Qualification of Drivers; Employment Application |
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Raymond P Martinez
Federal Motor Carrier Safety Administration
8 March 2019
[Federal Register Volume 84, Number 46 (Friday, March 8, 2019)]
[Proposed Rules]
[Pages 8497-8501]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-04188]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 391
[Docket No. FMCSA-2018-0247]
RIN 2126-AC13
Qualification of Drivers; Employment Application
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM).
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SUMMARY: FMCSA is considering changes to the requirement to have
prospective drivers complete an employment application. FMCSA requests
public comment on the value of and need for this requirement. Comment
also is sought on ways the requirement for an employment application
could be changed to reduce the associated paperwork burdens for drivers
and motor carriers, including but not limited to the complete
elimination of the requirement.
DATES: Comments on this ANPRM must be received on or before May 7,
2019.
ADDRESSES: You may submit comments bearing the Federal Docket
Management System Docket ID (FMCSA-2018-0247) using any of the
following methods:
Federal eRulemaking Portal: Go to http://www.regulations.gov.
Follow the online instructions for submitting comments.
Mail: Docket Management Facility, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building Ground Floor,
Room W12-140, Washington, DC 20590.
Hand Delivery or Courier: U.S. Department of Transportation, 1200
New Jersey Avenue SE, West Building Ground Floor, Room W12-140,
Washington, DC 20590, between 9 a.m. and 5 p.m. ET, Monday through
Friday, except Federal holidays.
Fax: (202) 493-2251.
FOR FURTHER INFORMATION CONTACT: For information concerning this ANPRM,
contact Ms. Pearlie Robinson, Driver and Carrier Operations Division,
FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590, (202) 366-4325,
MCPSD@dot.gov. If you have questions on viewing or submitting material
to the docket, contact Docket Services at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
ANPRM (FMCSA-2018-0247), 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 comments and material online or
by fax, mail, or hand delivery, but please use only one of these
methods. 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 the Agency can contact you if it has questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov and
put the docket number (FMCSA-2018-0247) in the ``Keyword'' box, and
click ``Search.'' When the new screen appears, click on the ``Comment
Now!'' button and type your comment into the text box in the following
screen. Choose whether you are submitting your comment as an individual
or on behalf of a third party and then submit. If you submit your
comments by mail or hand delivery, submit them in an unbound format, no
larger than 8\1/2\ by 11 inches, suitable for copying and electronic
filing. If you submit comments by mail and would like to know that they
reached the facility, please enclose a stamped, self-addressed postcard
or envelope.
Confidential Business Information (CBI) is commercial or financial
information that is customarily not made available to the general
public by the submitter. Under the Freedom of Information Act (5 U.S.C.
552), CBI is eligible for protection from public disclosure. If you
have CBI that is relevant or responsive to this ANPRM, it is important
that you clearly designate the submitted comments as CBI. Accordingly,
please mark each page of your submission as ``confidential'' or
``CBI.'' Submissions designated as CBI and meeting the definition noted
above will not be placed in the public docket of this ANPRM.
Submissions containing CBI should be sent to Brian Dahlin, Chief,
Regulatory Evaluation Division, Federal Motor Carrier Safety
Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
Any commentary FMCSA receives that is not specifically designated as
CBI will be placed in the public docket for this rulemaking.
FMCSA will consider all comments and material received during the
comment period.
[[Page 8498]]
B. Viewing Comments and Documents
To view comments, as well as any documents mentioned in this ANPRM
as being available in the docket, go to http://www.regulations.gov and
insert the docket number (FMCSA-2018-0247) in the ``Keyword'' box and
click ``Search.'' Next, click the ``Open Docket Folder'' button and
choose the document listed to review. If you do not have access to the
internet, you may view the docket by visiting the Docket Management
Facility in Room W12-140 on the ground floor of the U.S. Department of
Transportation (DOT) West Building, 1200 New Jersey Avenue SE,
Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday,
except Federal holidays.
