Lifetime Disqualification for Human Trafficking |
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Raymond P. Martinez
Federal Motor Carrier Safety Administration
23 July 2019
[Federal Register Volume 84, Number 141 (Tuesday, July 23, 2019)]
[Rules and Regulations]
[Pages 35335-35339]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-15611]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 383 and 384
[Docket No. FMCSA-2018-0361]
RIN 2126-AC20
Lifetime Disqualification for Human Trafficking
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Final rule.
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SUMMARY: This final rule revises the list of offenses permanently
disqualifying individuals from operating a commercial motor vehicle
(CMV) for which a commercial drivers' license or a commercial learner's
permit is required. This final rule reflects a change made by Congress
in the ``No Human Trafficking on Our Roads Act'' (the Act) which
prohibits an individual from operating a CMV for life if that
individual uses a CMV in committing a felony involving a severe form of
human trafficking, adding to the list of other disqualifying offenses
identified in statute. A list of these disqualifying offenses already
exists in the FMCSRs; this final rule is necessary to update that list
to include the new disqualifying offense established by the Act. This
final rule also sets a deadline for States to come into substantial
compliance with this requirement.
DATES: This final rule is effective September 23, 2019.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than August 22, 2019.
FOR FURTHER INFORMATION CONTACT: Kathryn Sinniger, Office of the Chief
Counsel, Regulatory and Legislative Affairs, Federal Motor Carrier
Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-
0001 or by telephone at 202-366-0908. If you have questions on viewing
or submitting material to the docket, contact Docket Services,
telephone (202) 366-9826.
SUPPLEMENTARY INFORMATION: This Final Rule is organized as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
III. Legal Basis
IV. Discussion of Final Rule
V. International Impacts
VI. Section-by-Section
VII. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review and DOT Regulatory
Policies and Procedures as Supplemented by E.O. 13563)
B. Regulatory Flexibility Act (Small Entities)
C. Assistance for Small Entities
D. Unfunded Mandates Reform Act of 1995
E. Paperwork Reduction Act (Collection of Information)
F. E.O. 13132 (Federalism)
G. E.O. 12988 (Civil Justice Reform)
H. E.O. 13045 (Protection of Children)
I. E.O. 12630 (Taking of Private Property)
J. Privacy
K. E.O. 12372 (Intergovernmental Review)
L. E.O. 13211 (Energy Supply, Distribution, or Use)
M. E.O. 13175 (Indian Tribal Governments)
N. National Technology Transfer and Advancement Act (Technical
Standards)
O. Environment
I. Availability of Rulemaking Documents
For access to docket FMCSA-2018-0361 to read background documents,
go to http://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.
II. Executive Summary
This final rule revises the list of offenses permanently
disqualifying individuals required to have a commercial drivers'
license (CDL) or a commercial learner's permit (CLP). This final rule
reflects a change made by Congress in the ``No Human Trafficking on Our
Roads Act'' (Pub. L. 115-106, 131 Stat. 2265, Jan. 8, 2018) (the Act).
The Act prohibits an individual from operating a commercial motor
vehicle (CMV), as defined in 49 U.S.C. 31301(4), for life, not eligible
for reinstatement, if that individual uses a CMV in committing a felony
involving a severe form of human trafficking, adding to the list of
disqualifying offenses found in 49 U.S.C. 31310. A list of those
existing disqualifying offenses already exists in 49 CFR 383.51; this
final rule is necessary to update that list to include the new lifetime
disqualifying offense established by the Act.
This final rule also sets a deadline for States to come into
substantial compliance, as required by 49 U.S.C. 31311(a)(15).
[[Page 35336]]
III. Legal Basis for the Rulemaking
This final rule is based on the authority of the Commercial Motor
Vehicle Safety Act of 1986, as amended (CMVSA) (Pub. L. 99-570, Title
XII, 100 Stat. 3207-170, 49 U.S.C. chapter 313). The CMVSA, implemented
in 49 CFR parts 383 and 384, established the commercial driver's
license (CDL) and commercial learner's permit (CLP) programs. As part
of the standards governing the operation of CMVs for which a CDL or CLP
is required, section 31310 sets forth the offenses for which the
Secretary of Transportation (the Secretary) must disqualify an
individual from operating a CMV. In accordance with 49 CFR 1.87, the
FMCSA Administrator is delegated authority to carry out the motor
carrier functions vested in the Secretary. Section 31311(a)(15)
requires the State, in order to avoid having amounts withheld from
apportionment under section 31314, to disqualify the individual from
operating a CMV for the same reasons and time periods set forth in
section 31310, subsections (b-e), (i)(1)(A), and (i)(2).
