSA and the Secretary have not lost the power to take action to
implement the reduction in fees for 2018 and later years because the
Agency did not complete such action within 90 days. SBTC's request for
withdrawal of this rulemaking is therefore denied.
B. Revenue Entitlement for the State of Texas
Comments
The Texas Department of Motor Vehicles requested that FMCSA ``take
the necessary steps to ensure that the state of Texas receives the full
amount of UCR revenues to which Texas is entitled under 49 U.S.C.
14504a(g)(1).'' Texas DMV stated that after the State's move from the
SSRS to the UCR Plan and Agreement, it had not received the amount of
funds from the UCR Plan and Agreement to which it believes it is
entitled. Since 2007, under the revenue entitlement calculations
submitted by the UCR Plan to the Secretary and FMCSA, the revenue
entitlement for Texas has been set at $2,718,628.06. 72 FR at 48588 and
Table 1 (2007 Final Rule) and 75 FR at 22008-9 and Table 5 (2010 Final
Rule). Texas DMV now claims that the State's revenue entitlement for
every year since 2007 should have been set at $5,765,819.93,
representing a difference of $3,047,191.87 for each registration year.
In total, Texas DMV claims that the State did not receive revenues of
$33,519,110.57 for the years 2007 to 2017, inclusive.
Texas DMV now asks that the Agency approve a revised annual revenue
entitlement for Texas of $5,765,819.93, starting with the year 2018,
and approve the ``shortage'' amount of $33,519,110.57 for the years
2007-2017. Most significantly, for the purpose of this rulemaking,
Texas DMV asks the Agency to revise the current fees established in 49
CFR part 367 ``as necessary to ensure enough UCR fees are collected to
cover the full amount to which Texas is entitled for years 2007 through
2017 and beyond.''
FMCSA Response
The actions by the Agency that Texas DMV requests would not only
require declining to implement the reduction in fees requested by the
UCR Plan, but
[[Page 609]]
taking two additional steps: (1) Revising the approved revenue
entitlement for Texas; and (2) increasing the fees by an uncertain but
clearly substantial amount, not only to provide revenues for the new
entitlement, but also to cover eleven years of a claimed ``shortage.''
FMCSA does not have authority under the provisions of 49 U.S.C. 14504a
to take either of these additional actions. Both the approval of a
revised revenue entitlement for Texas and an adjustment of the fees to
cover both Texas' claimed revised entitlement and the ``shortage''
would require that a recommendation be made to the Secretary by the
Board. Because no such request has been made for either action, FMCSA
is without authority to take the action requested by Texas. The fees
are based on the only set of revenue entitlements submitted by the UCR
Plan to the Secretary, which were approved in the 2010 final rule and
which includes a revenue entitlement of $2,718,628.06 for Texas.
The statute has provisions in 49 U.S.C. 14504a(g)(1) to (3)
governing how the revenue entitlement for each participating State
should be determined. Texas DMV asserts that the Texas revenue
entitlement should be determined under paragraph (g)(1), based on the
revenues Texas received during the calendar year 2004 under SSRS. But
the Texas DMV does not explain how or why its revenue entitlement under
this provision should be $5,765,819.93 for each year under the UCR
Agreement, instead of the $2,718,628.06 that has been in effect since
2007. It also does not explain why it has waited more than 11 years to
assert that it is entitled to a larger revenue entitlement.
Even if Texas DMV is correct that the larger amount is appropriate
under the statute, it has failed to submit its claim to the Board. The
statute provides that the amount of revenues generated under the UCR
Agreement to which a State is entitled shall be calculated by the Board
and approved by the Secretary. 49 U.S.C. 14504a(g)(4). A revised
calculation of the Texas revenue entitlement, which shows that it
complies with the statutory requirements in section 14504a(g)(1), has
not been submitted to the Board for its review and confirmation, and it
has not been submitted by the Board to FMCSA for approval. FMCSA is
without authority to consider or approve a revised revenue entitlement
for Texas unless and until a revised calculation is submitted by the
UCR Plan's board of directors.
The statute has similar provisions governing adjustments in the
fees. The Board may ask FMCSA to adjust the fees within a reasonable
range on an annual basis if the revenues derived from the fees are
insufficient to provide the revenues to which the States are entitled.