C. Privacy Act
DOT solicits comments from the public to better inform its
rulemaking process. DOT posts these 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/.
D. Advance Notice of Proposed Rulemaking
Under section 5202 of the Fixing America's Surface Transportation
(FAST) Act (Pub. L. 114-94, 129 Stat. 1312, 1534, Dec. 4, 2015), FMCSA
is required to publish an ANPRM or conduct a negotiated rulemaking if a
proposed rule is likely to lead to the promulgation of a major rule \1\
(49 U.S.C. 31136(g)(1)). If FMCSA's estimate of the burden hours
associated with the requirement to have prospective drivers complete an
employment application is correct, the possible proposal to change or
eliminate the requirement could lead to the promulgation of a major
rule. Using FMCSA's typical current wage rate for truck and bus drivers
of $38.24 per hour and for motor carrier administrative personnel of
$28.82 per hour, the burden hours associated with the requirement would
equate to approximately $180 million. Accordingly, the Agency is
publishing this ANPRM in accordance with the FAST Act.
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\1\ A ``major rule'' means any rule that the Administrator of
the Office of Information and Regulatory Affairs of the Office of
Management and Budget (OMB) finds has resulted in or is likely to
result in (a) an annual effect on the economy of $100 million or
more; (b) a major increase in costs or prices for consumers,
individual industries, Federal agencies, State agencies, local
government agencies, or geographic regions; or (c) significant
adverse effects on competition, employment, investment,
productivity, innovation, or the ability of United States-based
enterprises to compete with foreign-based enterprises in domestic
and export markets (5 U.S.C. 804(2)). The term ``major rule'' does
not include any rule promulgated under the Telecommunications Act of
1996 and the amendments made by that Act.
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II. Legal Basis
The possible proposal to amend FMCSA's regulations to change or
eliminate 49 CFR 391.21, which includes the requirement to have
prospective drivers complete an employment application, is based on the
authority of the Motor Carrier Act of 1935 (1935 Act) and the Motor
Carrier Act of 1984 (1984 Act), both as amended.
Section 204(a) of the 1935 Act (Pub. L. 74-255, 49 Stat. 543, 546,
Aug. 9, 1935), as codified at 49 U.S.C. 31502(b), authorizes the
Secretary of Transportation (Secretary) to ``prescribe requirements
for--(1) qualifications and maximum hours of service of employees of,
and safety of operation and equipment of, a motor carrier; and (2)
qualifications and maximum hours of service of employees of, and
standards of equipment of, a motor private carrier, when needed to
promote safety of operation.'' This ANPRM addresses the qualifications
of prospective motor carrier drivers, consistent with the safe
operation of commercial motor vehicles (CMV).
The 1984 Act provides concurrent authority to regulate drivers,
motor carriers, and vehicle equipment. Section 211(b) of the 1984 Act
(Pub. L. 98-554, 98 Stat. 2832, 2841, Oct. 30, 1984), codified at 49
U.S.C. 31133(a), grants the Secretary broad power, in carrying out
motor carrier safety statutes and regulations, to ``prescribe
recordkeeping and reporting requirements'' and to ``perform other acts
the Secretary considers appropriate'' (49 U.S.C. 31133(a)(8), (10)
respectively).
Section 206(a) of the 1984 Act (98 Stat. 2834), codified at 49
U.S.C. 31136(a), grants the Secretary broad authority to issue
regulations ``on commercial motor vehicle safety.'' The regulations
must ensure that ``commercial motor vehicles are . . . operated
safely'' (49 U.S.C. 31136(a)(1)). The remaining statutory factors and
requirements in section 31136(a), to the extent they are relevant, are
also satisfied here. In accordance with section 31136(a)(2), the
elimination of the requirement to have prospective drivers complete an
employment application would not impose any ``responsibilities . . . on
operators of commercial motor vehicles [that would] impair their
ability to operate the vehicles safely.'' This rule would not directly
address medical standards for drivers (section 31136(a)(3)) or possible
physical effects caused by driving CMVs (section 31136(a)(4)). FMCSA
does not anticipate that drivers would be coerced (section 31136(a)(5))
because of this rulemaking.