The specific authority for this final rule derives from the ``No
Human Trafficking on Our Roads Act'' (the Act) (Pub. L. 115-106, 131
Stat. 2265, Jan. 8, 2018), which amended 49 U.S.C. 31310(d) by adding
the use of a CMV in committing a felony involving a severe form of
human trafficking as a basis for an individual to be disqualified from
operating a CMV for life without the possibility of reinstatement.
Today's rule adds this offense to the other bases for disqualification
already set forth in 49 CFR 383.51.
The Administrative Procedure Act (APA) provides that notice and
public comment procedures are not required when an Agency finds there
is ``good cause'' to dispense with such procedures and incorporates the
finding and a brief statement of reasons to support the finding in the
rule issued. Good cause exists when the agency determines that notice
and public comment procedures are impracticable, unnecessary, or
contrary to the public interest (5 U.S.C. 553(b)(3)(B)). The statutory
provision set forth in the Act is already in effect, and is enforceable
regardless of whether it is incorporated into the CFR. This final rule
incorporates the statutory provision into the CFR, to promote public
awareness of this important provision and to ensure there is no
discrepancy between statute and regulation, which could cause
confusion. Because this final rule simply codifies already-existing
statutory requirements into regulation, FMCSA would be unable to make
any changes to this rule in response to comments. FMCSA therefore finds
good cause that public comment procedures are unnecessary.
FMCSA is aware of the regulatory requirements concerning public
participation in FMCSA rulemaking (49 U.S.C. 31136(g)). These
requirements pertain to certain major rules,\1\ but, because this final
rule is not a major rule, they are not applicable here. In addition,
the Agency finds that publication of an advance notice of proposed
rulemaking under 49 U.S.C. 31136(g)(1)(A), or a negotiated rulemaking
under 49 U.S.C. 31136(g)(1)(B), is unnecessary and contrary to the
public interest in accordance with the waiver provision in 49 U.S.C.
31136(g)(3).
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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 on 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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IV. Discussion of Final Rule
As noted above, the Act imposes a lifetime ban from operating a CMV
on an individual who uses a CMV in committing a felony involving a
severe form of trafficking in persons, as defined in 22 U.S.C.
7102(11).\2\ As noted in the Senate Report accompanying the
legislation, ``Human trafficking, particularly sex trafficking, is
known to be present at commercially operated truck stops and State-
operated rest areas throughout the United States. Given their
remoteness and insulation from communities, these locations can be a
convenient place for sex traffickers to operate with minimal concerns
for detection'' (Senate Report 115-188, Nov. 30, 2017). While Congress
noted that CMV drivers can play an important part in identifying
trafficking incidents, it concluded that more can be done to combat
human trafficking. The Act is therefore intended to serve as a
deterrent measure, as well as to punish those felonies involving severe
forms of trafficking in persons.
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\2\ The Act references the definition found in 22 U.S.C.
7102(9). A recent reauthorization of the Trafficking Victims
Protection Act of 2000 resulted in the redesignation of 22 U.S.C.
7101(9) to 22 U.S.C. 7102(11). This rule references the redesignated
paragraph, in order to maintain the original intent of Congress when
passing the Act. See ``Trafficking Victims Protection
Reauthorization Act of 2017,'' Public Law 115-427 (Jan, 9, 2019).
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The Act, which is self-executing, disqualifies any individual who
uses a CMV in committing a felony involving a severe form of
trafficking in persons, as defined in 22 U.S.C. 7102(11), from
operating a CMV for life. 22 U.S.C. 7102(11) defines the term ``severe
forms of trafficking in persons'' to mean either ``sex trafficking in
which a commercial sex act is induced by force, fraud, or coercion, or
in which the person induced to perform such act has not attained 18
years of age;'' or ``the recruitment, harboring, transportation,
provision, or obtaining of a person for labor or services, through the
use of force, fraud, or coercion for the purpose of subjection to
involuntary servitude, peonage, debt bondage, or slavery.'' The term
``sex trafficking'' is further defined as ``the recruitment, harboring,
transportation, provision, obtaining, patronizing, or soliciting of a
person for the purpose of a commercial sex act'' (22 U.S.C. 7102(12).
This final rule adds the lifetime disqualification without
reinstatement to the list of disqualifying major offenses currently set
forth in 49 CFR 383.51(b), Table 1.
This final rule also give States three years to come into
substantial compliance with the Act, as required by 49 U.S.C.