49 U.S.C. 14504a(f)(1)(E)(i). No request has been made by the Board to
adjust the fees in order to provide any revenues to satisfy the claim
by Texas for a larger annual revenue entitlement or to provide funds to
make up the ``shortage'' Texas has supposedly incurred for 11 years.
The only request before the Agency from the Board is the reduction in
fees submitted on March 22, 2017 after a unanimous vote of the UCR
Board. FMCSA is without authority to consider or approve any adjustment
in the fees (other than the one submitted on March 22) unless and until
the Board makes a recommendation that would reflect the effects of the
revised revenue entitlement claimed by Texas.
C. Change Design of Fee Structure
Comments
OOIDA stated that single-truck operators or small fleet carriers
represented approximately 95% of the motor carrier industry and that
the current fee structure is burdensome and costly to its members due
to the limited resources they have in comparison to larger competitors.
OOIDA stated that the inequalities are particularly noted between and
within the arbitrary payment brackets in effect and proposed that a
standard flat fee per vehicle should be considered to reduce inequity
amongst small, medium, and large fleets. An anonymous commenter felt
that the current structure appears punitive to companies who are on the
lower end of the tiered brackets that are currently in effect. The
commenter cited the following examples in the current fee structure in
which by going from 100 power units to 101 power units or even 1000
power units to 1001 power units companies would incur enormous
percentage fee increases for a single power unit. The commenter
recommended that the fee should be charged on a per unit basis. The per
unit fee recommendation was also supported by another anonymous
commenter.
FMCSA Response
Three commenters suggested changing the UCR fees to a ``per-unit''
(i.e. on a per vehicle) basis. FMCSA has not evaluated the merits of
this suggestion because it is not an alternative available to the
Agency. The statute requires that the Board set the fee structure based
on 4 to 6 brackets depending on the size of the fleet. 49 U.S.C.
14504a(f)(1)(C). Implementing the commenters' ``per unit'' suggestion
would require a statutory amendment. Unless and until that occurs,
neither the Board nor FMCSA has authority to change the current fee
structure using brackets.
D. Other Concerns
Comments
OOIDA expressed other specific concerns regarding the proposed rule
including the fact that smaller carriers lack the resources to assist
payment processing and submission of paperwork. OOIDA also expressed
concerns regarding the lack of consistency among states in their use of
the fees for enforcement or administration purposes. Overall, OOIDA
felt that the existing organization and administration of the UCR
program makes it difficult for small-business truckers and owner-
operators to recognize any benefits from the mandated fees they are
expected to pay. OOIDA recommended a federal audit of the UCR plan to
review how states are actually spending UCR revenues.
FMCSA Response
OOIDA's concerns described above are outside of the scope of this
rulemaking.
VIII. International Impacts
Motor carriers and other entities involved in interstate and
foreign transportation in the United States that do not have a
principal office in the United States, are nonetheless subject to the
fees for the UCR Plan. They are required to designate a participating
State as a base State and pay the appropriate fees to that State. 49
U.S.C. 14504a(a)(2)(B)(ii) and (f)(4).
IX. Section-by-Section Analysis
Under this final rule, the provisions of 49 CFR 367.30 are revised
to apply to registration years 2010 to 2017, inclusive. A new 49 CFR
367.40 establishes the reduced fees for registration year 2018. A
second new section, 49 CFR 367.50, establishes fees for 2019, which
will remain in effect in subsequent registration years unless and until
revised in the future.
X. 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 determined that this final rule is not a significant
regulatory action
[[Page 610]]
under section 3(f) of Executive Order (E.O.) 12866 (58 FR 51735,
October 4, 1993), Regulatory Planning and Review, as supplemented by
E.O. 13563 (76 FR 3821, January 21, 2011), Improving Regulation and
Regulatory Review, and does not require an assessment of potential
costs and benefits under section 6(a)(3) of that Order. Accordingly,
the Office of Management and Budget (OMB) has not reviewed it under
that Order. It is also not significant within the meaning of DOT
regulatory policies and procedures (DOT Order 2100.5 dated May 22,
1980; (44 FR 11034), February 26, 1979).
The changes imposed by this final rule adjust the registration fees
paid by motor carriers, motor private carriers of property, brokers,
freight forwarders, and leasing companies to the UCR Plan and the
participating States. Fees are considered by OMB Circular A-4,
Regulatory Analysis, as transfer payments, not costs. Transfer payments
are payments from one group to another that do not affect total
resources available to society. By definition, transfers are not
considered in the monetization of societal costs and benefits of
rulemakings.