Finally, the Administrator of FMCSA is delegated authority under 49
CFR 1.87 to carry out the functions vested in the Secretary by 49
U.S.C. chapters 311 and 315 as they relate to CMV operators, programs,
and safety.
III. Background
On April 22, 1970, the Federal Highway Administration (FHWA), a
predecessor agency to FMCSA, added Sec. 391.21, Application for
employment, that requires every prospective driver to submit
information, such as the applicant's driving record, prior employers,
accident history, and driver's license status, on an employment
application furnished by the motor carrier. The prospective driver also
must furnish information concerning the nature and extent of experience
driving motor vehicles (35 FR 6461). That same rulemaking also added
the requirement in Sec. 391.11(b)(12) that an individual is qualified
to drive a motor vehicle only if the individual has completed and
furnished an employment application to the motor carrier (35 FR 6461).
Section 391.21 was amended in response to section 12003(c) of the
Commercial Motor Vehicle Safety Act of 1986 (Pub. L. 99-570, 100 Stat.
3207-170, 3207-171, Oct. 27, 1986), codified at 49 U.S.C. 31303(c).
Section 31303(c) provides that every individual who operates a CMV \2\
and applies for employment as a CMV operator must notify the employer
at the time of application of the individual's previous employment as a
CMV operator. The Secretary was directed to prescribe the period for
which notice of previous employment must be given. The statute
provides, however, that ``the period may not be less than the 10-year
period ending on the date of the application'' (49 U.S.C. 31303(c)(2)).
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\2\ For purposes of 49 U.S.C. 31303, a CMV is defined generally
as a vehicle used in commerce that is at or above 26,001 pounds
gross vehicle weight or weight rating, used to transport 16 or more
passengers (including the driver), or is used to transport
placardable hazardous materials (49 U.S.C. 31301(4)). With limited
exceptions, a driver of such a CMV is required to hold a commercial
driver's license (CDL). This definition of CMV is reflected in Sec.
383.5.
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Accordingly, a June 1, 1987, final rule added a new paragraph
(b)(11) to Sec. 391.21 (52 FR 20589). Paragraph (b)(11) requires that
drivers applying to operate a CMV, as defined by part 383, must provide
a list of the names and
[[Page 8499]]
addresses of the employers for which the applicant was an operator of a
CMV during the 7-year period preceding the 3 years of employment
history required by Sec. 391.21(b)(10), together with the dates of
employment and the reasons for leaving such employment. Therefore,
drivers applying to operate a CMV that requires a CDL must provide
their experience operating such CMVs during the prior 10 years. The
final rule also added Sec. 383.35, Notification of previous
employment, to the CDL standards. That section requires a prospective
driver to provide, and the employer to request, at the time of
application for employment the same information requested in Sec.
391.21(b)(11) regarding a driver's experience operating a CMV that
requires a CDL during the prior 10 years.
In 1997, as part of a review of the Federal Motor Carrier Safety
Regulations (FMCSRs), FHWA proposed to remove the requirement in Sec.
391.11(b) to complete and furnish an employment application as a driver
qualification standard (62 FR 3855, Jan. 27, 1997). FHWA noted that the
driver qualification standards in Sec. 391.11 ``are designed to
protect the safety of the motoring public by not permitting a person to
drive a CMV who lacks the essential abilities to perform his/her duties
safely'' (62 FR 3857). FHWA stated, however, that completing and
furnishing an employment application were not driver qualification
standards, but rather actions that enable motor carriers to evaluate
the competence of applicants for CMV driver positions. FHWA stated
further that the failure of a CMV driver to complete and furnish an
application to his or her employing motor carrier should not result in
the CMV driver being unqualified to drive. The proposal to remove an
employment application as a driver qualification standard in Sec.