31311(a)(15), which reads ``The State shall disqualify an individual
from operating a commercial motor vehicle for the same reasons and time
periods for which the Secretary shall disqualify the individual under
subsections (b)-(e), (i)(1)(A) and (i)(2) of section 31310.'' Because,
as noted above, the Act amended 49 U.S.C. 31310(d), States must satisfy
the requirement to disqualify for life without reinstatement any
individual who uses a CMV in committing a felony involving a severe
form of trafficking in persons (as those terms are defined above).
Recognizing that some States may need to conform their licensing
statutes and regulations to include this new disqualifying offense, the
Agency requires that States come into substantial compliance with 49
U.S.C. 31311(a) as soon as practicable, but not later than three years
from the effective date of this final rule.
V. International Impacts
The FMCSRs, and any exceptions to the FMCSRs, apply only within the
United States (and, in some cases, United States territories). Motor
carriers and drivers are subject to the laws and regulations of the
countries that they operate in, unless an international agreement
states otherwise. Drivers and
[[Page 35337]]
carriers should be aware of the regulatory differences amongst nations.
VI. Section-by-Section Analysis
This final rule adds a new entry to 49 CFR 383.51(b), Table 1 to
read as follows: (10) using the vehicle in the commission of a felony
involving an act or practice of severe forms of trafficking in persons,
as defined and described in 22 U.S.C. 7102(11).
This final rule also adds new paragraph (j) to 49 CFR 384.301,
requiring States to come into substantial compliance with the changes
made by this final rule within three years of its effective date.
VII. Regulatory Analyses
A. Executive Order (E.O). 12866 (Regulatory Planning and Review and DOT
Regulatory Policies and Procedures as Supplemented by E.O. 13563)
FMCSA determined that this final rule is not a significant
regulatory action under section 3(f) of Executive Order 12866,
Regulatory Planning and Review, as supplemented by E.O. 13563 (76 FR
3821, January 21, 2011). Accordingly, the Office of Management and
Budget has not reviewed it under that Order. The rule also is not
significant within the meaning of DOT regulatory policies and
procedures (DOT Order 2100.6 dated December 20, 2018).
The Agency does not expect this rule to result in incremental costs
or benefits. This rule brings FMCSRs into alignment with statute by
adding the statutory provision in 49 U.S.C. 31310(d) to 49 CFR part
383.51. As described above in ``III. Legal Basis for the Rulemaking,''
the Act added a lifetime disqualification, not eligible for
reinstatement, from operating a CMV to the list of disqualifying
offenses found in 49 U.S.C. 31310 for individuals using a CMV in
committing a felony involving a severe form of human trafficking. This
offense, resulting in disqualification for life without reinstatement,
is currently enforceable under the Act as of January 8, 2018.
Therefore, individuals operating a CMV are already subject to
enforcement under the existing statute regardless of whether this rule
is promulgated.
This final rule requires States to come into substantial compliance
with these changes within three years of the effective date. This
follows the Agency's precedent of allowing States three years to take
any required conforming legislative or regulatory actions.
B. E.O. 13771 Reducing Regulation and Controlling Regulatory Costs
This rule is not an E.O. 13771 regulatory action because this rule
is not significant under E.O. 12866.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires Federal agencies to consider the effects of the regulatory
action on small business and other small entities and to minimize any
significant economic impact. The term ``small entities'' comprises
small businesses and not-for-profit organizations that are
independently owned and operated and are not dominant in their fields,
and governmental jurisdictions with populations of less than 50,000.\3\
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.
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\3\ 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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FMCSA is not required to complete a regulatory flexibility
analysis, because, as discussed earlier in the Legal Basis section,
this action is not subject to notice and comment under section 553(b)
of the APA.
D. 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 final rule so they can better evaluate its
effects on themselves and participate in the rulemaking initiative. If
the final rule will 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 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 $161 million (which is the
value equivalent of $100,000,000 in 1995, adjusted for inflation to
2017 levels) or more in any one year. Though this final rule is not a
discretionary regulatory action and thus will not result in such an
expenditure, the Agency does discuss the effects of this rule elsewhere
in this preamble.
F. Paperwork Reduction Act
This final rule calls for no new collection of information under
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).
G. 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 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. Therefore, this rule does not
have sufficient federalism implications to warrant the preparation of a
Federalism Impact Statement.
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,
eliminates 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
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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
The Consolidated Appropriations Act, 2005, (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 (PII).
The E-Government Act of 2002, Public Law 107-347, 208, 116 Stat.
2899, 2921 (Dec. 17, 2002), requires Federal agencies to conduct PIA
for new or substantially changed technology that collects, maintains,
or disseminates information in an identifiable form. Because no new or
substantially changed technology would collect, maintain, or
disseminate information as a result of this rule, FMCSA did not conduct
a privacy impact assessment.