This rule establishes adjustments in the annual registration fees
for the UCR Plan and Agreement. The total amount targeted for
collection by the UCR Plan will not change as a result of this rule,
but the fees paid, or transfers, per affected entity will be reduced.
The primary entities affected by this rule are the participating
States, motor carriers, motor private carriers of property, brokers,
freight forwarders, and leasing companies. Because the total amount
collected will continue to be the statutory maximum, the participating
States will not be impacted by this rule. The primary impact of this
rule will be a reduction in fees paid by individual motor carriers,
motor private carriers of property, brokers, freight forwarders, and
leasing companies. The reduction will range from approximately $7 to
$6,700 per entity in the first year, and from approximately $3 to
$3,400 per entity in subsequent years, depending on the number of
vehicles owned and/or operated by the affected entities.
B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs
E.O. 13771 requires that for ``every one new [E.O. 13771 regulatory
action] issued, at least two prior regulations be identified for
elimination, and that the cost of planned regulations be prudently
managed and controlled through a budgeting process.'' \2\
Implementation guidance for E.O. 13771 issued by the Office of
Management and Budget (OMB) on April 5, 2017, defines two different
types of E.O. 13771 actions: An E.O. 13771 deregulatory action, and an
E.O. 13771 regulatory action.\3\
---------------------------------------------------------------------------
\2\ Executive Office of the President. Executive Order 13771 of
January 30, 2017. Reducing Regulation and Controlling Regulatory
Costs. 82 FR 9339-9341. February 3, 2017.
\3\ Executive Office of the President. Office of Management and
Budget. Guidance Implementing Executive Order 13771, Titled
``Reducing Regulation and Controlling Regulatory Costs.'' Memorandum
M-17-21. April 5, 2017.
---------------------------------------------------------------------------
An E.O. 13771 deregulatory action is defined as ``an action that
has been finalized and has total costs less than zero.'' As this is a
zero total cost rulemaking and consequently does not have total costs
less than zero, it therefore is not an E.O. 13771 deregulatory action.
An E.O. 13771 regulatory action is defined as:
(i) a significant action as defined in Section 3(f) of E.O. 12866
that has been finalized, and that imposes total costs greater than
zero; or
(ii) a significant guidance document (e.g., significant
interpretive guidance) reviewed by Office of Information and Regulatory
Affairs under the procedures of E.O. 12866 that has been finalized and
that imposes total costs greater than zero.
The Agency action, in this case a rulemaking, must meet both the
significance and the total cost criteria to be considered an E.O. 13771
regulatory action. This rulemaking is not a significant regulatory
action as defined in Section 3(f) of E.O. 12866, and therefore does not
meet the significance criterion for being an E.O. 13771 regulatory
action. Consequently, this rulemaking is not an E.O. 13771 regulatory
action and no further action under E.O. 13771 is required.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (RFA) (5 U.S.C. 601 et
seq.), as amended by the Small Business Regulatory Enforcement Fairness
Act of 1996 (SBREFA) (Pub. L. 104-121, 110 Stat. 857), requires Federal
agencies to consider the impact of their regulatory proposals on small
entities, analyze effective alternatives that minimize small entity
impacts, and make their analyses available for public comment. The term
``small entities'' means 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 under 50,000.\4\ 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
entities. Section 605 of the RFA allows an agency to certify a rule, in
lieu of preparing an analysis, if the rulemaking is not expected to
have a significant economic impact on a substantial number of small
entities.
---------------------------------------------------------------------------
\4\ Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Available
at: https://www.sba.gov/advocacy/regulatory-flexibility-act
(accessed February 13, 2017).
---------------------------------------------------------------------------
This rule will directly affect the participating States, motor
carriers, motor private carriers of property, brokers, freight
forwarders, and leasing companies. Under the standards of the RFA, as
amended by the SBREFA, the participating States are not small entities.
States are not considered small entities because they do not meet the
definition of a small entity in Section 601 of the RFA. Specifically,
States are not considered small governmental jurisdictions under
Section 601(5) of the RFA, both because State government is not
included among the various levels of government listed in Section
601(5), and because, even if this were the case, no State nor the
District of Columbia has a population of less than 50,000, which is the
criterion by which a governmental jurisdiction is considered small
under Section 601(5) of the RFA.
