Qualification of Drivers; Employment Application, 8497-8501 [2019-04188]

Download as PDF Federal Register / Vol. 84, No. 46 / Friday, March 8, 2019 / Proposed Rules 8497 DEPARTMENT OF TRANSPORTATION I. Public Participation and Request for Comments 47 CFR Part 1 Federal Motor Carrier Safety Administration A. Submitting Comments [WT Docket No. 08–7; Report No. 3111] 49 CFR Part 391 Petition for Reconsideration of a Declaratory Ruling on Regulatory Status of Wireless Messaging Service [Docket No. FMCSA–2018–0247] Federal Communications Commission. Qualification of Drivers; Employment Application FEDERAL COMMUNICATIONS COMMISSION AGENCY: ACTION: Petition for Reconsideration. RIN 2126–AC13 Federal Motor Carrier Safety Administration (FMCSA), DOT. SUMMARY: A Petition for Reconsideration ACTION: Advance notice of proposed (Petition) has been filed regarding the rulemaking (ANPRM). Commission’s declaratory ruling by John Bergmayer on behalf of Public SUMMARY: FMCSA is considering Knowledge. changes to the requirement to have prospective drivers complete an DATES: Oppositions to the Petition must employment application. FMCSA be filed on or before March 25, 2019. requests public comment on the value of Replies to an opposition must be filed and need for this requirement. Comment on or before April 2, 2019. also is sought on ways the requirement ADDRESSES: Federal Communications for an employment application could be Commission, 445 12th Street SW, changed to reduce the associated Washington, DC 20554. paperwork burdens for drivers and motor carriers, including but not limited FOR FURTHER INFORMATION CONTACT: to the complete elimination of the Elizabeth McIntyre, Deputy Chief, requirement. Competition and Infrastructure Policy Division, Wireless Telecommunications DATES: Comments on this ANPRM must Bureau, at (202) 418–0668, email be received on or before May 7, 2019. elizabeth.mcintyre@fcc.gov. ADDRESSES: You may submit comments SUPPLEMENTARY INFORMATION: This is a bearing the Federal Docket Management summary of the Commission’s System Docket ID (FMCSA–2018–0247) document, Report No. 3111, released using any of the following methods: February 5, 2019. The full text of the Federal eRulemaking Portal: Go to Petition is available for viewing and http://www.regulations.gov. Follow the copying at the FCC Reference online instructions for submitting Information Center, 445 12th Street SW, comments. Room CY–A257, Washington, DC 20554. Mail: Docket Management Facility, It also may be accessed online via the U.S. Department of Transportation, 1200 Commission’s Electronic Comment New Jersey Avenue SE, West Building Filing System at: http://apps.fcc.gov/ Ground Floor, Room W12–140, ecfs/. The Commission will not send a Washington, DC 20590. Congressional Review Act (CRA) Hand Delivery or Courier: U.S. submission to Congress or the Department of Transportation, 1200 Government Accountability Office New Jersey Avenue SE, West Building pursuant to the CRA, 5.U.S.C. Ground Floor, Room W12–140, 801(a)(1)(A) because no rules are being Washington, DC 20590, between 9 a.m. adopted by the Commission. and 5 p.m. ET, Monday through Friday, Subject: Petition for Declaratory except Federal holidays. Ruling on Regulatory Status of Wireless Fax: (202) 493–2251. Messaging Service, WT Docket No. 08– FOR FURTHER INFORMATION CONTACT: For 7, FCC 18–178, published at 84 FR 5008, information concerning this ANPRM, February 20, 2019. This document is contact Ms. Pearlie Robinson, Driver being published pursuant to 47 CFR and Carrier Operations Division, 1.429(e). FMCSA, 1200 New Jersey Avenue SE, Number of Petitions Filed: 1. Washington, DC 20590, (202) 366–4325, Federal Communications Commission. MCPSD@dot.gov. If you have questions Cecilia Sigmund, on viewing or submitting material to the docket, contact Docket Services at (202) Federal Register Liaison Officer. 366–9826. [FR Doc. 2019–04256 Filed 3–7–19; 8:45 am] SUPPLEMENTARY INFORMATION: BILLING CODE 6712–01–P VerDate Sep<11>2014 16:08 Mar 07, 2019 Jkt 247001 AGENCY: PO 00000 Frm 00022 Fmt 4702 Sfmt 4702 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 81⁄2 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, selfaddressed 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. E:\FR\FM\08MRP1.SGM 08MRP1 8498 Federal Register / Vol. 84, No. 46 / Friday, March 8, 2019 / Proposed Rules 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 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. VerDate Sep<11>2014 16:08 Mar 07, 2019 Jkt 247001 the requirement would equate to approximately $180 million. Accordingly, the Agency is publishing this ANPRM in accordance with the FAST Act. 