Fees for the Unified Carrier Registration Plan and Agreement, 53680-53695 [2022-18944]
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Federal Register / Vol. 87, No. 169 / Thursday, September 1, 2022 / Rules and Regulations
an attenuated strain of a select
biological agent or toxin that does not
pose a severe threat to public health and
safety may be excluded from the
requirements of the select agent
regulations. On February 7, 2003, VEEV
strain TC–83 was excluded from select
agent regulations because mice
vaccinated subcutaneously with the
VEEV strain TC–83 rapidly developed
immunity to subcutaneous or airborne
challenge with virulent VEEV (https://
www.selectagents.gov/sat/exclusions/
overlap.htm). As such, CDC determined
that the attenuated strain did not have
the potential to pose a severe threat to
public health and safety.
As set forth under 42 CFR 73.4(e)(2),
if an excluded attenuated strain is
subjected to any manipulation that
restores or enhances its virulence, the
resulting select agent will be subject to
the requirements of the regulations.
Based on review by subject matter
experts, CDC has determined that a
modification to the excluded attenuated
VEEV vaccine strain TC–83 has been
shown to increase its virulence and
pathogenicity. An adenine (A) at
position 3 in TC–83 has been shown to
contribute to the attenuation of VEEV.
In TC–83(A3G), the A has been changed
to a guanine (G), which is found in all
wild-type isolates of VEEV. The
reversion of this nucleotide mutation to
the wildtype nucleotide resulted in
increased lethality in mice when
compared to mice inoculated with the
vaccine strain TC–83. Additional data
determined that the pathogenic effects
of TC–83(A3G) are more pronounced in
young mice. As such, the modification
of the excluded, attenuated VEEV
vaccine strain TC–83 to create VEEV
strain TC–83(A3G) restores the virus’s
virulence and therefore, VEEV strain
TC–83(A3G) is subject to 42 CFR part
73.
Xavier Becerra,
Secretary, Department of Health and Human
Services.
[FR Doc. 2022–18973 Filed 8–30–22; 4:15 pm]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
49 CFR Part 367
[Docket No. FMCSA–2022–0001]
RIN 2126–AC51
Fees for the Unified Carrier
Registration Plan and Agreement
Federal Motor Carrier Safety
Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule.
AGENCY:
FMCSA amends the
regulations for the annual registration
fees States collect from motor carriers,
motor private carriers of property,
brokers, freight forwarders, and leasing
companies for the Unified Carrier
Registration (UCR) Plan and Agreement
for the 2023 registration year and
subsequent registration years. The fees
for the 2023 registration year would be
reduced below the fees for 2022. The
reduction in annual registration fees
would be between $18 and $17,688 per
entity, depending on the applicable fee
bracket that is based on the number of
vehicles owned or operated by the
affected entity.
DATES: Effective September 1, 2022.
Petitions for Reconsideration of this
final rule must be submitted to the
FMCSA Administrator no later than
October 3, 2022.
FOR FURTHER INFORMATION CONTACT: Mr.
Kenneth Riddle, Director, Office of
Registration and Safety Information,
FMCSA, 1200 New Jersey Avenue SE,
Washington, DC 20590–0001, FMCSAMCRS@dot.gov. If you have questions
on viewing or submitting material to the
docket, call Dockets Operations at (202)
366–9826.
SUPPLEMENTARY INFORMATION:
FMCSA organizes this final rule as
follows:
SUMMARY:
I. Availability of Rulemaking Documents
II. Executive Summary
A. Purpose and Summary of the Regulatory
Action
B. Costs and Benefits
III. Abbreviations
IV. Legal Basis for Rulemaking
V. Discussion of Proposed Rulemaking and
Comments
A. The Proposed Rulemaking
B. Comments Received
C. Reopening of Comment Period
VI. Changes From the NPRM
VII. International Impacts
VIII. Final 2023 State UCR Revenue
Entitlements and Revenue Targets
IX. Section-by-Section Analysis
X. Regulatory Analyses
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A. E.O. 12866 (Regulatory Planning and
Review), E.O. 13563 (Improving
Regulation and Regulatory Review), and
DOT Regulatory Policies and Procedures
B. Congressional Review Act
C. Regulatory Flexibility Act (Small
Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act (Collection of
Information)
G. E.O. 13132 (Federalism)
H. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of
1969
I. Availability of Rulemaking
Documents
To view any documents mentioned as
being available in the docket, go to
https://www.regulations.gov/docket/
FMCSA-2022-0001/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 at U.S. Department
of Transportation, Room W12–140, 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
Regulatory Action
Under the UCR Statute, the UCR Plan
and the 41 States participating in the
UCR Agreement collect fees from motor
carriers, motor private carriers of
property, brokers, freight forwarders,
and leasing companies. The UCR Plan
and Agreement are administered by a
15-member board of directors: 14
appointed from the participating States
and the industry, plus the Deputy
Administrator of FMCSA. Revenues
collected are allocated to the
participating States and the UCR Plan.
In accordance with 49 U.S.C.
14504a(d)(7) and (f)(1)(E)(ii), fee
adjustments must be requested by the
UCR Plan when annual revenues exceed
the maximum allowed. Also, if there are
excess funds after payments to the
States and for administrative costs, they
are retained in the UCR Plan’s
depository, and fees in subsequent fee
years must be reduced as required by 49
U.S.C. 14504a(h)(4). These two distinct
provisions each contribute to the fee
adjustment in this final rule, which
reduces the annual registration fees
established pursuant to the UCR
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Agreement for the 2023 registration year
and subsequent years.
To determine the fee reduction
recommendation for the 2023
registration year, the UCR Plan Board
has estimated future period collections
using an average of the collections of the
past 3 closed years. It also considered
that there has been no change to the
authorized administrative allowance
since 2020 and recommended a modest
increase in the allowance.
B. Costs and Benefits
The changes in this final rule will
reduce the fees paid by motor carriers,
motor private carriers of property,
brokers, freight forwarders, and leasing
companies to the UCR Plan and the
participating States. While each motor
carrier or other covered entity may
realize a reduced burden, fees are
considered by the Office of Management
and Budget (OMB) Circular A–4,
Regulatory Analysis, as transfer
payments, not costs. Transfer payments
are payments from one group to another
that do not affect total resources
available to society. Therefore, transfers
are not considered in the monetization
of societal costs and benefits of
rulemakings.
III. Abbreviations
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APA Administrative Procedure Act
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
DOT Department of Transportation
E.O. Executive Order
FMCSA Federal Motor Carrier Safety
Administration
FR Federal Register
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
OOIDA Owner Operator Independent
Drivers Association
PTA Privacy Threshold Assessment
RFA Regulatory Flexibility Act
RFI Request for Information
SBREFA Small Business Regulatory
Enforcement Fairness Act of 1996
Secretary Secretary of Transportation
UCR Unified Carrier Registration
U.S.C. United States Code
IV. Legal Basis for the Rulemaking
This rule adjusts the annual
registration fees required by the UCR
Agreement established by 49 U.S.C.
14504a. The fee adjustments are
authorized by 49 U.S.C. 14504a because
the total revenues collected for previous
registration years exceed the maximum
annual revenue entitlements of $107.78
million distributed to the 41
participating States plus the amount
established for the administrative costs
associated with the UCR Plan and
Agreement. The UCR Plan Board
submitted the requested adjustments in
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accordance with 49 U.S.C.
14504a(f)(1)(E)(ii), which provides for
the UCR Plan Board to request an
adjustment by the Secretary of
Transportation (the Secretary) when the
annual revenues exceed the maximum
allowed. In addition, 49 U.S.C.
14504a(h)(4) states that any excess
funds from previous registration years
held by the UCR Plan in its depository,
after distribution to the States and for
payment of administrative costs, shall
be retained ‘‘and the fees charged . . .
shall be reduced by the Secretary
accordingly.’’ (49 U.S.C. 14504a(h)(4)).
The UCR Plan Board must also obtain
DOT approval to revise the total revenue
to be collected, in accordance with 49
U.S.C. 14504a(d)(7). This rule grants the
UCR Plan Board’s requested increase in
total revenues to be collected to address
anticipated increased costs of
administering the UCR Agreement. No
changes in the revenue allocations to
the participating States were
recommended by the UCR Plan Board or
authorized by this rule.
The Secretary also has broad
rulemaking authority in 49 U.S.C.
13301(a) to carry out 49 U.S.C. 14504a,
which is part of 49 U.S.C. subtitle IV,
part B. Authority to administer these
statutory provisions has been delegated
to the FMCSA Administrator by 49 CFR
1.87(a)(2) and (7).
The Administrative Procedure Act
(APA) allows agencies to make rules
effective immediately with good cause,
instead of requiring publication 30 days
prior to the effective date. 5 U.S.C.
553(d)(3). FMCSA finds there is good
cause for this rule to be effective upon
publication so that the UCR Plan and
the participating States may begin
collection of fees on and after October
1, 2022, for the registration year that
will begin on January 1, 2023. The
immediate commencement of fee
collection will avoid delay in
distributing the statutory entitlement
revenues to the participating States.
15-member board of directors: 14
appointed from the participating States
and the industry, plus the Deputy
Administrator of FMCSA (49 U.S.C.
14504a(d)(1)(B)(i)–(iv)). Revenues
collected are allocated to the
participating States and the UCR Plan.
(49 U.S.C. 14504a(d)(7), (g), and (h)).
In accordance with 49 U.S.C.
14504a(f)(1)(E)(ii), fee adjustments may
be requested by the UCR Plan when
annual revenues exceed the maximum
allowed. Also, if there are excess funds
after payments to the States and for
administrative costs, they are retained
in the UCR Plan’s depository, and
subsequent fees must be reduced as
required by 49 U.S.C. 14504a(h)(4).
These two distinct statutory provisions
both support the fee reduction
adjustment that was proposed in the
NPRM. The NPRM proposed a reduction
in the annual registration fees pursuant
to a recommendation of the UCR Plan
Board for the 2023 registration year and
all subsequent years until a change in
fees is authorized pursuant to a new
rulemaking by the Agency.
In its August 2021 Recommendation
to FMCSA (the ‘‘August 2021 Fee
Recommendation’’), the UCR Plan Board
estimated future period collections
using an average of the collections of the
past 3 closed years.1 It also
acknowledged that the UCR Plan held
excess fees from prior fee years that
were available to further reduce fees. In
preparing its fee recommendation, the
UCR Plan Board also considered that
there has been no change to the
authorized administrative cost
allowance since 2020 and recommended
a modest increase in the allowance. The
UCR Plan Board recommended that
FMCSA reduce the fees for all fee
brackets by approximately 27 percent,
and FMCSA’s NPRM proposed the fees
as recommended by the UCR Plan
Board.
V. Discussion of Proposed Rulemaking
and Comments
FMCSA solicited comments
concerning the NPRM for 30 days
ending February 23, 2022. By that date,
seven comments were received. This
included the UCR Plan Board of
Directors (UCR Plan Board), OwnerOperator Independent Drivers
Association (OOIDA) (OOIDA’s First
Comment), the Truckers Auditor, a
company, two individuals, and an
anonymous commenter. Both
individuals, the company, anonymous
commenter, and Truckers Auditor all
A. The Proposed Rule
On January 24, 2022, FMCSA
published in the Federal Register at 87
FR 3489 an NPRM titled ‘‘Fees for the
Unified Carrier Registration Plan and
Agreement’’ (Docket No. FMCSA–2022–
0001). The NPRM proposed that the
UCR Plan and the 41 States
participating in the UCR Agreement
establish and collect fees from motor
carriers, motor private carriers of
property, brokers, freight forwarders,
and leasing companies. The UCR Plan
and Agreement are administered by a
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B. Comments Received
1 Available in the docket for this rulemaking at
https://www.regulations.gov/document/FMCSA2022-0001-0001.
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commented in favor of reducing the fees
and in favor of the proposal in general.
During the public comment period, on
February 22, 2022, the UCR Plan Board
submitted a comment to the docket with
a new recommendation for the fees (the
UCR Comment or February 2022
Updated Fee Recommendation),
updating the August 2021 Fee
Recommendation.2 In the UCR
Comment, the UCR Plan Board
recommended a further fee reduction
based upon updated actual collections
and estimated fees. The February 2022
Updated Fee Recommendation
proposed fee reductions of
approximately 31 percent below the
current fees.
After receiving and reviewing the
issues raised in the comments submitted
in response to the NPRM, on March 22,
2022, FMCSA transmitted a request for
information (RFI) to the UCR Plan.3 On
May 9, 2022, the UCR Plan Board
submitted to FMCSA a response
(Information Response or IR) to the
RFI.4 On May 23, 2022, OOIDA, a
commenter responding to the NPRM,
requested an opportunity to comment
on the IR. In a Federal Register notice
published June 14, 2022 (87 FR 35940),
FMCSA reopened the comment period
for 14 days ‘‘for the limited purpose of
allowing comments on the UCR Plan’s
[Information Response].’’ In response to
this notice, OOIDA and a few other
commenters submitted additional
comments on or about June 28, 2022.5
On July 11, 2022, the UCR Plan, relying
on 49 CFR 389.23, submitted an
additional comment responding to
OOIDA’s June 28 comment (‘‘Second
Comment’’).6 FMCSA has considered
this additional information and
comments in accordance with 49 CFR
5.5(a)(1).
1. Compliance With Legal Requirements
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a. UCR Statute
Comment: OOIDA contended that the
proposal would violate the UCR statute
and offered several arguments.7 OOIDA
stated that the proposal does not apply
the ‘‘full $42 million revenue excess’’ to
2 First UCR Plan Board Comment submitted on
Feb. 22, 2022 (February 2022 UCR Plan Board
Recommendation), available at: https://
www.regulations.gov/comment/FMCSA-2022-00010006.
3 Both the RFI and the transmittal to the UCR Plan
are available in the docket for this rulemaking.
FMCSA–2022–0001–010_Attachment_2.pdf and
attachment_3.pdf.
4 Available in the docket for this rulemaking.
FMCSA–2022–0001–010_Attachment_1.pdf.
5 FMCSA–2022–0001–011_Attachment_1.pdf.
6 FMCSA–2022–0001–0116_Attachment_1.pdf.
7 Available in the docket for this rulemaking at
https://www.regulations.gov/comment/FMCSA2022-0001-0008.
