FMCSA FINAL RULE: RECORD OF VIOLATIONS

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), Department of Transportation (DOT).

ACTION:

Final rule.

SUMMARY:

FMCSA amends its regulations to eliminate the requirement that drivers operating commercial motor vehicles (CMVs) in interstate commerce prepare and submit a list of their convictions for traffic violations to their employers annually. This requirement is largely duplicative of a separate rule that requires each motor carrier to make an annual inquiry to obtain the motor vehicle record (MVR) for each driver it employs from every State in which the driver holds or has held a CMV operator’s license or permit in the past year. To ensure motor carriers are aware of traffic convictions for a driver who is licensed by a foreign authority rather than by a State, the Agency amends the rule to provide that motor carriers must make an annual inquiry to each driver’s licensing authority where a driver holds or has held a CMV operator’s license or permit.

DATES:

This final rule is effective May 9, 2022.

Comments on the information collections in this final rule must be submitted to the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget (OMB) by April 8, 2022.

Petitions for Reconsideration of this final rule must be submitted to the FMCSA Administrator no later than April 8, 2022.

ADDRESSES:

Comments and recommendations for the proposed information collections should be sent within 30 days of publication of this final rule to https://www.reginfo.gov/​public/​do/​PRAMain. Find the particular information collection by selecting “Currently under Review—Open for Public Comments” or by using the search function.

FOR FURTHER INFORMATION CONTACT:

Mr. Richard Clemente, Office of Driver and Carrier Operations, MCPSD, Federal Motor Carrier Safety Administration, 1200 New Jersey Avenue SE, Washington, DC 20590-0001; (202) 366-4325; .

Availability of Rulemaking Documents

To view any documents mentioned as being available in the docket, go to https://www.regulations.gov/​docket/​FMCSA-2018-0224/​document and choose the document to review. To view comments, click this final rule, then click “Browse Comments.” If you do not have access to the internet, you may view the docket online by visiting Dockets Operations in Room W12-140 on the ground floor of the DOT West Building, 1200 New Jersey Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. To be sure someone is there to help you, please call (202) 366-9317 or (202) 366-9826 before visiting Dockets Operations.

II. Executive Summary
A. Purpose and Summary of the Final Rule

In this final rule, the Agency rescinds 49 CFR 391.27 (Record of violations) and removes all related references to the rule in the Federal Motor Carrier Safety Regulations (FMCSRs). Section 391.27 provides that each motor carrier must, at least once every 12 months, require each driver it employs to prepare and furnish the motor carrier with a list of all violations of motor vehicle traffic laws and ordinances, other than violations involving only parking, for which the driver has been convicted or has forfeited bond or collateral during the preceding 12 months. When a driver does not have any such violations to report, the driver is required to furnish a certification to that effect. The motor carrier must retain the list of violations or certification of no violations in the driver’s qualification file.

FMCSA retains the requirement in § 391.25(a) (Annual inquiry and review of driving record) for an annual MVR inquiry. Section 391.25 requires each motor carrier to make an annual inquiry to obtain the MVR for each driver it employs from every State [1] in which the driver holds or has held a CMV operator’s license or permit in the past year. The motor carrier must review the MVR obtained and maintain a copy of it in the driver’s qualification file. Section 391.25 applies to all motor carriers, domestic and foreign, but is limited to inquiries for drivers licensed by a State.

To ensure motor carriers are aware of traffic convictions for a driver who is licensed by a foreign authority rather than by a State, FMCSA amends § 391.25(a) to require motor carriers to inquire annually of each driver’s licensing authority where a driver holds or has held a CMV operator’s license or permit. This change requires motor carriers to request MVRs from Canadian and Mexican driver’s licensing authorities.

To maintain consistency within part 391 with respect to requests for MVRs, FMCSA makes conforming changes to the hiring process. The Agency amends § 391.23 (Investigation and inquiries) to require a motor carrier to make an inquiry to each driver’s licensing authority where the driver holds or has held a motor vehicle operator’s license or permit during the preceding 3 years to obtain the driver’s MVR when a motor carrier is hiring a driver. FMCSA changes § 391.21 (Application for employment) to require each driver to provide on the employment application the issuing driver’s licensing authority of each unexpired CMV operator’s license or permit that has been issued to the driver so motor carriers can make the required inquiries under § 391.23. In addition to the proposed changes, this rule adopts additional minor clarifications and conforming changes, which are outlined in the section discussing changes from the proposed rule and the Section-by-Section Analysis below.

B. Costs and Benefits

The elimination of § 391.27 results in cost savings to drivers, as they will no longer spend time completing a list of convictions for traffic violations or certificate of no convictions. It also results in cost savings to motor carriers, as they no longer have to file the lists or certificates in driver qualification files. The Agency estimates that rescinding § 391.27 results in cost savings of $24.9 million over 10 years, at a 7 percent discount rate. The annualized cost savings are estimated to be $3.5 million.