391.11(b) was not intended to affect the responsibility of CMV drivers
to complete and furnish the motor carriers that employ them with
employment applications containing certain information as required by
Sec. 391.21 (see 62 FR 3858).
In its comments to the 1997 proposal, the American Trucking
Associations, Inc. (ATA) opposed removing the requirement in Sec.
391.11(b) that a CMV driver furnish the employing motor carrier with an
employment application. It stated that completion of an application for
employment is fundamental to the process of selecting safe CMV drivers
and was published as a trucking industry safety standard in 1939, 12
years before it was incorporated into the FMCSRs. ATA believed the
deletion of the driver qualification standard would prevent motor
carriers from gathering information to determine applicants'
qualifications in accordance with Sec. 391.21 (63 FR 33260, June 18,
1998).
FHWA reasoned in the June 18, 1998, final rule that a ``driver's
application for employment is not a `qualification' per se. The revised
heading of Sec. 391.11 as `General qualifications' clarifie[d] the
intent to include performance-oriented qualifications'' (63 FR 33260).
FHWA considered an application for employment simply a presentation of
a recordkeeping document, and removed the requirement for an employment
application as a qualification standard from Sec. 391.11(b) as
proposed. FHWA noted specifically that it was not revising or removing
Sec. 391.21 (63 FR 33260).
In 2004, FMCSA amended Sec. 391.21 in response to section 114 of
the Hazardous Materials Transportation Authorization Act of 1994 (Pub.
L. 103-311, 108 Stat. 1673, 1677, Aug. 26, 1994). Section 114 directed
the Secretary to amend Sec. 391.23, Investigations and inquiries, to
specify the minimum safety information to be investigated from previous
employers as part of performing the required safety background
investigations on driver applicants. Section 114 requires a motor
carrier, at minimum, to investigate a driver's accident record and
alcohol and controlled substances history from all employers the driver
worked for within the previous 3 years.
The March 30, 2004, Safety Performance History of New Drivers final
rule amended Sec. 391.21(b)(10) (69 FR 16719). Paragraph (b)(10)
required that a prospective driver must include on the employment
application a list of the names and addresses of the applicant's
employers during the 3 years preceding the date the application was
submitted, the dates employed, and the reason for leaving each
employer. Language was added to require information regarding whether
the applicant was subject to the FMCSRs while employed by each previous
employer, and whether the job was designated as a safety sensitive
function in any DOT regulated mode subject to alcohol and controlled
substances testing requirements.
In the same rulemaking, FMCSA also amended Sec. 391.21(d), which
provided that, before an application was submitted, the motor carrier
must inform the applicant that the information he or she provides in
accordance with paragraph (b)(10) may be used, and the applicant's
previous employers will be contacted, for the purpose of investigating
the applicant's safety performance history information as required by
Sec. 391.23. Language was added to require the prospective employer to
notify the driver in writing of his or her due process rights as
specified in Sec. 391.23(i) regarding information received as a result
of the investigations.
IV. The Need for Regulatory Action
On October 2, 2017, DOT published a Notification of Regulatory
Review and stated that it was reviewing its ``existing regulations and
other agency actions to evaluate their continued necessity, determine
whether they are crafted effectively to solve current problems, and
evaluate whether they potentially burden the development or use of
domestically produced energy resources'' (82 FR 45750). As part of
these reviews, DOT sought public comment on existing rules that are
good candidates for repeal, replacement, suspension, or modification.
In response, ATA identified a number of motor carrier operational
regulations it believed needed reform or elimination.\3\
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\3\ See Docket DOT-OST-2017-0069, Item 2758.
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With respect to Sec. 391.21, ATA recommended that paragraph
(b)(11) be eliminated. ATA's stated rationale was that, during the
hiring process, CDL drivers are required to include 10 years of
employment history on their applications. Motor carriers, however, are
only required to verify license, violation, accident, and drug testing
information from the applicant's previous employers going back 3 years
because the information is often not retrievable beyond 3 years. ATA
recommended that motor carriers that wish to verify employment status
beyond the required 3 years should be allowed to do so, but ``given the
dearth of information available and the inefficiency of gathering it,
this should not be required'' (see page 12 of ATA's December 1, 2017,
comment, which is available in the docket for this ANPRM).