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lowering fees. OOIDA also believed that
any excess funds from 2021 should have
been allocated to 2022 fees, not to 2023
fees. OOIDA also stated that the 2020
fees could not be imposed in 2023 (and
also should not be imposed in 2022).
Response: OOIDA’s argument that the
statute requires that 2021 excess funds
should have been reflected in an
adjustment in the fees for 2022 is
discussed in more detail below. The
short answer to this point is that
reflecting such excess funds in the
current adjustment for 2023 is
warranted by the Fee Change
Recommendation Policy adopted by the
UCR Plan Board at its August 13, 2020,
meeting and revised at a meeting on
June 8, 2021. The Policy is in the docket
(Tab K to the Information Response
submitted to FMCSA by the UCR Plan
Board on May 9, 2022). FMCSA finds
that this policy is consistent with a
reasonable interpretation of the relevant
statutory provisions, namely 49 U.S.C.
14504a(d)(7), (f)(1) and (h)(4). FMCSA
has no authority to address OOIDA’s
assertion that the fees should not be
imposed in 2022 because, by statute,
FMCSA proposes and makes UCR fee
adjustments following a
recommendation of the UCR Plan Board,
and no fee adjustment recommendation
was submitted for the 2022 registration
year.
b. Administrative Procedure Act
Comment: OOIDA commented that
the rulemaking did not comply with the
APA because the UCR Plan Board did
not explain in the fee recommendation
how the proposed fees were calculated
or why it complied with the law.
OOIDA further commented that there
was insufficient data or analysis in the
rulemaking docket for the public to
review, understand, and comment on
the recommended fees, and therefore
the rulemaking proceeding did not
comply with the APA. Finally, OOIDA
commented that the UCR Plan Board
did not explain how the proposed fees
were devised or that the fees would
reduce current fees by $22 million in
excess revenues.
Response: The Agency published an
NPRM and shared with the public all
information received from the UCR Plan
Board. The notice-and-comment
rulemaking process was completed in
full compliance with the APA. As a
preliminary matter, the statute
governing the UCR Plan and associated
fees, found at 49 U.S.C. 14504a, sets
forth parameters for the UCR Plan Board
to make fee recommendations, but it
does not require the UCR Plan Board to
explain in every fee recommendation to
the Secretary and FMCSA how the
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recommendation complies with the
statute. The UCR Plan submitted the fee
recommendation in accordance with the
statute.
The UCR Plan’s August 2021 Fee
Recommendation and the Agency’s
subsequent NPRM provided enough
information for OOIDA to provide
meaningful comment, including raising
questions about the calculations. The
August 2021 Fee Recommendation was
in the rulemaking docket and included
the existing fees and the proposed fees
which reflected a reduction of
approximately 27 percent for all fee
brackets. It provided an explanation as
to how the Fee Recommendation was
developed by the Plan, including that
the fee reduction was expected to result
in an under-collection of fees, with the
effect, essentially, of refunding excess
collections in real time to UCR
registrants. The UCR Plan Board also
explained in the August 2021 Fee
Proposal that it had changed the
methodology for projecting future
collections in light of the
overcollections in several registration
years. The APA requires an NPRM to
include ‘‘either the terms or substance
of the proposed rule or a description of
the subjects and issues involved’’ (5
U.S.C. 553(b)(3)). The NPRM complied
with both requirements, and OOIDA
was able to examine and comment on
the issues involved in great detail.
The Agency also notes that an OOIDA
employee is a member of the UCR Plan
Board and is thus a participant in the
organization making the
recommendation. If OOIDA believes
there are procedural or substantive
errors in the UCR Plan Board
submission, OOIDA, as a sitting member
on the Board, should have raised those
deficiencies (and most of the
substantive issues discussed below)
directly with the UCR Plan Board. The
Agency finds no deficiency with the
information submitted or with the
notice provided in the NPRM.
c. Suspending Fees for the UCR Plan
and Agreement Currently in Effect
Would Require a Recommendation
From the Plan and a New Rulemaking
Comment: OOIDA also claimed that
the current fees in effect are higher than
allowed under the statute, because the
fees were authorized for registration
year 2020, and subsequent years have
resulted in excess revenues collected in
the 2020 and 2021 registration years
with no reduction in 2021 and 2022
fees. OOIDA thus contends that FMCSA
must ‘‘immediately suspend’’ the UCR
fees. OOIDA also suggests that the UCR
Plan should apply all excess revenue
collected from prior years to reducing
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the fee scale for registration year 2023
or to refund amounts already paid for
registration year 2022 to fee payers.
Response: By statute, the Secretary
sets the registration fees based on a
recommendation from the UCR Plan
Board and only after providing
opportunity for notice and public
comment. (49 U.S.C. 14504a(d)(7)(B),
14504a(f)(1)(B)). Accordingly, FMCSA
believes that any change in fees,
including suspension of fees, would
require notice and comment rulemaking
pursuant to the APA, with an NPRM
that includes such action within its
scope. The fees currently in effect,
which have been applied to registration
years 2020, 2021, and 2022, were
properly adopted in a final rule for
registration year 2020 and all
succeeding years until a new fee is
adopted. Fees for the United Carrier
Registration Plan and Agreement, 85 FR
8192 (Feb. 13, 2020). No other fee has
been recommended by the UCR Plan
Board or authorized by the Secretary
since the fee for the 2020 registration
year, and subsequent years, was
adopted.
The UCR statute does not authorize
direct refunding of fees after the fees
have been established in a final rule but
does explicitly provide for reduction of
future fees based on excess collections
in prior years. (49 U.S.C. 14504a(h)(4)).
The statute does not provide any
authority for suspension or reduction of
current fees, certainly not without a
rulemaking based on a recommendation
from the UCR Plan Board. The UCR Plan
Board now requests a fee reduction,
which is the subject of this rulemaking.
As addressed more fully elsewhere in
this final rule, collection periods for
each registration year span three
calendar years, and excess or shortfalls
in fees cannot be known, and thus
cannot be applied, for potential fee
changes in the next calendar year.
Instead, excess (or shortfalls in) fees are
applied to adjustments in fees for
subsequent fee years. This creates a
single calendar year gap between fee
adjustments, with odd year collections
available for adjusting (increasing or
decreasing) future odd year fees and
even year collections affecting possible
adjustments to future even year fees.
This is spelled out in the UCR Plan’s
Fee Change Recommendation Policy,
which the UCR Plan Board adopted at
the August 31, 2020, Board meeting, and
revised at the June 8, 2021, Board
meeting.8 FMCSA notes again that
8 Available in the docket for this rulemaking at
https://www.regulations.gov/document/FMCSA2022-0001-0010, titled ‘‘Response of the Unified
Carrier Registration Plan’’, 5–6 (May 9, 2022).
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OOIDA is a voting member of the UCR
Plan Board and was present at the UCR
Plan Board meetings when the Fee
Change Recommendation Policy was
adopted and revised.
2. Fees and Fee Structure
a. The Fee Structure of the UCR Plan
and Agreement Is Progressive
Comment: OOIDA also contended that
the current and proposed fee structure
for the UCR Plan and Agreement is not
‘‘progressive.’’ OOIDA pointed out,
through an elaborate mathematical
exercise, that a carrier with a vehicle
fleet size at the lower end of a fee
bracket will pay less per vehicle than a
carrier at the upper end of the next
lower bracket. OOIDA relied on a
definition of ‘‘progressive’’ that requires
the tax rate to increase when one’s
income increases.9
OOIDA also stated that the fees were
not fairly allocated, and that expected
noncompliance by some who should
pay led to higher fees for those who do
pay. OOIDA suggested that this could be
avoided through better State
enforcement, which it thought FMCSA
and the UCR Plan Board could compel.
OOIDA also requested that FMCSA
adopt a fee structure it deemed
‘‘constitutional’’ that proportionately
divided revenue collections by everyone
required to pay, and also only collecting
sufficient funds to cover entitlement
distributions and administrative costs
(without any reserves).
Response: The starting point for any
analysis of this issue is the statute,
which contains several requirements for
the fee structure. The fees are based
either on the number of commercial
motor vehicles (CMVs) operated by
motor carriers, motor private carriers
and freight forwarders or, for brokers
and leasing companies, on the smallest
fee charged. There must be not less than
four and not more than six fee brackets.
Brackets must be based on the size of
the fleet of CMVs owned and operated.
The fees are recommended to the
Secretary by the UCR Plan Board. The
fee scale shall be progressive in the
amount of the fee. 49 U.S.C.
14504a(f)(1)(A)–(D).
The structure of the fees for the UCR
Plan and Agreement was developed by
the Plan and carefully considered and
9 OOIDA focuses on fee per truck in its analysis,
but the fee is based on the number of CMVs that
are self-propelled (i.e., not including trailers) in the
carrier’s fleet (see 49 U.S.C. 14504a(a)(1)(A)(ii) and
(f)(1)). For its definition of progressive, OOIDA
relies on a paper by an anonymous contributor to
an online tax software product, Intuit TurboTax.
https://turbotax.intuit.com/tax-tips/general/
understanding-progressive-regressive-and-flattaxes/L917X2gBs (retrieved May 19, 2022).
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approved by FMCSA in a 2007 final
rule. Fees for the Unified Carrier
Registration Plan and Agreement, 72 FR
48585 (Aug. 24, 2007). That final rule
explained the need to reflect all the
statutory requirements in the fees and
fee structure, even if in some situations
the result appeared to be inequitable.
For example, it was recognized that the
fee structure must ensure that the fee
scale is progressive across the brackets,
such that the individual carrier fee
increases as the size of the carrier
increases. The fact that a registrant at
the top of one bracket may pay less per
vehicle than a registrant at the bottom
of the next higher bracket is structurally
embedded in the statute. The statute
requires that the ‘‘fee scale shall be
progressive in the amount of the fee’’
(49 U.S.C. 14504a(f)(1)(D)), across at
least four and not more than six fee
brackets, where the brackets are based
on fleet size, (49 U.S.C. 14504a(f)(1)(C)).
The fee scale is clearly ‘‘progressive’’ in
this sense, because the fee scale
increases with each bracket containing a
larger number of CMVs for the motor
carrier entities included. Moreover, the
statute also requires that the fees be
applied uniformly to entities in each
bracket ‘‘based on the size of the fleet.’’
(49 U.S.C. 14504a(f)(1)(C)). For
particular entities, the fee may or may
not be progressive as compared to a
carrier in another bracket that is close in
size, or that has almost the same number
of CMVs in its fleet, but that is an
expected result of the fee scale under
the UCR statute. (72 FR at 48586).
Another appropriate consideration in
determining whether the fees are
progressive is whether the structure
shifts the burden of paying the fees to
those entities most likely to be able to
pay. The fees are also progressive in this
sense because all the motor carriers and
other smaller entities, such as freight
forwarders, brokers and leasing
companies, in the lower brackets
provide a smaller proportion of the total
revenues than the larger motor carriers
in the higher fee brackets. As shown in
the following table, for the 2021
registration year motor carriers with 0–
2 vehicles in their fleet, and brokers,
freight forwarders and leasing
companies paying fees in the same
bracket were 73.02 percent of the total
number of registrants but provided only
23.07 percent of the revenues collected
for the UCR Plan. Entities in bracket 2
(3–5 vehicles in their fleets) were 13.63
percent of the total number of
registrants and provided 12.84 percent
of the revenues. On the other hand, in
the 2021 registration year, motor carriers
with large fleet sizes that placed them
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in the last two brackets provided a
proportionally much larger share of the
revenues. In bracket 5 (101–1000
vehicles in their fleets), the number of
registrants was 0.52 percent of the total
number of registrations, and these
entities provided 19.51 percent of the
revenues. Motor carriers in bracket 6
(1001 or more vehicles) were only 0.03
percent of the total registrants and
provided 9.90 percent of the total
revenues. Very similar distributions of
registered entities and fee revenues are
shown in the table for registration year
2020 and for 2022, to date.
2022 REGISTRATION YEAR
Number of
fee-paying
registrants
UCR fee bracket
1
2
3
4
5
6
Total fee revenue
(0–2 vehicles) .......................................................................................
(3–5 vehicles) .......................................................................................
(6–20 vehicles) .....................................................................................
(21–100 vehicles) .................................................................................
(101–1000 vehicles) .............................................................................
(1001 or more vehicles) .......................................................................
377,390
83,015
60,981
19,322
3,531
208
$22,266,010
14,610,640
21,404,331
23,650,128
20,603,385
11,851,216
Totals ................................................................................................
544,447
114,385,710
Percentage of
fee-paying
registrants
Percentage of
fee revenue
69.32
15.25
11.20
3.55
0.65
0.04
19.47
12.77
18.71
20.68
18.01
10.36
Percentage of
fee-paying
registrants
Percentage of
fee revenue
73.02
13.63
9.83
2.98
0.52
0.03
23.07
12.84
18.48
19.51
16.19
9.90
Percentage of
fee-paying
registrants
Percentage of
fee revenue
69.13
15.26
11.48
3.45
0.64
0.04
19.37
12.76
19.14
20.05
17.62
11.07
2021 REGISTRATION YEAR
Number of
fee-paying
registrants
UCR fee bracket
1
2
3
4
5
6
Total fee revenue
(0–2 vehicles) .......................................................................................
(3–5 vehicles) .......................................................................................
(6–20 vehicles) .....................................................................................
(21–100 vehicles) .................................................................................
(101–1000 vehicles) .............................................................................
(1001 or more vehicles) .......................................................................
481,497
89,859
64,836
19,627
3,416
214
$28,408,323
15,815,184
22,757,436
24,023,448
19,932,360
12,193,078
Totals ................................................................................................
659,449
123,129,829
2020 REGISTRATION YEAR
Number of
fee-paying
registrants
UCR fee bracket
1
2
3
4
5
6
(0–2 vehicles) .......................................................................................
(3–5 vehicles) .......................................................................................
(6–20 vehicles) .....................................................................................
(21–100 vehicles) .................................................................................
(101–1000 vehicles) .............................................................................
(1001 or more vehicles) .......................................................................
376,868
83,211
62,589
18,810
3,466
223
$22,235,212
14,645,136
21,968,739
23,023,440
20,224,110
12,705,871
Totals ................................................................................................