Changes made in the FMCSRs to require inquiries to Canadian and Mexican driver’s licensing authorities have minimal, if any, impact. Only a small proportion of CMV drivers operating in the United States are licensed by a foreign authority rather than by a State. Of the 6.8 million CMV drivers reported in FMCSA’s 2020 Pocket Guide to Large Truck and Bus Statistics,[2] the Agency estimates that at most only 2.3 percent are employed by Canadian motor carriers operating in the United States and 0.5 percent are employed by Mexican motor carriers operating in the United States. The combined total 2.8 percent represents 149,119 drivers reported as being employed by Canadian and Mexican motor carriers.[3]

These changes do not increase reporting and recordkeeping costs for motor carriers or drivers. This is because the Motor Carrier Management Information System (MCMIS), the repository for the Agency’s driver population data, counts the total number of drivers reported by motor carriers, both foreign and domestic, and, for purposes of information collection burden calculation, the median fee for obtaining an MVR from either a foreign or a domestic authority is generally the same.[4] FMCSA uses the MCMIS driver population data, which currently includes drivers employed by Canadian and Mexican motor carriers, to calculate the burden associated with information collections and paperwork.

In addition, Canadian and Mexican motor carriers are already required by their applicable safety codes to request MVRs for their drivers from their country’s licensing authorities.[5] Accordingly, FMCSA has determined that the changes to §§ 391.23 and 391.25 to require inquiries to Canadian and Mexican driver’s licensing authorities to obtain MVRs imposes no new record keeping or reporting costs or burdens. Though Canadian and Mexican motor carriers are not required to change their current business practices and do not have any new costs or burdens imposed as a result of this rule, FMCSA continues to include the costs and burdens for requesting MVRs in the current information collection to treat all motor carriers consistently and for administrative convenience.

FMCSA does not expect this rule will negatively affect CMV safety. Motor carriers are still required by § 391.25 to make an inquiry at least annually to each driver’s licensing authority in which an employed driver holds or has held a CMV operator’s license or permit to obtain the MVR of each driver they employ. Thus, motor carriers still have a reliable way to learn of any convictions for traffic violations incurred by their driver employees.

IV. Legal Basis for the Rulemaking

This final rule eliminates a duplicative paperwork requirement and clarifies the licensing authority from which motor carriers obtain MVRs. The rule is based primarily on the authorities of 49 U.S.C. 31502(b) and 31136(a).

Section 31502(b) authorizes the Secretary of Transportation (Secretary) to establish requirements for the qualifications of employees and the safety of operation of a motor carrier. This rule addresses the qualifications of motor carrier employees, consistent with the safe operation of CMVs.

Section 31136 provides concurrent authority to regulate drivers, motor carriers, and vehicle equipment. Section 31136(a)(1) requires that the Secretary issue regulations on CMV safety, including regulations to ensure that CMVs are operated safely. 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 requirement for motor carriers to inquire of driver’s licensing authorities to obtain the MVR of each driver they employ does not impose any responsibilities on CMV drivers that would impair their ability to operate the vehicles safely. This rule does not address medical standards for drivers or possible physical effects caused by driving CMVs (section 31136(a)(3) and (a)(4), respectively). There is no basis to anticipate that drivers would be coerced (section 31136(a)(5)) because of this rule. In addition, the Secretary has discretionary authority under 49 U.S.C. 31133(a)(8) to prescribe, and thus to remove, recordkeeping and reporting requirements. This rule rescinds § 391.27 using that authority.

The FMCSA Administrator 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.

Finally, prior to prescribing any regulations, FMCSA must consider the “costs and benefits” (49 U.S.C. 31136(c)(2)(A) and 31502(d)). Those factors are addressed in the Regulatory Analyses of this rule.

V. Discussion of Proposed Rule

On December 14, 2020, FMCSA published a notice of proposed rulemaking (NPRM) (85 FR 80745). The NPRM proposed to eliminate the duplicative requirement in § 391.27 that drivers operating a CMV in interstate commerce prepare and submit a list of their convictions for traffic violations to their employers annually. FMCSA proposed to retain the requirement in § 391.25(a) for an annual MVR inquiry, but to change it to require an annual inquiry to obtain the MVR for each driver it employs from every driver’s licensing authority, instead of State, in which the driver holds or has held a CMV operator’s license or permit in the past year. FMCSA proposed to conform §§ 391.21, 391.23, and 391.51 (General requirements for driver qualification files) by changing references to a “State” to a “driver’s licensing authority.” FMCSA also proposed changes to remove references to § 391.27 in Appendix B to Part 385—Explanation of Safety Rating Process and in §§ 391.11 (General qualifications of drivers), 391.51, and 391.63 (Multiple-employer drivers). A detailed discussion of the regulatory background of § 391.27, the rationale for eliminating it, and what was proposed is set forth in the NPRM (85 FR 80748-50).

To view the Final Rule: Record of Violations

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