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 it 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.
O. National Technology Transfer and Advancement Act (Technical
Standards)
The National Technology Transfer and Advancement Act (NTTAA) (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
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(s)(5). The Categorical Exclusion (CE) in
paragraph(s) covers Regulations intended to help reduce or prevent
truck and bus accidents, fatalities, and injuries by requiring drivers
to have a single commercial motor vehicle driver's license and by
disqualifying drivers who operate commercial motor vehicles in an
unsafe manner and provide for periods of disqualification and penalties
for those persons convicted of certain criminal and other offenses and
serious traffic violations. 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 website listed under ADDRESSES.
List of Subjects
49 CFR Part 383
Administrative practice and procedure, Commercial driver's license,
Commercial motor vehicles, Highway safety, Motor carriers.
49 CFR Part 384
Administrative practice and procedure, Alcohol abuse, Drug abuse,
Highway safety, Motor carriers.
In consideration of the foregoing, FMCSA amends 49 CFR chapter III
as follows:
PART 383--COMMERCIAL DRIVER'S LICENSE STANDARDS; REQUIREMENTS AND
PENALTIES
0
1. The authority citation for part 383 continues to read as follows:
Authority: Authority: 49 U.S.C. 521, 31136, 31301 et seq., and
31502; secs. 214 and 215 of Pub. L. 106-159, 113 Stat. 1748, 1766,
1767; sec. 1012(b) of Pub. L. 107-56, 115 Stat. 272, 297, sec. 4140
of Pub. L. 109-59, 119 Stat. 1144, 1746; sec. 32934 of Pub. L. 112-
141, 126 stat. 405, 830; and 49 CFR 1.87.
Subpart D--Driver Disqualifications and Penalties
0
2. In Sec. 383.51, by add paragraph (b)(10) to table 1 to read as
follows:
Sec. 383.51 Disqualification of drivers.
* * * * *
(b) * * *
[[Page 35339]]
Table 1 to Sec. 383.51
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For a first For a second
conviction or refusal conviction or refusal For a second
For a first conviction to be tested while to be tested in a conviction or refusal
or refusal to be For a first conviction operating a CMV separate incident of to be tested in a
tested while operating or refusal to be transporting any combination of separate incident of
a CMV, a person tested while operating hazardous materials offenses in this any combination of
If a driver operates a motor required to have a CLP a non-CMV, a CLP or as defined in Sec. Table while operating offenses in this
vehicle and is convicted of: or CDL and a CLP or CDL holder must be 383.5, a person a CMV, a person Table while operating
CDL holder must be disqualified from required to have a required to have a a non-CMV, a CLP or
disqualified from operating a CMV for * CLP or CDL and a CLP CLP or CDL and a CLP CDL holder must be
operating a CMV for * * * or CDL holder must be or CDL holder must be disqualified from
* * disqualified from disqualified from operating a CMV for *
operating a CMV for * operating a CMV for * * *
* * * *
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* * * * * * *
(10) Using a CMV in the commission Life--not eligible for Not applicable........ Life--not eligible Life--not eligible Not applicable.
of a felony involving an act or 10-year reinstatement. for 10-year for 10-year
practice of severe forms of reinstatement. reinstatement.
trafficking in persons, as defined
and described in 22 U.S.C.
7102(11).
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* * * * *
PART 384--STATE COMPLIANCE WITH COMMERCIAL DRIVER'S LICENSE PROGRAM
0
5. The authority citation for part 384 continues to read as follows:
Authority: 49 U.S.C. 31136, 31301 et seq., and 31502; secs. 103
and 215 of Pub. L. 106-59, 113 Stat. 1753, 1767; sec. 32934 of Pub.
L. 112-141, 126 Stat. 405, 830; sec. 5401 and 7208 of Pub. L. 114-
94, 129 Stat. 1312, 1546, 1593; and 49 CFR 1.87.
Subpart C--Procedures for Determining State Compliance
0
6. In Sec. 384.301, add paragraph (j) to read as follows:
Sec. 384.301 Substantial compliance--general requirements.
* * * * *
(j) A State must come into substantial compliance with the
requirements of part 383 of this chapter in effect as of September 23,
2019, or as soon as practicable, but not later than September 23, 2023.
Issued under authority delegated in 49 CFR 1.87.
Dated: July 11, 2019.
Raymond P. Martinez,
Administrator.
[FR Doc. 2019-15611 Filed 7-22-19; 8:45 am]
BILLING CODE 4910-EX-P