545,167
114,802,508
As shown in the discussion and
analysis above, the fee structure satisfies
the statutory requirement that it be
progressive. The fees increase as the
carriers’ fleet sizes increase, and the fee
amounts place a proportionally larger
burden on those carriers with larger
fleets that are more likely to be able to
pay the fees.10
b. Timing of Fee Adjustments and the
Meaning of ‘‘Fee Year’’
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Total fee revenue
Comment: OOIDA contends that the
fee adjustment is contrary to the statute
(specifically 49 U.S.C.
10 This table is based on information provided by
the UCR Plan in the IR to FMCSA’s RFI, at p. 17
and Tab I. The request and the response have been
posted in the docket.
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14504a(f)(1)(E)(ii)) because, under the
adopted procedures, excess funds are
used to adjust the fees in alternating
calendar years (with a one calendar year
gap). For example, under the UCR Plan
Board’s policy, excess funds collected
for 2021 registrations are used to adjust
the fees in 2023 and fees collected for
2022 registrations will be used to adjust
fees for 2024. OOIDA states that the
statute requires excess fee collections be
used to reduce the fee charged in the
next calendar year.
Response: The statute is ambiguous
because of its use of the term ‘‘next fee
year’’ in section 14504a(h)(4). In
FMCSA’s view, the statute allows an
interpretation of the required timing for
using excess funds to adjust the UCR
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Agreement fees. The UCR Plan’s
procedures, adopted by the UCR Plan
Board, properly establish a 2-calendar
year cycle for each ‘‘fee year.’’ As
OOIDA points out,11 the UCR statute
provides that excess funds must be used
to reduce the fees charged in the next
‘‘fee year.’’ 49 U.S.C. 14504a(h)(4). The
term ‘‘fee year’’ is used only in that one
instance and is undefined by the statute.
Again, without definition, the statute
uses the term ‘‘calendar year’’ in two
instances: once for the limited purpose
of defining commercial motor vehicle
during calendar years 2008 and 2009, 49
U.S.C. 14504a(a)(1)(A)(i), and the
second, for setting forth the allocation of
11 OOIDA’s
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fee payments under the new UCR
Agreement structure, 49 U.S.C.
14504a(g)(2). In five instances, the
statute refers to ‘‘registration year’’ to
explain the counting of the number of
CMVs for registration purposes, (49
U.S.C. 14504a(f)(2), (3)), and setting the
allocation of fee payments under the
new UCR Agreement structure, (49
U.S.C. 14504a(g)(1), (3)). Once more, the
statute does not define ‘‘registration
year.’’ The use of various terms
throughout the statute suggests nuance
between the three, and that the terms
are not unambiguously the same.
The implemented ‘‘fee year’’ timeline
is explained by the UCR Plan Board in
both its Information Response 12 and the
UCR Plan’s Fee Recommendation
Policy,13 which was adopted by the
UCR Plan Board on August 13, 2020,
and revised on June 8, 2021. The
Agency again notes that an OOIDA
representative is a member of the UCR
Plan Board and was present at the Board
meetings when the Fee
Recommendation Policy was adopted
and revised. While phrased differently
in different places, in practice, the
registration year aligns with the
calendar year for that registration.
However, the ‘‘administrative period’’
during which fees are collected (in other
words, the ‘‘fee year’’) spans more than
two calendar years. The ‘‘fee year’’
begins on October 1 of the year prior to
the ‘‘registration year,’’ continues
through the calendar year that is the
‘‘registration year,’’ concluding on
December 31 of the year after the
‘‘registration year.’’ This timeline
provides a 3-month pre-registration
window before the date on which the
fees are due (which is January 1 of the
‘‘registration year’’), as well as an audit
and dispute resolution period in the
calendar year following the registration
year. Moreover, this timeline ensures
sufficient fee collection data to
reasonably and accurately determine
whether fee reductions or increases are
necessary.14 The timeline also provides
a steady and consistent framework for
the UCR Plan Board to calculate and
submit a fee adjustment
recommendation supported by accurate
data to the Secretary, and for FMCSA to
conduct the statutorily required noticeand-comment rulemaking and then
publish a final rule setting the new fees
12 Available in the docket for this rulemaking at
https://www.regulations.gov/document/FMCSA2022-0001-0010, titled ‘‘Response of the Unified
Carrier Registration Plan’’, p. 5.
13 Available in the docket for this rulemaking at
https://www.regulations.gov/document/FMCSA2022-0001-0020, Tab K.
14 Information Response, Docket No. 2022–
FMCSA–0001–0010 at 5–6, and Tab K.
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sufficiently in advance of the start of the
applicable fee year.15 In OOIDA’s
Second Comment (which is addressed at
length below), it continues to miss the
distinction between calendar year and
fee year even while citing the UCR
Plan’s clear explanation of the timeline,
and practical reasons of time and data
collection that led to the distinction.16
Further, in its Second Comment,
OOIDA resumed questioning the
validity of the ‘‘fee year’’ structure
adopted by the UCR Plan Board.17
OOIDA again argued that the fee
schedule does not comply with the
statute and quoted at length from the IR
wherein the UCR Plan Board explained
the need for ‘‘sufficient data’’ on the
actual revenues collected to be able to
make a reasonable projection of the
excess revenues for the registration year
at the end of the fee year.18 OOIDA then
argued that the record held no data on
when in a calendar year sufficient
registration data would be available to
determine future fees with reasonable
accuracy.19 While OOIDA raises an
interesting idea, that perhaps sufficient
data to make excess revenue projections
is available earlier in the year, which in
turn might enable a faster timeline for
fee setting, OOIDA undermines its own
argument by pointing out there is no
data on that very point.20 Although
OOIDA states that it was ‘‘not proposing
that the UCR Plan adopt any specific
procedures that might best comply with
the statute,’’ it speculates that ‘‘one can
easily envision collection and
accounting standards that would better
serve the statute’s requirements.’’ 21 As
a member of the UCR Plan Board,
OOIDA’s comment rings hollow.
Members of the UCR Plan Board are
responsible for implementing the UCR
Agreement in accordance with the
statute. There are challenges to
developing, implementing, and
administering any program; that does
not excuse members of the Board from
speaking up when possible problems are
identified and then working to develop,
offer, and implement solutions.
FMCSA concludes that the UCR
Plan’s alternating calendar-year fee
adjustment schedule, which OOIDA
contests, does comply with a reasonable
15 Available in the docket for this rulemaking at
https://www.regulations.gov/document/FMCSA2022-0001-0010, titled ‘‘Response of the Unified
Carrier Registration Plan’’, p. 5–6, tab K.
16 OOIDA’s Second comment, https://
www.regulations.gov/comment/FMCSA-2022-00010113, p. 12.
17 OOIDA’s Second comment, p. 6–8.
18 OOIDA’s Second comment, p. 7.
19 OOIDA’s Second comment, p. 7.
20 OOIDA’s Second comment, p. 7.
21 OOIDA’s Second comment, p. 8.
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53685
interpretation of all the statutory
requirements. The requirement to adjust
fees in the next ‘‘fee year’’ in section
14504a(h)(4) must be read together with
the provisions of sections 14504a(d)(7)
and 14504a(f)(1)(E)(ii). Those
paragraphs provide the UCR Plan and
the Agency the opportunity, and, indeed
the obligation, to adopt and implement
a statutory interpretation that reflects
the unique circumstances of the
administration of the UCR Agreement.
3. Proper Use of Revenue
a. Reserve Accounts Are an Appropriate
Means of Administering the UCR
Agreement and Are Not Excess Funds
Comment: OOIDA claims that the
UCR Plan is ‘‘not authorized’’ by either
the statute or the UCR Handbook to
establish financial reserve accounts and
allocate funds to such accounts. It
claims that the UCR Plan needs specific
authorization to establish and maintain
such reserve accounts. As a corollary to
this contention, OOIDA claims that the
funds allocated by the UCR Plan to the
reserve accounts over the past several
years should be considered excess funds
and instead be applied to adjust the
fees.
Response: The statute provides that
the UCR Plan is the organization of
State, Federal, and industry
representatives responsible for
developing, implementing, and
administering the unified carrier
registration agreement. 49 U.S.C.
14504a(a)(9). It also includes specific
authority to provide for the
administration of the UCR Agreement
(established by 49 U.S.C. 14504(a)(8),
(9)) by adopting rules and regulations.
49 U.S.C. 14504a(d)(2)(B). In addition,
the UCR Plan Board is authorized to
include in the structure of the fees
charged to motor carriers, freight
forwarders, brokers, and leasing
companies an amount to pay the costs
of administering the UCR Agreement.
(49 U.S.C. 14504a(d)(7)(A)(i)).
Accordingly, within the scope of the
UCR Plan’s statutory responsibility to
administer the UCR Agreement is the
need to adopt and apply appropriate
policies and procedures to manage the
funds collected by the UCR Plan that are
then distributed both to the
participating States and to the UCR Plan
to be applied to the administrative costs
of carrying out the UCR Agreement.
However, a quirk of the statute states
that revenues collected may not be used
to pay administrative costs until all the
participating States have received all
their revenue entitlements. 49 U.S.C.
14504a(h)(3)(B). As a practical matter,
during a registration year, no funds
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collected can be used for current
operations of the UCR Plan in
administering the UCR Agreement until
all the distributions have been made
from the depository to the States that
have not achieved their revenue
entitlements. As a result of complying
with this statutory requirement, at the
beginning of each year’s operations, the
Plan is not receiving any funds
budgeted for the administration of the
UCR Agreement and cannot carry out its
statutory obligations unless funds are
available and held elsewhere.
In order to administer the Agreement
and to address this situation, at a
meeting of the Board of Directors on
December 14, 2017, the UCR Plan
adopted a financial reserve policy,
effective on January 1, 2018, to sustain
financial operations in the
unanticipated event of significant
unbudgeted increases in operating
expenses and/or losses in operating
revenues.22 The financial reserve policy
was adopted without objection or
negative vote from any member of the
Board, including all industry members
and the representative from OOIDA.
With regard to administrative costs, the
policy provides for: (1) a liquidity
reserve to address the lack of operating
cash flow from fee collections during
the registration period while all
revenues are retained by or distributed
to the participating States; (2) a reserve
to address a shortfall in fee collections
such that the participating States do not
receive their revenue entitlements in
full and the UCR Plan does not receive
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Reserve name
any funds for its administrative costs;
and (3) a special or capital projects
reserve to support future large capital
projects.23 The liquidity reserve is
limited to the current year’s operating
budget for administrative costs. The
reserve for any shortfall in revenues is
limited to the operating budget for the
next two years. Funding for the capital
projects reserve requires a majority vote
at a meeting of the UCR Plan Board and
is limited to one-half of any year’s
operating budget.
The funds held in the reserve
accounts by the UCR Plan are set out in
the table below. The data are derived
from the UCR Plan’s statements of
financial position provided in the IR at
Tabs A, B, and C.
Dec. 31, 2020
Dec. 31, 2021
Feb. 28, 2022
Capital ..............................................................................................................................
Unbudgeted Expense ......................................................................................................
Financial ...........................................................................................................................
Insurance .........................................................................................................................
$0
2,500,000
12,000,000
0
$288,575
1,750,000
12,000,000
1,750,000
$288,575
1,750,000
12,000,000
1,750,000
Totals ........................................................................................................................
14,500,000
15,788,575
15,788,575
These reserve funds are a portion of
unrestricted net assets of the UCR Plan
that are available for use in emergencies
to sustain financial operations in the
unanticipated event of significant
unbudgeted increases in operating
expenses and/or losses in operating
revenues. FMCSA finds that this is a
prudent and reasonable use of the funds
available to the UCR Plan to prepare for
and meet potential future events. This is
especially appropriate considering that
due to planned repeated reductions in
fees, there is an increasing possibility
that in upcoming years there may be a
shortfall in the fee revenues. (February
2022 Updated Fee Recommendation at
2.)
Ensuring the availability of reserve
funds to meet possible contingencies is
an appropriate action for the UCR Plan
Board to take in implementing the
statute. As FMCSA found in the 2010
final rule that its responsibilities under
49 U.S.C. 14504a in setting fees for the
UCR Plan and Agreement are guided by
the primacy the statute places on the
need both to set and to adjust the fees
so that they ‘‘provide the revenues to
which the States are entitled.’’ The
statute links the requirement that the
fees be adjusted ‘‘within a reasonable
range’’ to the provision of sufficient
revenues to meet the entitlements of the
The amounts [in reserve accounts] are part
of what the Board holds in reserve to cover
the Plan’s administrative costs for up to three
registration years. As explained in the Plan’s
January 1, 2018 Reserve Fund Policy . . .
these administrative reserves (1) provide
liquidity to the Plan during the current
registration year (since, under the Unified
Carrier Registration Act, participating states
must receive their revenue entitlements in
full before any collected fees are used to pay
the Plan’s administrative costs, 49 U.S.C.
14504a(h)(3)); and (2) safeguard against the
22 Available in the docket for this rulemaking at
https://www.regulations.gov/document/FMCSA2022-0001-0010, Tab 1. The minutes of the
December 14, 2017, meeting are available on the
UCR Plan’s website and have also been posted in
the docket.
23 The UCR Plan Board also later adopted an
insurance reserve to provide contingency funds for
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participating States (49 U.S.C.
14504a(f)(1)(E); see also 49 U.S.C.
14504a(d)(7)(A)(ii)). (Fees for United
Carrier Registration Plan and
Agreement, 75 FR 21993 (Apr. 27, 2010)
at 21995.)
Because the allocation of funds to
reserve accounts by the UCR Plan Board
is proper, these funds are not available
for adjustment of the fees in accordance
with the statute. The statute provides
that the UCR Plan Board and FMCSA
shall consider whether the revenues
generated in the previous fee year and
any surplus or shortage from that or
prior years enable the participating
States to achieve in future registration
years the revenue levels set by the UCR
Plan Board. (49 U.S.C.
14504a(d)(7)(A)(ii)). As the Plan
explained in the Information Response
(at 4, note 2):
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contingency that the Plan’s collection of fees
for a given registration year under the extant
fee schedule produces a revenue shortfall
(i.e., collections do not exceed the total
revenue entitlement for participating states),
which means that the Plan receives no funds
to cover its administrative costs for that year,
and the Board can rectify the problem only
by recommending that the Agency increase
the fees in a future registration year.