The requirement that drivers provide their employment history
operating a CMV requiring a CDL during the prior 10 years when applying
to operate such a CMV is statutorily mandated; therefore, FMCSA may not
eliminate that requirement. The statutory requirement to provide 10
years of employment history is implemented through Sec. 383.35 and, as
a result, Sec. 391.21(b)(11) may not be necessary to comply with the
statutory mandate. FMCSA requests public comment on the extent to which
the information required in Sec. 391.21(b)(11) may be necessary,
obtainable, or burdensome. Additionally, FMCSA seeks comment
[[Page 8500]]
on available alternatives to an employment application that could
provide a driver's employment history operating a CMV requiring a CDL
in the past 10 years consistent with the prevailing statutory mandate.
Although ATA's specific recommendation requires Congressional
action to effectuate, the suggestion led FMCSA to review Sec. 391.21
and evaluate whether the requirement for drivers to complete an
employment application continues to be necessary and effectively solves
a current problem. As noted above, few substantive changes have been
made to Sec. 391.21 since it was adopted in 1970.
Section 391.21 provides that an individual may not drive a CMV
unless he or she has completed and furnished the motor carrier that
employs him or her with an application for employment that includes
certain information prescribed by FMCSA. FMCSA does not require that a
specific form or format be used for the application. Rather, the motor
carrier is to provide the application form to the driver. FMCSA
requires, however, that the application contain the following
information:
1. The name and address of the employing motor carrier;
2. The applicant's name, address, date of birth, and social
security number;
3. The addresses at which the applicant has resided during the 3
years preceding the date on which the application is submitted;
4. The date on which the application is submitted;
5. The issuing State, number, and expiration date of each unexpired
CMV operator's license or permit that has been issued to the applicant;
6. The nature and extent of the applicant's experience in the
operation of motor vehicles, including the type of equipment that he or
she has operated;
7. A list of all motor vehicle accidents in which the applicant was
involved during the 3 years preceding the date the application is
submitted, specifying the date and nature of each accident and any
fatalities or personal injuries it caused;
8. A list of all violations of motor vehicle laws or ordinances
(other than violations involving only parking) of which the applicant
was convicted or forfeited bond or collateral during the 3 years
preceding the date the application is submitted;
9. A statement setting forth in detail the facts and circumstances
of any denial, revocation, or suspension of any license, permit, or
privilege to operate a motor vehicle that has been issued to the
applicant, or a statement that no such denial, revocation, or
suspension has occurred;
10. A list of the names and addresses of the applicant's employers
during the 3 years preceding the date the application is submitted, the
dates he or she was employed by that employer, the reason for leaving
the employ of that employer, whether the applicant was subject to the
FMCSRs while employed by that previous employer, and whether the job
was designated as a safety sensitive function in any DOT regulated mode
subject to alcohol and controlled substances testing requirements as
required by 49 CFR part 40;
11. For those drivers applying to operate a CMV as defined by part
383, a list of the names and addresses of the applicant's employers
during the 7-year period preceding the 3 years contained in paragraph
10 for which the applicant was an operator of a CMV, together with the
dates of employment and the reasons for leaving such employment; and
12. A certification and signature line.
Before the application is submitted, the motor carrier must inform the
applicant how the employment information covering the past 3 years will
be used. Additionally, the employer must notify the driver in writing
of certain due process rights regarding the information received as the
result of the inquiries to the prior employers.
FMCSA recognizes that the use of paper documents in business is
becoming obsolete and that many businesses and individuals can achieve
greater efficiencies using electronic methods. In recent years, FMCSA
has received a number of requests from motor carriers and other
interested parties asking permission to use electronic methods to
comply with various Agency regulations that require motor carriers and
individuals to generate, sign, or store documents. On April 16, 2018,
FMCSA issued a final rule amending its regulations to allow the use of
electronic records and signatures to satisfy FMCSA's regulatory
requirements (73 FR 16210).