The Small Business Administration (SBA) size standard for a small
entity (13 CFR 121.201) differs by industry code. The entities affected
by this rule fall into many different industry codes. In order to
determine if this rule would have an impact on a significant number of
small entities, FMCSA examined the 2012 Economic Census \5\ data for
two different industries; truck transportation (Subsector 484) and
transit and ground transportation (Subsector 485). According to the
2012 Economic Census, approximately 99 percent of truck transportation
firms, and approximately 97 percent of transit and ground
transportation firms, had annual revenue less than the SBA revenue
threshold of $27.5 million and $15 million, respectively. Therefore,
FMCSA has determined that this rule will impact a substantial number of
small entities.
---------------------------------------------------------------------------
\5\ U.S. Census Bureau, 2012 US Economic Census. Available at:
https://factfinder.census.gov/faces/tableservices/jsf/pages/productview.xhtml?pid=ECN_2012_US_48SSSZ4&prodType=table (accessed
April 27th, 2017).
---------------------------------------------------------------------------
However, FMCSA has determined that this rule will not have a
significant impact on the affected entities. The
[[Page 611]]
effect of this rule will be to reduce the registration fee motor
carriers, motor private carriers of property, brokers, freight
forwarders, and leasing companies are currently required to pay. The
reduction will range from approximately $7 to $6,700 per entity, in the
first year, and from approximately $3 to $3,400 per entity in
subsequent years, depending on the number of vehicles owned and/or
operated by the affected entities. FMCSA asserts that the reduction in
fees will be entirely beneficial to these entities, and will not have a
significant impact on the affected small entities. Accordingly, I
hereby certify that this rule will not have a significant economic
impact on a substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the SBREFA, FMCSA wants to
assist small entities in understanding this final rule so that they can
better evaluate its effects on themselves and participate in the
rulemaking initiative. If the final 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, Gerald Folsom, 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). 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. In particular, 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 $156 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2015 levels) or more in any one year. Though this final rule will not
result in any such expenditure, the Agency discusses the effects of
this rule elsewhere in this preamble.
F. Paperwork Reduction Act
Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et
seq.), Federal agencies must obtain approval from the OMB for each
collection of information they conduct, sponsor, or require through
regulations. FMCSA determined that no new information collection
requirements are associated with this final rule, nor are there any
revisions to existing, approved collections of information. Therefore,
the PRA does not apply to 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 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, imposes substantial direct unreimbursed
compliance costs on any State, or diminishes the power of any State to
enforce its own laws. As detailed above, the UCR Board of Directors
includes substantial State representation. The States have already had
opportunity for input through their representatives. Accordingly, this
rulemaking does not have Federalism implications warranting the
application of E.O. 13132.
H. 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.
I. 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 final rule is not economically
significant. Therefore, no analysis of the impacts on children is
required. In any event, the Agency does not anticipate that this
regulatory action could in any respect present an environmental or
safety risk that could disproportionately affect children.
J. 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.
K. 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 personally identifiable information.
L. 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.
M. E.O. 13211 (Energy Supply, Distribution, or Use)
FMCSA has analyzed this final rule under E.O. 13211, Actions
Concerning Regulations That Significantly Affect Energy Supply,
Distribution, or Use. The Agency has determined that this rule is not a
``significant energy action'' under that order because it is not a
``significant regulatory action'' likely to have a significant adverse
effect on the supply, distribution, or use of energy. Therefore, it
does not require a Statement of Energy Effects under E.O. 13211.
N. 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.
[[Page 612]]
O. 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 (e.g., specifications of materials, performance, design, or
operation; test methods; sampling procedures; and related management
systems practices) are standards that are developed or adopted by
voluntary consensus standards bodies. This rule does not use technical
standards. Therefore, FMCSA did not consider the use of voluntary
consensus standards.
P. Environment (National Environmental Policy Act, Clean Air Act,
Environmental Justice)
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, paragraph 6.(h). The Categorical Exclusion (CE) in
paragraph 6.(h) covers regulations and actions taken pursuant to the
regulations implementing procedures to collect fees that will be
charged for motor carrier registrations. The content in this rule is
covered by this CE and the final action does not have any effect on the
quality of the environment. The CE determination is available for
inspection or copying in the Regulations.gov.
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.