The funds allocated to the reserve
accounts, as part of the administrative
costs of administering the UCR
Agreement, are not available for
reducing the fees, as the UCR Plan
correctly states. (49 U.S.C.
14504a(h)(3)(B)). The reserved funds are
not ‘‘excess funds’’ within the meaning
of section 14504a(h)(4). OOIDA’s
assertion that the funds in the reserve
accounts are excess funds to be used to
reduce the fees is therefore without
merit.
b. Lawfulness and Oversight of UCR
Plan and UCR Plan Board Expenses
Comment: OOIDA also challenged the
lawfulness of the proposed fees for the
2023 registration year because, it
argued, the UCR Plan Board has
authorized excessive administrative
expenses, has improperly expended
money engaging in enforcement
activities, and has unfairly focused on
the self-insurance plan for its officers and directors.
See minutes of UCR Plan Board meeting of
December 10, 2020, available in the docket for this
rulemaking.
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enforcement on motor carriers. As
examples of unlawful administrative
expenses, OOIDA cited the use of
outside contractors to aid in carrying
out the UCR Agreement, to support inperson meetings of the UCR Plan Board,
and for other expenses. In support of the
claim that the UCR Plan Board has
improperly expended funds on
enforcement efforts, OOIDA asserted
that the UCR Plan Board’s authority is
limited to administering funds collected
and distributed to states under the UCR
statute. OOIDA further asserted that the
Board has no authority to write rules,
conduct enforcement related activities,
or spend UCR fee revenues to improve
enforcement. OOIDA also contended
that only the States may engage in any
enforcement efforts, and that such effort
is allowed by the UCR statute, but not
required. OOIDA asserted that to
comply with the UCR statute, FMCSA
must review the appropriateness of UCR
administrative expenses before
approving updated UCR Agreement
fees.
Response: FMCSA agrees with OOIDA
that the Agency can consider the
appropriateness of the costs incurred by
the UCR Plan Board. Section
14504a(d)(7)(A)(i) explicitly states that
the UCR Plan Board and the Secretary
must consider the administrative costs
of the UCR Plan and UCR Agreement in
setting the fee level. However, the
Agency has no evidence that any of the
costs identified by OOIDA are improper
or fall outside the bounds authorized by
the UCR statute.
Preliminarily, OOIDA’s comment
misunderstands or misstates the
authorities granted and reserved in the
UCR statute. The statute provides that
the UCR Plan is responsible for
developing, implementing, and
administering the UCR Agreement. (49
U.S.C. 14504a(a)(9)). The UCR
Agreement is the agreement developed
by the UCR Plan for governing the
collection and distribution of fees paid,
registration, and financial responsibility
information by regulated entities. (49
U.S.C. 14504a(a)(8)). Reading its
requirements together, the UCR statute
establishes a framework that presumes
compliance via the payment of fees and
efforts at ensuring compliance. (49
U.S.C. 14504a(f)(4)). Contrary to
OOIDA’s assertion that the UCR Plan
Board’s authority to issue rules and
regulations is expressly limited by the
statute, the provision OOIDA cited
instead directs items for which the UCR
Plan must issue rules and regulations.
(49 U.S.C. 14504a(d)(2)). The statute
says the UCR Plan Board ‘‘shall’’ issue
rules and regulations to govern the UCR
Agreement and that those rules and
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Jkt 256001
regulations ‘‘shall’’ include the items
that follow. (49 U.S.C. 14504a(d)(2)).
The rules and regulations the UCR Plan
Board must issue include providing for
the administration, in other words, the
functioning, carrying out, or operation,
of the UCR Agreement. (49 U.S.C.
14504a(d)(2)(B)). This explicitly
includes procedures for amending the
UCR Agreement and obtaining
clarification of any provision of the UCR
Agreement but does not preclude or
prohibit other rules or regulations that
‘‘provide for the administration’’ of the
UCR Agreement. (49 U.S.C.
14504a(d)(2)(B)).
The additional enforcement
provisions in section 14504a(i) relate to
specific legal mechanisms and
proceedings by other governmental
entities to enforce the UCR Agreement
but have no impact on efforts by the
UCR Plan and the UCR Plan Board to
ensure, or improve, compliance with the
UCR Agreement, which is required by
statute. Indeed, ensuring and improving
compliance fall squarely within the
purpose of the UCR Agreement and the
responsibilities of the UCR Plan Board.
Moreover, contrary to the assertion that
section 14504a(i)(4) reserves
enforcement solely to the participating
States, section 14504a(i) begins by
explicitly providing for civil lawsuits to
be brought by the Attorney General of
the United States to compel compliance.
The provision OOIDA cites regarding
State enforcement authority simply
makes clear that State enforcement
jurisdiction is not precluded by such
Federal jurisdiction and the UCR
statute. This provision does not
preclude the UCR Plan from assisting
the participating 41 States in improving
compliance with the requirements of the
UCR statute and the UCR Agreement.
FMCSA agrees that much of the
enforcement programing by the States
has been focused on motor carriers.
However, that does not inherently make
it unfair. Motor carriers make up the
vast majority of potential fee-payors in
the UCR Agreement. It is not
unreasonable that the UCR Plan and
UCR Plan Board would first target
compliance efforts at the largest group.
As evidence of alleged unfair
enforcement efforts directed at motor
carriers OOIDA pointed to a report to
the UCR Plan Board about the efforts to
increase State UCR enforcement.24 To
gain a fuller picture, in the RFI
questions the Agency requested
information about all enforcement
initiative proposals received by the UCR
24 Exhibit 1 of the first OOIDA comment available
at https://www.regulations.gov/comment/FMCSA2022-0001-0008.
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53687
Plan or UCR Plan Board since the start
of 2020.25 In response, the UCR Plan
provided details on four enforcement
proposals: (1) adding an Auditor/
Enforcement Manager position,
proposed by the UCR Plan Board Audit
Chairperson; (2) mailing postcards to
unregistered motor carriers, proposed by
the UCR Plan Executive Director; (3)
engaging a contractor to conduct three
pilot programs targeting unregisteredand new-entrant motor carriers
domiciled in non-participating States
and roadside violations audits,
proposed by the UCR Plan Executive
Director and the outside contractor; and
(4) developing, hosting, and maintaining
a centralized International Registration
Plan (IRP) fee calculator, proposed by
the UCR Plan Executive Director.26 The
first three proposals were discussed at
UCR Plan Board meetings and adopted.
The fourth proposal was discussed at a
UCR Plan Board meeting, and approval
was given to engage in discussions with
the IRP (which rejected the idea).27 The
UCR Plan noted in its response that the
only mechanism for receiving
suggestions and proposals is through the
diverse UCR Plan Board membership
and the UCR Plan itself.28 The UCR Plan
has no employees and is staffed by
contractors engaged by the UCR Plan
Board under its statutory authority.
In response, OOIDA complained that
the UCR Plan had not provided a
complete response and proceeded to list
five items that were all non-responsive
to FMCSA’s original RFI question,
which sought information on proposals
or suggestions submitted to the UCR
Plan.29 In the one item close to on-point,
OOIDA raised concerns that the UCR
Plan and UCR Plan Board were
consistently not doing enough to
enforce UCR fee compliance by brokers,
freight forwarders, and leasing
companies, and OOIDA even provided
exhibits of emails and meeting minutes
as evidence that its concerns were being
deliberately ignored.30 Contrary to
OOIDA’s assertion of being ignored,
however, the email chain shows other
UCR Plan Board members and FMCSA
working together to answer questions
and attempt to identify the root of the
problem of non-compliance by these
25 See
FMCSA RFI, Q9.
Second UCR Plan Board response available
at https://www.regulations.gov/comment/FMCSA2022-0001-0116 on p. 27–30 (Q9).
27 The UCR Plan Board RFI response available at
https://www.regulations.gov/comment/FMCSA2022-0001-0116 on p. 27–30 (Q9), and OOIDA’s
June 28 comment available at https://
www.regulations.gov/comment/FMCSA-2022-00010113, p. 18–19.
28 UCR Plan RFI Response, p. 27 (Q9).
29 OOIDA’s Second comment, p. 15–17.
30 OOIDA’s Second comment, p. 16, Ex. A.
26 The
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non-motor carrier entities.31 A
significant number of new brokers have
entered the industry in the last few
years. But brokers do not operate CMVs
and are therefore not subject to roadside
inspections that would disclose whether
they have paid UCR fees. The most
recent data from FMCSA and the UCR
Plan shows that there are 24.615 active
brokers registered at FMCSA, compared
to the 22,508 mentioned in OOIDA’s
First Comment. FMCSA appreciates the
difficulties that the UCR Plan has
experienced in obtaining compliance by
the significant number of brokers that
have entered the industry recently. In
any event, the impact of noncompliance by brokers is minimal. Even
if all of the 15,538 non-compliant active
brokers paid the established fees in
either 2022 or during the upcoming
2023 registration year, the revenue
contributed would be less than 1
percent.32 The UCR Plan Board has
approved several initiatives presented
by its contractors to assist the States in
improving compliance by the large
number of new brokers, and FMCSA
expects that these efforts to improve
compliance by brokers with be
successful.
However, while OOIDA notes that
enforcement towards brokers, freight
forwarders, and leasing companies
would ‘‘require some creativity, careful
thought, and actual effort, since
enforcement of these entities cannot be
carried out via roadside inspections,’’
the record provides no evidence that
OOIDA has offered any proposals or
suggestions for pilots or programs that
could provide a solution. OOIDA
concludes the section complaining
about the pilots and initiatives
undertaken by the UCR Plan Board and
assails the Plan’s Executive Director for
improperly engaging in enforcement
efforts. FMCSA notes that not all pilot
programs will be successful but are
tests, to try something new and see if it
works. Upon the available record, the
efforts of the UCR Plan’s Executive
Director might more accurately be
viewed as those of an engaged
organizational leader researching and
developing potential solutions and
presenting solution proposals to the
Board of Directors, which oversees the
UCR Plan’s work and has the authority
to remove him should he fail to
adequately achieve the Board’s goals.
The Agency notes that OOIDA objects
that insufficient enforcement efforts are
31 OOIDA’s
28Second comment, p. 16, Ex. A.
analysis is based on data presented to the
UCR Plan Board at a meeting on August 11, 2022.
When this data is made available in the minutes of
the meeting, it will be added to the docket.
32 This
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targeted at brokers, freight forwarders,
and leasing companies, yet OOIDA
(unlike other industry members of the
UCR Plan Board) did not support
initiatives intended to improve
compliance among this group.33
Further, based on the information
provided by both OOIDA and the UCR
Plan, OOIDA has not offered specific
solutions, pilot programs, or projects to
address the issue that all parties seem to
agree is a problem.34 FMCSA does not
see any improper expenditures of funds
for enforcement activities in any of the
materials submitted, nor any
contravention of the UCR statute on
such matters. The Agency also observes
that OOIDA inconsistently objects to the
UCR Plan’s use of administrative funds
to support efforts by the participating
States to enforce compliance with
registration requirements while
simultaneously complaining about the
alleged lack of such compliance.
Elsewhere OOIDA expressed concern
that fees are too high because of
insufficient compliance and
enforcement, but the association also
objected to the Plan’s efforts to improve
UCR Agreement compliance through
education and training by UCR
contractors. OODIA cannot have it both
ways. The UCR statute explicitly
authorizes the UCR Plan Board to
‘‘contract with any person or any agency
of a State to perform administrative
functions required under the unified
carrier registration agreement.’’ (49
U.S.C. 14504a(d)(6)). The programs
administered by all of the UCR
contractors, including the operator of
the online national registration system,
have been implemented on behalf of,
and at the direction of, the UCR Plan
Board, and will result in greater feepaying compliance generally. As more
revenues are collected due to increased
compliance, future UCR fees will be
further reduced. Indeed, the 2010 final
rule set targets for compliance by the
States in order to justify the increased
fees adopted. (75 FR 21993 at 22003).
It is also important to recognize that
100 percent compliance is not feasible
for motor carriers and other entities
such as brokers and freight forwarders,
as FMCSA recognized in the 2010 final
rule. The fee structure and fee levels
were established in that final rule based
on a compliance rate of 86.42 percent.
(75 FR at 21997) The UCR Plan’s
support of the enforcement efforts by
the States is an important element for
ensuring compliance with the
registration and fee payment
requirements set out in the statute.
33 OOIDA’s
Second comment, p. 16, Ex. A, Ex. B.
34 OOIDA’s Second comment, p. 16, Ex. A, Ex. B.
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Finally, OOIDA asserted in its
comment that certain UCR Plan Board
spending is inappropriate. Specifically,
OOIDA objects to UCR Plan Board
members’ travel to Board meetings in
different locations and other efforts to
increase awareness in the industry (such
as hats and shirts bearing the UCR logo)
and the States (particularly the 10 nonparticipating jurisdictions) about the
Plan and the registration requirements
imposed by the statute. The UCR statute
specifies that the UCR Plan Board must
meet at least once per year, and
additional meetings may be called by
the Board’s Chairperson, a majority of
the directors, or the Secretary. (49
U.S.C. 14504a(d)(4)). The UCR statute
further explicitly requires that all
directors on the UCR Plan Board be
reimbursed for those travel expenses.
(49 U.S.C. 14504a(d)(3)(B)). OOIDA
submitted a copy of the UCR Plan
Board’s proposed meeting schedule for
2022 seemingly to show the misuse of
UCR Agreement money.35 However, the
planned schedule showed three planned
Board meetings by teleconference and
five at locations around the country.
Similarly, subcommittee meetings were
planned throughout 2022, with eleven
scheduled via teleconference and seven
in-person around the country (two of
which were in conjunction with full
UCR Plan Board meetings in the same
location). The Agency is mindful that
open public meetings held at different
locations around the country provide an
opportunity to increase awareness of the
UCR Plan and its activities, and to
enhance State enforcement with on-site
training. These are common practices
for national groups with geographically
disbursed membership, and OOIDA has
provided no data to support a decision
that these expenditures are improper,
excessive, or beyond the authority
explicitly granted in the UCR statute.