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 PO 00000 Frm 00023 Fmt 4702 Sfmt 4702 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 § 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 § 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)). Accordingly, a June 1, 1987, final rule added a new paragraph (b)(11) to § 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 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 § 383.5. E:\FR\FM\08MRP1.SGM 08MRP1 Federal Register / Vol. 84, No. 46 / Friday, March 8, 2019 / Proposed Rules 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 § 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 § 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 § 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 § 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 § 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 § 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 § 391.21 (see 62 FR 3858). In its comments to the 1997 proposal, the American Trucking Associations, Inc. (ATA) opposed removing the requirement in § 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 VerDate Sep<11>2014 16:08 Mar 07, 2019 Jkt 247001 qualification standard would prevent motor carriers from gathering information to determine applicants’ qualifications in accordance with § 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 § 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 § 391.11(b) as proposed. FHWA noted specifically that it was not revising or removing § 391.21 (63 FR 33260). In 2004, FMCSA amended § 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 § 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 § 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 § 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 PO 00000 Frm 00024 Fmt 4702 Sfmt 4702 8499 safety performance history information as required by § 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 § 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 With respect to § 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 § 383.35 and, as a result, § 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 § 391.21(b)(11) may be necessary, obtainable, or burdensome. Additionally, FMCSA seeks comment 3 See E:\FR\FM\08MRP1.SGM Docket DOT–OST–2017–0069, Item 2758. 08MRP1 8500 Federal Register / Vol. 84, No. 46 / Friday, March 8, 2019 / Proposed Rules 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 § 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 § 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 VerDate Sep<11>2014 16:08 Mar 07, 2019 Jkt 247001 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 PO 00000 Frm 00025 Fmt 4702 Sfmt 4702 Administration and Federal Railroad Administration, do not impose a requirement to have prospective employees complete an employment application. Additionally, the information required by § 391.21 might be redundant of certain regulatory requirements (e.g., §§ 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 § 391.21, except § 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. 4 See https://www.reginfo.gov/public/do/ PRAViewDocument?ref_nbr=201607-2126-001 under ‘‘Supporting Statement A’’ (Accessed February 20, 2019). E:\FR\FM\08MRP1.SGM 08MRP1 Federal Register / Vol. 84, No. 46 / Friday, March 8, 2019 / Proposed Rules 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 § 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 § 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 § 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 § 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. VerDate Sep<11>2014 16:08 Mar 07, 2019 Jkt 247001 Although the Agency is seeking comment on whether to revise or eliminate § 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 § 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 § 391.21 would a motor carrier not require a prospective driver to include on the employment application? 4. Is there information required by § 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, PO 00000 Frm 00026 Fmt 4702 Sfmt 9990 8501 §§ 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 § 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? 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] BILLING CODE 4910–EX–P 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-truckdriver-turnover-rate-rises-pressuring-shippingcosts_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. E:\FR\FM\08MRP1.SGM 08MRP1

Agencies

[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.
---------------------------------------------------------------------------

    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]
 BILLING CODE 4910-EX-P