Under E.O. 12898, Federal Actions to Address Environmental Justice
in Minority Populations and Low-Income Populations, each Federal agency
must identify and address, as appropriate, ``disproportionately high
and adverse human health or environmental effects of its programs,
policies, and activities on minority populations and low-income
populations'' in the United States, its possessions, and territories.
FMCSA evaluated the environmental justice effects of this final rule in
accordance with the E.O. 12898, and has determined that no
environmental justice issue is associated with this final rule, nor is
there any collective environmental impact that would result from its
promulgation.
List of Subjects in 49 CFR Part 367
Insurance, Intergovernmental relations, Motor carriers, Surety
bonds.
For the reasons discussed in the preamble, the Federal Motor
Carrier Safety Administration is amending title 49 CFR chapter III,
part 367 as follows:
PART 367--STANDARDS FOR REGISTRATION WITH STATES
0
1. The authority citation for part 367 continues to read as follows:
Authority: 49 U.S.C. 13301, 14504a; and 49 CFR 1.87.
0
2. Revise Sec. 367.30 to read as follows:
Sec. 367.30 Fees under the Unified Carrier Registration Plan and
Agreement for registration years beginning in 2010 and ending in 2017.
Table 1 to Sec. 367.30--Fees Under the Unified Carrier Registration Plan and Agreement for Each Registration
Year 2010-2017
----------------------------------------------------------------------------------------------------------------
Number of commercial
motor vehicles owned or Fee per entity for exempt
operated by exempt or or non-exempt motor
Bracket non-exempt motor carrier, motor private Fee per entity for broker
carrier, motor private carrier, or freight or leasing company
carrier, or freight forwarder
forwarder
----------------------------------------------------------------------------------------------------------------
B1.......................... 0-2..................... $76 $76
B2.......................... 3-5..................... 227 ...........................
B3.......................... 6-20.................... 452 ...........................
B4.......................... 21-100.................. 1,576 ...........................
B5.......................... 101-1,000............... 7,511 ...........................
B6.......................... 1,001 and above......... 73,346 ...........................
----------------------------------------------------------------------------------------------------------------
0
3. Add new Sec. Sec. 367.40 and 367.50 to subpart B to read as
follows:
Sec. 367.40 Fees under the Unified Carrier Registration Plan and
Agreement for registration year 2018.
Table 1 to Sec. 367.40--Fees Under the Unified Carrier Registration Plan and Agreement for Registration Year
2018
----------------------------------------------------------------------------------------------------------------
Number of commercial
motor vehicles owned or Fee per entity for exempt
operated by exempt or or non-exempt motor
Bracket non-exempt motor carrier, motor private Fee per entity for broker
carrier, motor private carrier, or freight or leasing company
carrier, or freight forwarder
forwarder
----------------------------------------------------------------------------------------------------------------
B1.......................... 0-2..................... $69 $69
B2.......................... 3-5..................... 206 ...........................
B3.......................... 6-20.................... 410 ...........................
B4.......................... 21-100.................. 1,431 ...........................
B5.......................... 101-1,000............... 6,820 ...........................
B6.......................... 1,001 and above......... 66,597 ...........................
----------------------------------------------------------------------------------------------------------------
[[Page 613]]
Sec. 367.50 Fees under the Unified Carrier Registration Plan and
Agreement for registration years beginning in 2019.
Table 1 to Sec. 367.50--Fees Under the Unified Carrier Registration Plan and Agreement for Registration Year
2019 and Each Subsequent Registration Year Thereafter
----------------------------------------------------------------------------------------------------------------
Number of commercial
motor vehicles owned or Fee per entity for exempt
operated by exempt or or non-exempt motor
Bracket non-exempt motor carrier, motor private Fee per entity for broker
carrier, motor private carrier, or freight or leasing company
carrier, or freight forwarder
forwarder
----------------------------------------------------------------------------------------------------------------
B1.......................... 0-2..................... $73 $73
B2.......................... 3-5..................... 217 ...........................
B3.......................... 6-20.................... 431 ...........................
B4.......................... 21-100.................. 1,503 ...........................
B5.......................... 101-1,000............... 7,165 ...........................
B6.......................... 1,001 and above......... 69,971 ...........................
----------------------------------------------------------------------------------------------------------------
Issued under authority delegated in 49 CFR 1.87 on: December 29,
2017.
Cathy F. Gautreaux,
Deputy Administrator.
[FR Doc. 2017-28509 Filed 1-2-18; 4:15 pm]
BILLING CODE 4910-EX-P