Indeed, the statute expressly provides
that, even though board members do not
receive any compensation from the U.S.
government, board members and
subcommittee members are reimbursed
for travel expenses. (49 U.S.C.
14504a(d)(3)). This clearly indicates that
in-person meetings at convenient
locations are contemplated by the
statute for all board members, including
the OOIDA representative.
In OOIDA’s Second Comment it
explicitly challenged, for the first time,
the proposed $250,000 UCR Plan budget
increase contained in both the UCR Plan
Board’s August 2021 Fee
Recommendation and February 2022
35 OOIDA’s First Comment, Ex. K. In any event,
FMCSA understands that the UCR Plan is reducing
the number of planned in-person meetings for 2023.
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Updated Fee Recommendation, and it
challenged the UCR Plan Board’s
description of ‘‘cost escalations of
various vendors’’ as ‘‘questionable.’’ 36
In calling this budget increase request
into question OOIDA noted that the
UCR Plan has not fully used its
authorized budget in recent years.
However, the Agency cannot ignore the
recent inflation occurring in the U.S.
and global economy.37 The reason
provided for the requested increase is
anticipated increased costs. Particularly
given the high inflation rates earlier this
year, nothing in the record credibly calls
into question the UCR Plan Board’s
request for additional funds due to
anticipated increased costs in the next
registration year. Moreover, the most
recent allowance of administrative costs
of $4,000,000 is a significant reduction
from the $5,000,000 allowance initially
approved in 2007. See Fees for Unified
Carrier Registration Plan and
Agreement, 72 FR 48585, 48587 (Aug
24, 2007) (adopting proposal from
NPRM, 72 FR 29472, 29474 (May 29,
2007)). In setting the UCR fees, the
Secretary is required by statute to
consider the costs associated with
administering the UCR Plan and UCR
Agreement and upon this record has
determined that the proposed UCR Plan
budget increase of $250,000, or 6.25
percent, is appropriate and lawful.
FMCSA has reviewed the
appropriateness of the expenses
authorized by the UCR Plan Board and
questioned by OOIDA, as well as the
requested increase in funds for the
upcoming registration year. Upon this
review, the Agency finds no evidence
that the expenditures and requested
budget increase exceed the authority
established in the UCR statute.
Finally, the Agency must address
OOIDA’s contentions regarding
contractors working for the UCR Plan
Board and the UCR Plan’s Executive
Director. The statute explicitly allows
the UCR Plan Board, upon which a
representative of OOIDA sits, to enter
into contracts with any person or State
agency to carry out administrative
functions under the UCR Agreement, so
long as the UCR Plan Board retains its
decision or policy-making
responsibilities. (49 U.S.C.
14504a(d)(6)). OOIDA inaccurately
accused the UCR Plan Executive
Director of improperly answering the
Agency’s RFI questions on behalf of the
UCR Plan Board. The UCR Plan
submitted an additional comment on
July 11, 2022, that fully explained the
Executive Director’s role in submitting
the Information Response requested by
FMCSA:
The preparation of the responses was thus
purely an administrative task for the Plan,
appropriately delegated to and overseen by
. . . the Executive Director. The responses
referred back to and supported the Board’s
August 26, 2021 and February 22, 2022 fee
change recommendations to the Agency; they
did not change those recommendations in
any way. The responses also referred the
Agency to policies that the Board had duly
voted on and passed (i.e., the January 1, 2018
Reserve Fund Policy and the June 8, 2021 Fee
Change Recommendation Policy, (Docket ID
FMCSA–2022–0001–0010, at Tabs I and K,
respectively)); they did not articulate or rely
on any new or updated policy that would
have required Board approval.
As a member of the UCR Plan Board,
OOIDA has the opportunity to engage in
the oversight of the UCR Plan and the
development, implementation, and
administration of the UCR Agreement.
However, OOIDA expressed concern
that ‘‘volunteer Board members do not
have sufficient time to provide detailed
oversight’’ of the various contractors.38
FMCSA is unable to address these
concerns, as the UCR statute establishes
the structure wherein an unpaid Board
of Directors implements and oversees
the UCR Agreement and UCR Plan. (49
U.S.C. 14504a(a)(8)–(9), (d)(3), (d)(7)).
However, FMCSA urges all members of
the UCR Plan Board to become
knowledgeable about their individual
and collective duties as members of the
UCR Plan Board and to personally
assess, periodically, whether they have
the time and ability to fulfill those
obligations.
4. Issues Beyond the Scope of This
Rulemaking
Comment: OOIDA commented about
what it contends are FMCSA’s past
incorrect actions or inactions. OOIDA
stated that FMCSA should have taken
action to adjust the fees for 2021 and
2022.
Response: These concerns, insofar as
they might involve the fees that were in
effect in 2021 and 2022 (as maintained
in effect by 49 CFR 367.60) are beyond
the scope of this proceeding, which
involves a recommended fee adjustment
for 2023.
C. Reopening of Comment Period
As discussed above, on March 22,
2022, FMCSA sent an RFI to the UCR
Plan. On May 9, 2022, the UCR Plan
provided an IR with the additional
responsive information to FMCSA,39
38 OOIDA’s
36 OOIDA’s
Second comment, p. 11.
37 https://www.washingtonpost.com/business/
2022/07/13/inflation-june-cpi/.
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Second comment, p. 2.
request and the response are available in
the docket at https://www.regulations.gov/
document/FMCSA-2022-0001-0010.
39 The
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which was posted to the public docket.
Thereafter OOIDA requested an
extension of the comment period,40 and
on June 14, 2022, FMCSA announced
the reopening of the public comment
period in a Federal Register notice 41
(87 FR 35941) with comments due June
28, 2022. FMCSA reopened the NPRM
comment period for the limited purpose
of allowing comments on the UCR
Plan’s IR (87 FR 35940, June 14, 2022).
Comments During the Reopened
Comment Period
By the close of the reopened comment
period on June 28, 2022, more than 100
comments were received, including
OOIDA’s Second Comment, and
comments from the Western States
Trucking Association. The UCR Plan
Board submitted a late comment on July
11, responding to OOIDA’s Second
Comment, which FMCSA has
considered, along with other
submissions made after the comment
period, in accordance with 49 CFR
5.5(a)(1). To the extent that comments
OOIDA made in its Second Comment
were directly relevant to the preceding
discussion, those comments have
already been addressed and will not be
repeated here. The remaining issues in
OOIDA’s Second Comment are
addressed below.
Several of these comments contained
similar language, and one included the
full appeal an organization made to its
members, which contained the language
that was repeatedly submitted by other
commenters. There were several
identical comments submitted that were
not germane to this rule, as they
discussed or criticized the UCR Plan as
a program and go far beyond the scope
of the proposal at hand. Many, if not all
such comments, were addressed to
matters that would require a statutory
change.
OOIDA’s Second Comment is farranging in scope, and the Agency has
determined it would be useful to
address the issues and concerns raised.
Despite the objections voiced in
OOIDA’s Second Comment, the UCR
Plan Board has complied with the law
in providing the 2023 fee reduction
recommendation. Further, many of the
issues OOIDA raised in its Second
Comment were out of scope for this
comment period and, also, are not
within FMCSA’s authority to address
under the UCR statute. In recurring
objections to the UCR Plan Board’s
40 Available in the docket at https://
www.regulations.gov/document/FMCSA-2022-00010011.
41 Available in the docket at https://
www.regulations.gov/document/FMCSA-2022-00010012.
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proposed downward fee adjustment of
nearly 31 percent, OOIDA’s comment
conveys significant criticisms of the
UCR statute and OOIDA’s displeasure
with both the UCR Plan’s business
accounting practices, and the duties and
time commitment involved with Board
membership. Some of OOIDA’s
comments also indicate that it may not
fully understand the legal obligations of
volunteer members of a Board of
Directors to collectively manage and
conduct oversight of an organization.
The Agency now addresses the issues
raised in OOIDA’s Second Comment.
Comment: OOIDA complained that
UCR Plan Executive Director did not
address the legal arguments OOIDA
made in its First Comment.
Response: Again, this comment is out
of scope. However, in this instance, the
Agency has determined that a response
is appropriate. OOIDA fails to recognize
that FMCSA did not ask the UCR Plan
to provide that information in the RFI
questions. FMCSA only sought UCR
Plan data and information that was
factual and administrative in nature that
would further enhance the
administrative record for this
rulemaking. Substantively, as discussed
above regarding OOIDA’s First
Comment, the UCR Plan Board has
adopted schedules and procedures that
comply with the framework established
by the UCR statute.
Comment: OOIDA asserted that the
UCR Fee adjustment is the government’s
only real oversight authority over the
UCR Plan, without which, ‘‘the
administration of the UCR Plan is left
entirely to its contractors.’’
Response: Again, this comment is out
of scope. However, in this instance, the
Agency has determined that a response
is appropriate. It appears, through this
comment, that OOIDA does not fully
understand the role of the UCR Plan nor
acknowledge or accept the authority and
responsibility of the UCR Plan Board,
upon which OOIDA holds a seat. By
statute the UCR Plan Board may
contract with individuals to carry out
the work of the UCR Plan and
underlying UCR Agreement, including
administrative tasks. It is the statutory
responsibility of the UCR Plan Board to
conduct oversight of the UCR Plan and
its contractors.
Comment: OOIDA took issue with the
Agency’s 14-day re-opening of the
comment period and noted the statutory
timeline for FMCSA to publish the Fee
Adjustment Final Rule is 90 days from
receipt of the UCR Plan Board’s
recommendation.
Response: Again, this comment is out
of scope. However, it raises procedural
issues, and, in this instance, the Agency
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has determined that a response is
appropriate. FMCSA is aware of the
statutory provision setting the deadline
to issue fee adjustments following
receipt of a UCR Plan Board
recommendation. See 49 U.S.C.
14504a(d)(7). That provision requires
notice and comment rulemaking and
directs that fees be set within 90 days
of receiving the Board’s
recommendation. See 49 U.S.C.
14504a(d)(7)(B). FMCSA also recognizes
that the UCR fee collection schedule,
adopted and implemented by the UCR
Plan Board and UCR Plan, is best
administered if FMCSA’s fee adjustment
rulemaking is finalized sufficiently in
advance of the opening of a new UCR
fee collection window, or ‘‘fee year,’’
which opens October 1 of each year.
FMCSA acknowledges that it was
slow to initiate this rulemaking. FMCSA
did not anticipate that, unlike previous
UCR fee reduction rulemakings, this
nearly 31 percent fee reduction would
be contested and controversial. FMCSA
is committed, whenever possible, to
ensuring that UCR fees are finalized and
published sufficiently in advance of the
opening of the registration fee collection
window to provide certainty to
registrants, the UCR Plan Board, and the
participating States that have statutory
rights to UCR revenues.
Comment: OOIDA reasserted its
contention that the UCR Plan Board’s
adoption of policies establishing reserve
funds exceeds the authority granted in
the UCR statute. Further, OOIDA
reasserted that the alternating year
schedule for a UCR ‘‘fee year’’ violates
the UCR statute.
Response: Again, this comment is out
of scope. However, in the interest of
thoroughness, the Agency has
determined that in this instance a
response is appropriate. The Agency
responds that both issues were
previously raised in OOIDA’s First
Comment and substantively addressed
by FMCSA above.
Comment: In response to the UCR
Plan’s IR answers addressing FMCSA’s
RFI Questions 1 and 2, OOIDA
reasserted the claim from its First
Comment that the UCR Plan was
improperly holding excess funds in
violation of the UCR statute.
Response: OOIDA’s discussion of
these UCR Plan responses restates
arguments previously raised and does
not provide new information. The
comments do not enhance the Agency’s
understanding of the issue at hand. The
issues raised regarding accounting,
availability of funds for an adjustment
in a specific fee year, and the legality of
a reserve fund policy are all addressed
above in response to OOIDA’s First
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Comment, and nothing in OOIDA’s
Second Comment alters that analysis.
Comment: In response to the UCR
Plan’s IR answers addressing FMCSA’s
RFI Question 3, OOIDA contests for the
first time the UCR Plan Board’s
proposed budget increase of
$250,000.00 for the UCR Plan. OOIDA
also reiterates arguments it previously
raised, and FMCSA has addressed, that
contest the Board’s authority to
establish a ‘‘fee year’’ based on
alternating calendar years.
Response: OOIDA’s objection to the
requested UCR Plan budget increase is
untimely. Nonetheless, FMCSA has
addressed the argument substantively in
the discussion above of OOIDA’s First
Comment regarding the ‘‘Lawfulness
and Oversight of UCR Plan and UCR
Plan Board Expenses.’’ Similarly, in
Response to OOIDA’s First Comment,
FMCSA has already addressed the UCR
Plan Board’s authority to establish the
alternating calendar year schedule for
establishing ‘‘fee years’’ under the
statute.
Comment: In response to the UCR
Plan’s IR answers addressing FMCSA’s
RFI Question 4, OOIDA argued that the
UCR Plan response did not follow
FMCSA’s directions to use plain
language that could be understood by a
non-technical audience.
Response: OOIDA’s comment is nonsubstantive, but for the sake of
completeness, FMCSA will address it.
The issues being discussed are technical
in nature and require some technical
language. However, to aid readers
without technical training, FMCSA
sought to obtain through RFI number
four data, with a corresponding
‘‘narrative explanation,’’ to more clearly
lay out what the UCR Plan Board was
requesting and how the numbers and
data supported that request. The Agency
directed the UCR to avoid ‘‘shorthand,
abbreviations, or acronyms,’’ as these
queues may not be readily understood
by those not active on the UCR Plan
Board or employed in math-related
fields. The UCR response satisfied the
request to further explain the data in the
Fee Calculations spreadsheet.
Comment: In response to the UCR
Plan’s IR answers addressing FMCSA’s
RFI Question 5, OOIDA reiterated its
contention that the UCR Plan Board
cannot implement a ‘‘fee year’’ schedule
that differs from a ‘‘calendar year.’’
Response: This comment is redundant
with arguments made in OOIDA’s First
Comment. Accordingly, the Agency has
substantively addressed it above in the
response under the heading ‘‘Timing of
Fee Adjustments and the Meaning of
‘‘Fee Year.’’