The requirement that a driver complete an employment application
and provide the information specified by FMCSA may limit flexibility
for prospective drivers and motor carriers and be overly prescriptive.
It is not typical for the Federal government to require employers in
regulated industries to have their prospective employees complete
employment applications and provide information specified by the
government. Even within other DOT regulated industries, agencies, such
as the Federal Aviation Administration and Federal Railroad
Administration, do not impose a requirement to have prospective
employees complete an employment application. Additionally, the
information required by Sec. 391.21 might be redundant of certain
regulatory requirements (e.g., Sec. Sec. 383.35, 383.37, 391.11, and
391.23), and thus may be unnecessary or could be obtained more
efficiently from alternative sources. Accordingly, the best approach
may be to leave it to the prospective drivers and motor carriers to
determine the most efficient manner and process for them to fulfill
their required notification and investigation duties.
The Agency already concluded in 1998 that the act of completing and
providing an application for employment is merely the presentation of a
recordkeeping document and does not determine whether a driver is
qualified to operate a CMV. Moreover, this recordkeeping requirement
imposes significant compliance burdens on the industry.
Because FMCSA requires that certain information be provided as part
of the employment application, the requirement that a prospective
driver complete and provide an employment application to a motor
carrier constitutes an information collection subject to the Paperwork
Reduction Act of 1995 (PRA). The PRA requires Federal agencies to
minimize the burden on the public resulting from their information
collections, and to maximize the practical utility of the information
collected. OMB oversees agency information collection activities under
the PRA. Before an agency undertakes a collection of information, OMB
must review and approve the burden imposed on the public by such an
information collection.
On January 6, 2017, OMB approved FMCSA's request to renew the
information collection titled ``Driver Qualification Files,'' OMB
number 2126-0004, which expires January 31, 2020. FMCSA estimated 4.8
million hours as the annual recordkeeping burden on CMV operators and
motor carriers to comply with most of Sec. 391.21, except Sec.
391.21(b)(11). The full methodology FMCSA used to estimate the burden
hours is described in the Driver Qualification Files Supporting
Statement posted on Reginfo.gov on July 15, 2016,\4\ which is also
available in the docket for this ANPRM.
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\4\ See https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201607-2126-001 under ``Supporting Statement
A'' (Accessed February 20, 2019).
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[[Page 8501]]
The 2017-2020 Driver Qualification Files information collection
annual burden estimate was based on:
1. A 63 percent turnover rate among interstate and intrastate CMV
drivers;
2. 18 million employment applications per year submitted to motor
carriers, which is the product of an estimated 3.6 million job openings
per year and 5 applications received by motor carriers for each job
opening;
3. 15 minutes for a driver to complete an application, which
includes obtaining a certificate of past traffic violations; and
4. 1 minute for the motor carrier to handle the application.
The Agency also assumed that some of the regulatory requirements in
Sec. 391.21 would be employed by any hiring entity, including hiring
motor carriers, even if the FMCSRs did not exist. For instance,
employers must ask for the driver's name, address, date of birth, and
social security number, as well as the issuing State, number, and
expiration date of the driver's license to operate a CMV. The Agency
determined that employers would ask the nature and extent of the
driver's experience in the operation of CMVs even in the absence of
Sec. 391.21. The Agency considered such elements of the application
process, whether required of applicants or hiring motor carriers, to be
exempt from PRA estimates under the ``usual and customary'' practices
exception (5 CFR 1320.3(b)(2)).
The Agency intends to use the methodology described in the 2016
Supporting Statement to estimate the burden hours drivers and motor
carriers would no longer incur if Sec. 391.21 is changed or
eliminated; however, more current data would be used in the estimate.
The Agency requests public comment on the efficacy of its assumptions
and methodology, as posited in Section V.