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Comment: In response to the UCR
Plan’s IR answers addressing FMCSA’s
RFI Questions 6 and 7, OOIDA noted
that the UCR Plan had already collected
fees for the 2022 registration year that
surpassed the revenue needed to fulfill
the UCR Agreement’s statutory
obligations, and that the UCR Plan had
provided the requested information.
Response: In the sixth and seventh
RFI questions, which sought revenues
and registrants broken down by UCR
Fee brackets, FMCSA sought to gather
data to examine the claim in OOIDA’s
First Comment that the fees are not
adequately ‘‘progressive’’ as required by
statute. OOIDA did not recognize the
Agency’s effort on this point, as
evidenced by OOIDA’s (incorrect)
assertion that the Agency did not seek
information on this topic in the RFI. See
OOIDA’s Second Comment, pg. 22.
To the extent these comments relate
to the argument in OOIDA’s First
Comment, that the fees are not
progressive as required by statute, the
Agency has addressed the issue
substantively above.
Regarding OOIDA’s assertion that the
fees collected for the 2022 registration
year have already exceeded the UCR’s
statutory obligations, as discussed
above, the UCR statute explicitly
contemplates the possibility of
overcollection of UCR fees and
subsequent adjustments of fees in the
next ‘‘fee year,’’ which has lawfully
been established as the second, or
alternating, calendar year.
Comment: In response to the UCR
Plan’s IR answers addressing FMCSA’s
RFI Question 8, OOIDA contended that
the data provided by the UCR Plan
demonstrated the consistent underenforcement of UCR fees against
brokers, freight forwarders, and leasing
companies, and resulted in
‘‘indefensibly higher’’ fees for motor
carriers. The UCR Plan’s IR response
showed total freight forwarder and
broker registrations for 2020 as 22,638,
and for 2021 as 29,476. OOIDA next
referred to its First Comment to say that
there were 22,508 freight forwarders and
brokers registered with the Agency in
calendar year 2020 (based on the date of
emails in OOIDA’s Ex. L). OOIDA again
complained that enforcement efforts are
unfairly focused on motor carriers.
Response: According to the numbers
provided, the UCR Plan collected fees
from more than 100% of FMCSA’s
registered brokers and freight forwarders
for calendar year 2020. This is clearly an
issue that deserves further attention
from all parties. However, the data and
information provided does not support
OOIDA’s claim of egregious undercompliance and under-enforcement of
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UCR fee payment by freight forwarders
and brokers. FMCSA also notes that
adding the numbers OOIDA cited (see
OOIDA’s First Comments, Ex. L)
regarding freight forwarder and broker
registrations produces a total of 22,587
registered entities, not 22,508 as OOIDA
asserted.
OOIDA’s repeated complaint that
enforcement efforts unfairly target motor
carriers is addressed above in response
to its First Comment.
Comment: In response to the UCR
Plan’s IR answers addressing FMCSA’s
RFI Question 9, OOIDA asserted that the
UCR Plan response was incomplete.
OOIDA then provided a listing and
discussion of items that it presumably
believed were responsive to the
question asked.
Response: OOIDA’s comment
responding to the UCR Plan’s response
to the ninth RFI question was largely
non-responsive but is otherwise
addressed above in the section entitled
‘‘Lawfulness and Oversight of UCR Plan
and UCR Plan Board Expenses.’’ In
short, OOIDA complains that the UCR
Plan unfairly focuses enforcement on
motor carriers. Yet the available record
does not show any meaningful efforts by
OOIDA to use its position on the UCR
Plan Board to suggest and advocate for
pilots or programs to improve
enforcement targeting non-MC
registrants.
Comment: OOIDA also raised, for the
first time, the idea that the UCR Plan
Board may not consider any matter
unless it has first been considered by
the Industry Advisory Subcommittee
(IAS) and the IAS has provided a
recommendation to the Board. OOIDA
contended that any action by the UCR
Plan Board that was not first considered
by the IAS was contrary to law and thus
invalid. OOIDA contends that the IAS
had lapsed after the prior Chairperson
stepped down, that the UCR fee
adjustment recommendations had thus
not been considered by the IAS, and
therefore any fee adjustment would be
unlawful. In support, OOIDA cited 49
U.S.C. 14504a(d)(5)(A), which states
that the UCR Plan Board must appoint
an IAS and that the IAS ‘‘shall consider
any matter before the board and make
recommendations to the board.’’ 49
U.S.C. 14504a(d)(5)(A). OOIDA further
complained that every other UCR Plan
Board subcommittee is statutorily
required to have at least one member
representing the motor carrier industry,
49 U.S.C. 14504a(d)(5)(D), but that in
practice, this is not followed and,
specifically, no motor carrier
representative sat on the Audit
Subcommittee during development of
the 2023 fee proposal.
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53691
Response: OOIDA’s comment is out of
scope for the second comment period.
However, it raises issues of procedure
and statutory authority, and, in this
instance, the Agency has determined it
is appropriate to address. OOIDA
claimed for the first time that the
industry advisory subcommittee
authorized by 49 U.S.C. 14504a(d)(5)(A)
has not considered the current fee
adjustment. The statute, however,
contains no express language
prohibiting the UCR Plan Board from
considering matters that have not first
been considered by the IAS, and
FMCSA does not infer congressional
intent to create such a prohibition. The
Plan Board is the principal governing
body for implementation of the URC
Agreement. The IAS is, by definition
and statute, its subcommittee. Therefore
a more logical inference of
congressional intent, consistent with the
ordinary functioning of subcommittees,
is that through section 14504a(d)(5)(A)
Congress intended to restrict the
universe of matters the subcommittee
could consider to just those matters that
come before the Plan Board. If the
committee decides not to consider such
a matter, or is unable to do so, the UCR
Plan Board nevertheless may consider
and act on the matter. During such
consideration by the UCR Plan Board,
the five industry members, including a
member from OOIDA, have an
opportunity to consider the matter and
express the industry’s views. Regarding
composition of the other subcommittees
and any absence of a motor carrier
representative, the OOIDA
representative and other members could
have raised any issue about the
activities of the IAS or other
subcommittees during any board
meeting.
The statute explicitly directs the
Chairperson to appoint an IAS. The
statute also states that the chair of each
subcommittee must be a director on the
UCR Plan Board and that for the IAS,
membership is reserved exclusively to
representatives of entities that are
required to pay the UCR fees. 49 U.S.C.
14504a(d)(5)(C), (D). For the IAS then,
the chairperson must be one of the five
directors representing the fee-paying
industry. This point was also
highlighted in an exchange OOIDA
provided in its Second Comment, that
when OOIDA asked why the IAS had
lapsed the response was that ‘‘it hadn’t’’
but that the IAS’s role had diminished
since the former IAS chair retired—this
was viewed as acceptable since
everyone on the IAS was also already a
member of the UCR Plan Board. It
followed, then, that the IAS work was
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simply occurring within the larger
Board meetings. OOIDA finds this
answer unsatisfactory, and so does the
Agency. However, there is scant
evidence in the record that any member
of the UCR Plan Board or professional
contractors identified this issue for
some time. However, the failure of the
IAS to be formally appointed, meet,
consider matters before the UCR Plan
Board and provide recommendations
does not render all actions of the UCR
Plan Board unlawful, as OOIDA
suggested. The instructions that the IAS
consider any matter before the UCR Plan
Board is a directive to the IAS, spelling
out its obligations to those who would
hold a seat on that subcommittee. The
alternative reading that OOIDA
advocates would have the absurd result
that the IAS could prevent the UCR Plan
Board from taking action on any matter
simply by declining to consider it. The
statute does not state that the UCR Plan
Board has an obligation to receive a
recommendation from the IAS before
acting. FMCSA does agree, however,
that the IAS should be formally
reconstituted and understands that this
process has begun with the May 19,
2022, initial organization meeting.
FMCSA also agrees with OOIDA
regarding the concern that the motor
carrier industry is not consistently
represented on all subcommittees.
Consistent compliance with this
statutory requirement would provide
additional oversight on the UCR Plan
activities. FMCSA believes it is
appropriate for OOIDA and all other
industry representatives on the Board to
use their positions to ensure that such
participation happens, whether by UCR
directors representing the motor carrier
industry or non-directors, as allowed by
statute. (49 U.S.C. 14504a(d)(5)(C)).
Again though, a mere opportunity for
improved motor carrier representation
on UCR subcommittees does not render
actions of the Plan Board, including
these proposed fee adjustments,
unlawful or invalid.
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VI. Changes From the NPRM
The proposed fees in the NPRM are
modified based upon the UCR Plan
Board’s updated recommendation
submitted in its February 2022 Fee
Recommendation. Instead of a fee
reduction for the 2023 registration year
of approximately 27 percent for all fee
brackets, as proposed in the NPRM, this
final rule adopts an even greater fee
reduction of approximately 31 percent
for all fee brackets. See the section-bysection discussion below for additional
detail.
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16:19 Aug 31, 2022
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VII. International Impacts
Motor carriers and other entities
involved in interstate and foreign
transportation in the United States that
do not have a principal office in the
United States are nonetheless subject to
the fees for the UCR Plan. They are
required to designate a participating
State as a base State and pay the
appropriate fees to that State (49 U.S.C.
14504a(a)(2)(B)(ii) and (f)(4)).
VIII. Final 2023 State UCR Revenue
Entitlements and Revenue Targets
The recommendation from the UCR
Plan, as indicated above, is an
adjustment from $4,000,000 to
$4,250,000 for administrative costs,
resulting in a total revenue target of
$112,027,060. The adjustment is based
on an analysis approved by the board of
directors that indicated that legal
expenses for the administration of the
UCR Agreement will be higher on an
ongoing basis. Therefore, in accordance
with 49 U.S.C. 14504a(d)(7) and (g)(4),
FMCSA approves the following table of
State revenue entitlements,
administrative costs, and the total
revenue target under the UCR
Agreement, as proposed in the NPRM.
These State revenue entitlements, the
administrative costs, and the total
revenue target will remain in effect for
2023 and subsequent years unless and
until approval of a revision occurs.
STATE UCR REVENUE ENTITLEMENTS
AND FINAL 2023 TOTAL REVENUE
TARGET
Total 2023
UCR revenue
entitlements
State
Alabama ............................
Arkansas ...........................
California ...........................
Colorado ...........................
Connecticut .......................
Georgia .............................
Idaho .................................
Illinois ................................
Indiana ..............................
Iowa ..................................
Kansas ..............................
Kentucky ...........................
Louisiana ..........................
Maine ................................
Massachusetts ..................
Michigan ...........................
Minnesota .........................
Missouri ............................
Mississippi ........................
Montana ............................
Nebraska ..........................
New Hampshire ................
New Mexico ......................
New York ..........................
North Carolina ..................
North Dakota ....................
PO 00000
Frm 00046
Fmt 4700
$2,939,964.00
1,817,360.00
2,131,710.00
1,801,615.00
3,129,840.00
2,660,060.00
547,696.68
3,516,993.00
2,364,879.00
474,742.00
4,344,290.00
5,365,980.00
4,063,836.00
1,555,672.00
2,282,887.00
7,520,717.00
1,137,132.30
2,342,000.00
4,322,100.00
1,049,063.00
741,974.00
2,273,299.00
3,292,233.00
4,414,538.00
372,007.00
2,010,434.00
Sfmt 4700
STATE UCR REVENUE ENTITLEMENTS
AND FINAL 2023 TOTAL REVENUE
TARGET—Continued
State
Total 2023
UCR revenue
entitlements
Ohio ..................................
Oklahoma .........................
Pennsylvania ....................
Rhode Island ....................
South Carolina ..................
South Dakota ....................
Tennessee ........................
Texas ................................
Utah ..................................
Virginia ..............................
Washington .......................
West Virginia ....................
Wisconsin .........................
4,813,877.74
2,457,796.00
4,945,527.00
2,285,486.00
2,420,120.00
855,623.00
4,759,329.00
2,718,628.06
2,098,408.00
4,852,865.00
2,467,971.00
1,431,727.03
2,196,680.00
Subtotal .....................
Alaska ...............................
Delaware ...........................
106,777,059.81
500,000.00
500,000.00
Total State Revenue
Entitlement .............
Administrative Costs ..
Total Revenue
Target .............
107,777,060.00
4,250,000.00
112,027,060.00
IX. Section-by-Section Analysis
In this rule, FMCSA removes 49 CFR
367.20, 367.30, 367.40, and 367.50.
These sections established fees
applicable for registration years from
2007 to and including 2019. The UCR
Plan is no longer collecting fees for
those registration years, and these
sections are removed to avoid confusion
or uncertainty about the applicable fees.
FMCSA redesignates 49 CFR 367.60
as 49 CFR 367.20 and revises the
provisions of that section (which were
adopted in the 2020 final rule) so that
the fees apply to registration years 2020,
2021, and 2022 only. A new 49 CFR
367.30 establishes new reduced fees
applicable beginning in registration year
2023, based on the revised
recommendation submitted by the UCR
Plan Board in its February 2022
Updated Fee Recommendation, which it
submitted as a comment to the public
docket for the NPRM. These fees will
remain in effect for subsequent
registration years after 2023 unless
revised by a future rulemaking. The fees
in this section are lower than proposed
in the NPRM in recognition of the
updated recommendation submitted by
the UCR Plan Board in its February 2022
Updated Fee Recommendation.
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Federal Register / Vol. 87, No. 169 / Thursday, September 1, 2022 / Rules and Regulations
X. Regulatory Analyses
jspears on DSK121TN23PROD with RULES
A. Executive Order (E.O.) 12866
(Regulatory Planning and Review), E.O.
13563 (Improving Regulation and
Regulatory Review), and DOT
Regulatory Policies and Procedures
FMCSA has considered the impact of
this final rule under E.O. 12866 (58 FR
51735, Oct. 4, 1993), Regulatory
Planning and Review, E.O. 13563 (76 FR
3821, Jan. 21, 2011), Improving
Regulation and Regulatory Review, and
DOT’s regulatory policies and
procedures. The Office of Information
and Regulatory Affairs within OMB
determined that this final rule is not a
significant regulatory action under
section 3(f) of E.O. 12866, as
supplemented by E.O. 13563, and does
not require an assessment of potential
costs and benefits under section 6(a)(3)
of that Order. Accordingly, OMB has not
reviewed it under these Orders.