On October 31, 2018, OMB received FMCSA's request to renew the
information collection titled ``Commercial Driver Licensing and Testing
Standards,'' OMB number 2126-0011, which was renewed and now expires
December 31, 2021. This information collection includes the burden to
comply with the requirement in Sec. 391.21(b)(11) that drivers, who
are applying to operate a CMV that requires a CDL, report their
experience operating such CMVs in the previous 10 years.
Although the Agency is seeking comment on whether to revise or
eliminate Sec. 391.21 and its requirement for an employment
application with specific information, FMCSA emphasizes that it is not
seeking comment on whether to eliminate the underlying notification and
investigation requirements associated with the employment process that
are required by parts 383 and 391. Because the underlying notification
and investigation requirements are beyond the scope of this rulemaking,
some of the burden for complying with them that was previously
accounted for in the Driver Qualification Files information collection
for Sec. 391.21 might be accounted for in other information
collections.
V. Questions
The Agency seeks comments and data from the public in response to
this ANPRM. FMCSA requests that commenters address their comments
specifically to the questions below, and that commenters number their
comments to correspond to each question.
1. How would the elimination of 49 CFR 391.21, which includes the
requirement to have prospective drivers complete an employment
application, impact a motor carrier's ability to hire safe drivers?
2. If the requirement in 49 CFR 391.21 for an employment
application is not eliminated in its entirety, what elements should be
retained to determine the safety performance history of the driver?
3. In the ordinary course of business, would a motor carrier
require a prospective driver to prepare an employment application? If
so, what (if any) information currently required by Sec. 391.21 would
a motor carrier not require a prospective driver to include on the
employment application?
4. Is there information required by Sec. 391.21 that a motor
carrier or safety official could reasonably find in the motor carrier's
personnel or other files, on government databases, or from other
sources that would make the employment application duplicative of that
information? If so, what is the information and what are the sources?
5. Knowing there are notification and investigation requirements
that would not be removed by changing or eliminating the requirement
for an employment application, for example, Sec. Sec. 383.35, 391.23,
and 391.53, how would an employer and driver demonstrate compliance
with each requirement in the absence of an employment application for
both CDL and non-CDL CMV drivers?
6. Is the requirement in Sec. 391.21(b)(11) that drivers provide
their employment history operating a CMV that requires a CDL during the
prior 10 years when applying to operate such a CMV necessary,
obtainable, or burdensome?
7. Are there less burdensome alternatives to an employment
application that could provide the necessary 10 years of driver
employment history operating a CMV that requires a CDL?
8. Are there alternative methodologies to the 2016 Supporting
Statement's methodology referenced above that would provide a superior
estimate of the number of job openings and employment applications
submitted to motor carriers?
9. Is the assumption used in the 2016 Supporting Statement that a
job opening will result in a motor carrier receiving five employment
applications on average reasonable? If not, what would be a better
estimate and why? Please provide data if possible.
10. The 2016 Supporting Statement describes the data sources and
methodology on page 5 used to estimate the turnover rate for CMV
operators.\5\ Do they result in a reasonable estimate of the 63 percent
turnover rate?
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\5\ The 63 percent turnover rate is a weighted average of
turnover rates by for-hire industry sectors (truckload--94 percent,
over the road--94 percent, and less than truckload carriers--13
percent). The data were obtained from the Journal of Commerce, US
truck driver turnover rate rises, pressuring shipping costs,
February 2, 2015, http://www.joc.com/trucking-logistics/labor/us-truck-driver-turnover-rate-rises-pressuring-shipping-costs_20150202.html. The Agency estimated the proportion of drivers
by industry sector at 20 percent for truckload, 40 percent for over
the road, and 40 percent for less than truckload.
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11. Are there any specific impacts of the proposed changes on small
motor carriers that the Agency should consider?
Issued under the authority of delegation in 49 CFR 1.87.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-04188 Filed 3-7-19; 8:45 am]
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