The changes in this rule reduce the
registration fees paid by motor carriers,
motor private carriers of property,
brokers, freight forwarders, and leasing
companies to the UCR Plan and the
participating States. While each motor
carrier will realize a reduced burden,
fees are considered by OMB Circular
A–4, Regulatory Analysis as transfer
payments, not costs. Transfer payments
are payments from one group to another
that do not affect total resources
available to society. By definition,
transfers are not considered in the
monetization of societal costs and
benefits of rulemakings.
This rule reduces annual registration
fees for the UCR Plan and Agreement.
The entities affected by this rule are the
participating States, motor carriers,
motor private carriers of property,
brokers, freight forwarders, and leasing
companies, and the fee reduction for
these entities is the rule’s primary
impact. Because the State UCR revenue
entitlements remain unchanged by this
rule, the participating States are not
economically impacted. The
recommended reduction from the
current 2020 registration year fees
(approved by the Board on August 12,
2021) and modified in February 2022, is
just under 31 percent, or about $18 in
the lowest bracket and $17,688 in the
highest bracket, per entity, depending
on the number of vehicles owned or
operated.
B. Congressional Review Act
This rule is not a major rule as
defined under the Congressional Review
Act (5 U.S.C. 801–808).’’ 42
42 A ‘‘major rule’’ means any rule that OMB finds
has resulted in or is likely to result in (a) an annual
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C. Regulatory Flexibility Act (Small
Entities)
The Regulatory Flexibility Act (5
U.S.C. 601 et seq.) (RFA), as amended
by the Small Business Regulatory
Enforcement Fairness Act of 1996
(SBREFA),43 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 (5 U.S.C.
601(6)). 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.
This rule directly affects the
participating States, motor carriers,
motor private carriers of property,
brokers, freight forwarders, and leasing
companies. Under the standards of the
RFA, as amended by the SBREFA, the
participating States are not small
entities. States are not considered small
entities because they do not meet the
definition of a small entity in section
601 of the RFA. Specifically, States are
not considered small governmental
jurisdictions under section 601(5) of the
RFA, both because State government is
not included among the various levels
of government listed in section 601(5),
and because, even if this were the case,
no State or the District of Columbia has
a population of less than 50,000, which
is the criterion by which a governmental
jurisdiction is considered small under
section 601(5) of the RFA.
The Small Business Administration’s
(SBA) size standard for a small entity
(13 CFR 121.201) differs by industry
code. The entities affected by this rule
fall into many different industry codes.
In order to determine if this rule
impacts a significant number of small
entities, FMCSA examined the 2017
Economic Census data 44 for two
effect on the economy of $100 million or more; (b)
a major increase in costs or prices for consumers,
individual industries, geographic regions, Federal,
State, or local government agencies; 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 (49 CFR 389.3).
43 Public Law 104–121, 110 Stat. 857, (Mar. 29,
1996).
44 U.S. Census Bureau, 2017 US Economic
Census. Available at https://data.census.gov/cedsci/
table?q=United%20States&t=
Value%20of%20Sales,%20Receipts,%20
Revenue,%20or%20Shipments&n=
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53693
different industries, truck transportation
(Subsector 484) and transit and ground
transportation (Subsector 485).
According to the 2017 Economic
Census, approximately 99.4 percent of
truck transportation firms, and
approximately 99.2 percent of transit
and ground transportation firms, had
annual revenue less than the SBA’s
revenue thresholds of $30 million and
$16.5 million, respectively, to be
defined as a small entity. Therefore,
FMCSA has determined that this rule
impacts a substantial number of small
entities. However, FMCSA has
determined that this rule will not have
a significant impact on the affected
entities. The effect of this rule is to
reduce the annual registration fee motor
carriers, motor private carriers of
property, brokers, freight forwarders,
and leasing companies are currently
required to pay. The reduction will
range from $18 to $17,688 per entity,
depending on the number of vehicles
owned and/or operated by the affected
entities.
Consequently, I certify that this action
will not have a significant economic
impact on a substantial number of small
entities.
D. Assistance for Small Entities
In accordance with section 213(a) of
the Small Business Regulatory
Enforcement Fairness Act of 1996,45
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 person listed under FOR FURTHER
INFORMATION CONTACT.
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
(Office of the National Ombudsman, see
https://www.sba.gov/about-sba/
oversight-advocacy/office-nationalombudsman) 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–
484&tid=ECNSIZE2017.EC1700SIZE
REVEST&hidePreview=true (accessed Dec. 28,
2021).
45 Public Law 104–121, 110 Stat. 857, (Mar. 29,
1996).
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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
$170 million (which is the value
equivalent of $100 million in 1995,
adjusted for inflation to 2020 levels) or
more in any 1 year. Although this rule
would not result in such an
expenditure, the Agency discusses the
effects of this rule elsewhere in this
preamble.
F. Paperwork Reduction Act
This rule contains no new
information collection requirements
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 E.O. 13132 if it has
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’
FMCSA has determined that this rule
would not have substantial direct costs
on or for States, nor would it limit the
policymaking discretion of States.
Nothing in this document preempts any
State law or regulation. Therefore, this
rule does not have sufficient federalism
implications to warrant the preparation
of a Federalism Impact Statement.
J. National Environmental Policy Act of
1969
H. Privacy
FMCSA analyzed this rule pursuant to
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), Appendix 2, paragraph
6.h. The Categorical Exclusion (CE) in
paragraph 6.h. covers regulations and
actions taken pursuant to regulation
implementing procedures to collect fees
that will be charged for motor carrier
registrations. The requirements in this
rule are covered by this CE and do not
have any effect on the quality of the
environment.
The Consolidated Appropriations Act,
2005, requires the Agency to assess the
privacy impact of a regulation that will
affect the privacy of individuals. This
final rule would not require the
collection of personally identifiable
information.
The Privacy Act (5 U.S.C. 552a)
applies only to Federal agencies and any
non-Federal agency that receives
records contained in a system of records
from a Federal agency for use in a
matching program.
The E-Government Act of 2002,
requires Federal agencies to conduct a
Privacy Impact Assessment (PIA) for
new or substantially changed
technology that collects, maintains, or
disseminates information in an
identifiable form. No new or
substantially changed technology would
collect, maintain, or disseminate
information as a result of this rule.
Accordingly, FMCSA has not conducted
a PIA.
I. 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.
List of Subjects in 49 CFR Part 367
Intergovernmental relations, Motor
carriers, Brokers, Freight Forwarders.
■ In consideration of the foregoing,
FMCSA revises 49 CFR chapter III, part
367 to read as follows:
PART 367—STANDARDS FOR
REGISTRATION WITH STATES
Sec.
367.20 Fees under the Unified Carrier
Registration Plan and Agreement for
registration years beginning in 2020 and
ending in 2022
367.30 Fees under the Unified Carrier
Registration Plan and Agreement for
Registration Years Beginning in 2023 and
Each Subsequent Registration Year
Thereafter.
Authority: 49 U.S.C. 13301, 14504a; and 49
CFR 1.87. §§ 367.20, 367.30 367.40, 367.50.
§ 367.20 Fees under the Unified Carrier
Registration Plan and Agreement for
registration years beginning in 2020 and
ending in 2022.
TABLE 1 TO § 367.20—FEES UNDER THE UNIFIED CARRIER REGISTRATION PLAN AND AGREEMENT FOR REGISTRATION
YEARS BEGINNING IN 2020 AND ENDING IN 2022
Number of commercial motor vehicles owned
or operated by exempt or non-exempt motor
carrier, motor private carrier, or freight
forwarder
Bracket
jspears on DSK121TN23PROD with RULES
B1
B2
B3
B4
B5
B6
........................................................................
........................................................................
........................................................................
........................................................................
........................................................................
........................................................................
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Fee per entity for
exempt or non-exempt
motor carrier, motor
private carrier, or
freight forwarder
0–2 .....................................................................
3–5 .....................................................................
6–20 ...................................................................
21–100 ...............................................................
101–1,000 ..........................................................
1,001 and above ................................................
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$59
176
351
1,224
5,835
56,977
01SER1
Fee per entity for
broker or leasing
company
$59
Federal Register / Vol. 87, No. 169 / Thursday, September 1, 2022 / Rules and Regulations
53695
§ 367.30 Fees under the Unified Carrier
Registration Plan and Agreement for
Registration Years Beginning in 2023 and
Each Subsequent Registration Year
Thereafter.
TABLE 1 TO § 367.30—FEES UNDER THE UNIFIED CARRIER REGISTRATION PLAN AND AGREEMENT FOR REGISTRATION
YEARS BEGINNING IN 2023 AND EACH SUBSEQUENT REGISTRATION YEAR THEREAFTER
Number of commercial motor vehicles owned
or operated by exempt or non-exempt motor
carrier, motor private carrier, or freight
forwarder
Bracket
B1
B2
B3
B4
B5
B6
........................................................................
........................................................................
........................................................................
........................................................................
........................................................................
........................................................................
Issued under authority delegated in 49 CFR
1.87.
Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022–18944 Filed 8–31–22; 8:45 am]
BILLING CODE 4910–EX–P
0–2 .....................................................................
3–5 .....................................................................
6–20 ...................................................................
21–100 ...............................................................
101–1,000 ..........................................................
1,001 and above ................................................
plan/northeast-multispeciesmanagement-plan.
Kyle
Molton, Fishery Management Specialist,
(978) 281–9236.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:
Background
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 648
[Docket No. 220829–0175]
RIN 0648–BL40
Fisheries of the Northeastern United
States; Northeast Multispecies
Fishery; Fishing Year 2022
Recreational Management Measures
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule.
AGENCY:
This rule implements changes
to fishing year 2022 recreational
management measures for Gulf of Maine
cod and haddock. The measures are
intended to ensure the recreational
fishery achieves, but does not exceed,
fishing year 2022 catch limits. This
action is required to help achieve
optimum yield, prevent overfishing, and
ensure management measures are based
on the best scientific information
available.
jspears on DSK121TN23PROD with RULES
SUMMARY:
The measures in this rule are
effective August 30, 2022.
ADDRESSES: To review Federal Register
documents referenced in this rule, you
can visit: https://
www.fisheries.noaa.gov/managementDATES:
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Fee per entity for
exempt or non-exempt
motor carrier, motor
private carrier, or
freight forwarder
The recreational fishery for Gulf of
Maine (GOM) cod and GOM haddock is
managed under the Northeast
Multispecies Fishery Management Plan
(FMP). The multispecies fishing year
starts on May 1 and runs through April
30 of the following calendar year. The
FMP sets sub-annual catch limits (subACL) for the recreational fishery each
fishing year for both stocks. These subACLs are a fixed proportion of the
overall catch limit for each stock. The
FMP also includes proactive
recreational accountability measures
(AMs) to prevent the recreational subACLs from being exceeded and reactive
AMs to correct the cause or mitigate the
effects of an overage if one occurs.
The proactive AM provision in the
FMP provides a process for the Regional
Administrator, in consultation with the
New England Fishery Management
Council, to adjust recreational
management measures for the upcoming
fishing year to ensure that the
recreational sub-ACL is achieved, but
not exceeded. The provisions governing
this action can be found in the FMP’s
implementing regulations at 50 CFR
648.89(f)(3).
The 2022 recreational sub-ACL set by
Framework Adjustment 63 (87 FR
42375; July 15, 2022) for GOM cod is
192 mt, and the 2022 recreational subACL for GOM haddock is 3,634 mt, as
set by Framework Adjustment 59 (85 FR
45794; July 30, 2020).
Using the GOM cod and GOM
haddock 2022 sub-ACLs and a peer-
PO 00000
Frm 00049
Fmt 4700
Sfmt 4700
$41
121
242
844
4,024
39,289
Fee per entity for
broker or leasing
company
$41
reviewed bioeconomic model developed
by NMFS’s Northeast Fisheries Science
Center that predicts fishing behavior
under different management measures,
we estimated 2022 recreational GOM
cod and haddock removals under
several combinations of minimum sizes,
slot limits, possession limits, and closed
seasons. The bioeconomic model
considers measures for the two stocks in
conjunction because cod are commonly
caught while recreational participants
are targeting haddock, linking the catch
and effort for each stock to the other.
The bioeconomic model results suggest
that measures for both GOM cod and
haddock can be slightly liberalized
without the 2022 recreational fishery’s
sub-ACLs being exceeded. With any
given model, there exists some level of
uncertainty in the accuracy of model
predictions. While a number of
parameters and unpredicted events may
impact the differences between model
predictions and real-world catch, in
recent years the bioeconomic model has
performed well in terms of modelpredicted versus actual catch estimates,
which suggests the model is a good tool
for assessing the potential impacts of
regulatory changes. As in past years, we
used preliminary data for the most
recent fishing year from the Marine
Recreational Information Program
(MRIP) to calibrate the model.
Incorporation of new waves, or data
updates, may result in changes in model
estimates. MRIP data can be uncertain
and highly variable from year to year.
For each of the sets of management
measures, 100 simulations of the
bioeconomic model were conducted,
and the number of simulations which
yielded recreational mortality estimates
under the sub-ACL was used as an
estimate of the probability that the
simulated set of measures will not result
E:\FR\FM\01SER1.SGM
01SER1
]]>Agencies
[Federal Register Volume 87, Number 169 (Thursday, September 1, 2022)]
[Rules and Regulations]
[Pages 53680-53695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18944]
=======================================================================
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Part 367
[Docket No. FMCSA-2022-0001]
RIN 2126-AC51
Fees for the Unified Carrier Registration Plan and Agreement
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: FMCSA amends the regulations for the annual registration fees
States collect from motor carriers, motor private carriers of property,
brokers, freight forwarders, and leasing companies for the Unified
Carrier Registration (UCR) Plan and Agreement for the 2023 registration
year and subsequent registration years. The fees for the 2023
registration year would be reduced below the fees for 2022. The
reduction in annual registration fees would be between $18 and $17,688
per entity, depending on the applicable fee bracket that is based on
the number of vehicles owned or operated by the affected entity.
DATES: Effective September 1, 2022.
Petitions for Reconsideration of this final rule must be submitted
to the FMCSA Administrator no later than October 3, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Riddle, Director, Office
of Registration and Safety Information, FMCSA, 1200 New Jersey Avenue
SE, Washington, DC 20590-0001, [email protected]. If you have
questions on viewing or submitting material to the docket, call Dockets
Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
FMCSA organizes this final rule as follows:
I. Availability of Rulemaking Documents
II. Executive Summary
A. Purpose and Summary of the Regulatory Action
B. Costs and Benefits
III. Abbreviations
IV. Legal Basis for Rulemaking
V. Discussion of Proposed Rulemaking and Comments
A. The Proposed Rulemaking
B. Comments Received
C. Reopening of Comment Period
VI. Changes From the NPRM
VII. International Impacts
VIII. Final 2023 State UCR Revenue Entitlements and Revenue Targets
IX. Section-by-Section Analysis
X. Regulatory Analyses
A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563
(Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
B. Congressional Review Act
C. Regulatory Flexibility Act (Small Entities)
D. Assistance for Small Entities
E. Unfunded Mandates Reform Act of 1995
F. Paperwork Reduction Act (Collection of Information)
G. E.O. 13132 (Federalism)
H. Privacy
I. E.O. 13175 (Indian Tribal Governments)
J. National Environmental Policy Act of 1969
I. Availability of Rulemaking Documents
To view any documents mentioned as being available in the docket,
go to https://www.regulations.gov/docket/FMCSA-2022-0001/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
at U.S. Department of Transportation, Room W12-140, 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 Regulatory Action
Under the UCR Statute, the UCR Plan and the 41 States participating
in the UCR Agreement collect fees from motor carriers, motor private
carriers of property, brokers, freight forwarders, and leasing
companies. The UCR Plan and Agreement are administered by a 15-member
board of directors: 14 appointed from the participating States and the
industry, plus the Deputy Administrator of FMCSA. Revenues collected
are allocated to the participating States and the UCR Plan.
In accordance with 49 U.S.C. 14504a(d)(7) and (f)(1)(E)(ii), fee
adjustments must be requested by the UCR Plan when annual revenues
exceed the maximum allowed. Also, if there are excess funds after
payments to the States and for administrative costs, they are retained
in the UCR Plan's depository, and fees in subsequent fee years must be
reduced as required by 49 U.S.C. 14504a(h)(4). These two distinct
provisions each contribute to the fee adjustment in this final rule,
which reduces the annual registration fees established pursuant to the
UCR
[[Page 53681]]
Agreement for the 2023 registration year and subsequent years.
To determine the fee reduction recommendation for the 2023
registration year, the UCR Plan Board has estimated future period
collections using an average of the collections of the past 3 closed
years. It also considered that there has been no change to the
authorized administrative allowance since 2020 and recommended a modest
increase in the allowance.
B. Costs and Benefits
The changes in this final rule will reduce the fees paid by motor
carriers, motor private carriers of property, brokers, freight
forwarders, and leasing companies to the UCR Plan and the participating
States. While each motor carrier or other covered entity may realize a
reduced burden, fees are considered by the Office of Management and
Budget (OMB) Circular A-4, Regulatory Analysis, as transfer payments,
not costs. Transfer payments are payments from one group to another
that do not affect total resources available to society. Therefore,
transfers are not considered in the monetization of societal costs and
benefits of rulemakings.
III. Abbreviations
APA Administrative Procedure Act
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
DOT Department of Transportation
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
OOIDA Owner Operator Independent Drivers Association
PTA Privacy Threshold Assessment
RFA Regulatory Flexibility Act
RFI Request for Information
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Secretary Secretary of Transportation
UCR Unified Carrier Registration
U.S.C. United States Code
IV. Legal Basis for the Rulemaking
This rule adjusts the annual registration fees required by the UCR
Agreement established by 49 U.S.C. 14504a. The fee adjustments are
authorized by 49 U.S.C. 14504a because the total revenues collected for
previous registration years exceed the maximum annual revenue
entitlements of $107.78 million distributed to the 41 participating
States plus the amount established for the administrative costs
associated with the UCR Plan and Agreement. The UCR Plan Board
submitted the requested adjustments in accordance with 49 U.S.C.
14504a(f)(1)(E)(ii), which provides for the UCR Plan Board to request
an adjustment by the Secretary of Transportation (the Secretary) when
the annual revenues exceed the maximum allowed. In addition, 49 U.S.C.
14504a(h)(4) states that any excess funds from previous registration
years held by the UCR Plan in its depository, after distribution to the
States and for payment of administrative costs, shall be retained ``and
the fees charged . . . shall be reduced by the Secretary accordingly.''
(49 U.S.C. 14504a(h)(4)).
The UCR Plan Board must also obtain DOT approval to revise the
total revenue to be collected, in accordance with 49 U.S.C.
14504a(d)(7). This rule grants the UCR Plan Board's requested increase
in total revenues to be collected to address anticipated increased
costs of administering the UCR Agreement. No changes in the revenue
allocations to the participating States were recommended by the UCR
Plan Board or authorized by this rule.
The Secretary also has broad rulemaking authority in 49 U.S.C.
13301(a) to carry out 49 U.S.C. 14504a, which is part of 49 U.S.C.
subtitle IV, part B. Authority to administer these statutory provisions
has been delegated to the FMCSA Administrator by 49 CFR 1.87(a)(2) and
(7).
The Administrative Procedure Act (APA) allows agencies to make
rules effective immediately with good cause, instead of requiring
publication 30 days prior to the effective date. 5 U.S.C. 553(d)(3).
FMCSA finds there is good cause for this rule to be effective upon
publication so that the UCR Plan and the participating States may begin
collection of fees on and after October 1, 2022, for the registration
year that will begin on January 1, 2023. The immediate commencement of
fee collection will avoid delay in distributing the statutory
entitlement revenues to the participating States.
V. Discussion of Proposed Rulemaking and Comments
A. The Proposed Rule
On January 24, 2022, FMCSA published in the Federal Register at 87
FR 3489 an NPRM titled ``Fees for the Unified Carrier Registration Plan
and Agreement'' (Docket No. FMCSA-2022-0001). The NPRM proposed that
the UCR Plan and the 41 States participating in the UCR Agreement
establish and collect fees from motor carriers, motor private carriers
of property, brokers, freight forwarders, and leasing companies. The
UCR Plan and Agreement are administered by a 15-member board of
directors: 14 appointed from the participating States and the industry,
plus the Deputy Administrator of FMCSA (49 U.S.C. 14504a(d)(1)(B)(i)-
(iv)). Revenues collected are allocated to the participating States and
the UCR Plan. (49 U.S.C. 14504a(d)(7), (g), and (h)).
In accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), fee adjustments
may be requested by the UCR Plan when annual revenues exceed the
maximum allowed. Also, if there are excess funds after payments to the
States and for administrative costs, they are retained in the UCR
Plan's depository, and subsequent fees must be reduced as required by
49 U.S.C. 14504a(h)(4). These two distinct statutory provisions both
support the fee reduction adjustment that was proposed in the NPRM. The
NPRM proposed a reduction in the annual registration fees pursuant to a
recommendation of the UCR Plan Board for the 2023 registration year and
all subsequent years until a change in fees is authorized pursuant to a
new rulemaking by the Agency.
In its August 2021 Recommendation to FMCSA (the ``August 2021 Fee
Recommendation''), the UCR Plan Board estimated future period
collections using an average of the collections of the past 3 closed
years.\1\ It also acknowledged that the UCR Plan held excess fees from
prior fee years that were available to further reduce fees. In
preparing its fee recommendation, the UCR Plan Board also considered
that there has been no change to the authorized administrative cost
allowance since 2020 and recommended a modest increase in the
allowance. The UCR Plan Board recommended that FMCSA reduce the fees
for all fee brackets by approximately 27 percent, and FMCSA's NPRM
proposed the fees as recommended by the UCR Plan Board.
---------------------------------------------------------------------------
\1\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0001.
---------------------------------------------------------------------------
B. Comments Received
FMCSA solicited comments concerning the NPRM for 30 days ending
February 23, 2022. By that date, seven comments were received. This
included the UCR Plan Board of Directors (UCR Plan Board), Owner-
Operator Independent Drivers Association (OOIDA) (OOIDA's First
Comment), the Truckers Auditor, a company, two individuals, and an
anonymous commenter. Both individuals, the company, anonymous
commenter, and Truckers Auditor all
[[Page 53682]]
commented in favor of reducing the fees and in favor of the proposal in
general.
During the public comment period, on February 22, 2022, the UCR
Plan Board submitted a comment to the docket with a new recommendation
for the fees (the UCR Comment or February 2022 Updated Fee
Recommendation), updating the August 2021 Fee Recommendation.\2\ In the
UCR Comment, the UCR Plan Board recommended a further fee reduction
based upon updated actual collections and estimated fees. The February
2022 Updated Fee Recommendation proposed fee reductions of
approximately 31 percent below the current fees.
---------------------------------------------------------------------------
\2\ First UCR Plan Board Comment submitted on Feb. 22, 2022
(February 2022 UCR Plan Board Recommendation), available at: https://www.regulations.gov/comment/FMCSA-2022-0001-0006.
---------------------------------------------------------------------------
After receiving and reviewing the issues raised in the comments
submitted in response to the NPRM, on March 22, 2022, FMCSA transmitted
a request for information (RFI) to the UCR Plan.\3\ On May 9, 2022, the
UCR Plan Board submitted to FMCSA a response (Information Response or
IR) to the RFI.\4\ On May 23, 2022, OOIDA, a commenter responding to
the NPRM, requested an opportunity to comment on the IR. In a Federal
Register notice published June 14, 2022 (87 FR 35940), FMCSA reopened
the comment period for 14 days ``for the limited purpose of allowing
comments on the UCR Plan's [Information Response].'' In response to
this notice, OOIDA and a few other commenters submitted additional
comments on or about June 28, 2022.\5\ On July 11, 2022, the UCR Plan,
relying on 49 CFR 389.23, submitted an additional comment responding to
OOIDA's June 28 comment (``Second Comment'').\6\ FMCSA has considered
this additional information and comments in accordance with 49 CFR
5.5(a)(1).
---------------------------------------------------------------------------
\3\ Both the RFI and the transmittal to the UCR Plan are
available in the docket for this rulemaking. FMCSA-2022-0001-
010_Attachment_2.pdf and attachment_3.pdf.
\4\ Available in the docket for this rulemaking. FMCSA-2022-
0001-010_Attachment_1.pdf.
\5\ FMCSA-2022-0001-011_Attachment_1.pdf.
\6\ FMCSA-2022-0001-0116_Attachment_1.pdf.
---------------------------------------------------------------------------
1. Compliance With Legal Requirements
a. UCR Statute
Comment: OOIDA contended that the proposal would violate the UCR
statute and offered several arguments.\7\ OOIDA stated that the
proposal does not apply the ``full $42 million revenue excess'' to
lowering fees. OOIDA also believed that any excess funds from 2021
should have been allocated to 2022 fees, not to 2023 fees. OOIDA also
stated that the 2020 fees could not be imposed in 2023 (and also should
not be imposed in 2022).
---------------------------------------------------------------------------
\7\ Available in the docket for this rulemaking at https://www.regulations.gov/comment/FMCSA-2022-0001-0008.
---------------------------------------------------------------------------
Response: OOIDA's argument that the statute requires that 2021
excess funds should have been reflected in an adjustment in the fees
for 2022 is discussed in more detail below. The short answer to this
point is that reflecting such excess funds in the current adjustment
for 2023 is warranted by the Fee Change Recommendation Policy adopted
by the UCR Plan Board at its August 13, 2020, meeting and revised at a
meeting on June 8, 2021. The Policy is in the docket (Tab K to the
Information Response submitted to FMCSA by the UCR Plan Board on May 9,
2022). FMCSA finds that this policy is consistent with a reasonable
interpretation of the relevant statutory provisions, namely 49 U.S.C.
14504a(d)(7), (f)(1) and (h)(4). FMCSA has no authority to address
OOIDA's assertion that the fees should not be imposed in 2022 because,
by statute, FMCSA proposes and makes UCR fee adjustments following a
recommendation of the UCR Plan Board, and no fee adjustment
recommendation was submitted for the 2022 registration year.
b. Administrative Procedure Act
Comment: OOIDA commented that the rulemaking did not comply with
the APA because the UCR Plan Board did not explain in the fee
recommendation how the proposed fees were calculated or why it complied
with the law. OOIDA further commented that there was insufficient data
or analysis in the rulemaking docket for the public to review,
understand, and comment on the recommended fees, and therefore the
rulemaking proceeding did not comply with the APA. Finally, OOIDA
commented that the UCR Plan Board did not explain how the proposed fees
were devised or that the fees would reduce current fees by $22 million
in excess revenues.
Response: The Agency published an NPRM and shared with the public
all information received from the UCR Plan Board. The notice-and-
comment rulemaking process was completed in full compliance with the
APA. As a preliminary matter, the statute governing the UCR Plan and
associated fees, found at 49 U.S.C. 14504a, sets forth parameters for
the UCR Plan Board to make fee recommendations, but it does not require
the UCR Plan Board to explain in every fee recommendation to the
Secretary and FMCSA how the recommendation complies with the statute.
The UCR Plan submitted the fee recommendation in accordance with the
statute.
The UCR Plan's August 2021 Fee Recommendation and the Agency's
subsequent NPRM provided enough information for OOIDA to provide
meaningful comment, including raising questions about the calculations.
The August 2021 Fee Recommendation was in the rulemaking docket and
included the existing fees and the proposed fees which reflected a
reduction of approximately 27 percent for all fee brackets. It provided
an explanation as to how the Fee Recommendation was developed by the
Plan, including that the fee reduction was expected to result in an
under-collection of fees, with the effect, essentially, of refunding
excess collections in real time to UCR registrants. The UCR Plan Board
also explained in the August 2021 Fee Proposal that it had changed the
methodology for projecting future collections in light of the
overcollections in several registration years. The APA requires an NPRM
to include ``either the terms or substance of the proposed rule or a
description of the subjects and issues involved'' (5 U.S.C. 553(b)(3)).
The NPRM complied with both requirements, and OOIDA was able to examine
and comment on the issues involved in great detail.
The Agency also notes that an OOIDA employee is a member of the UCR
Plan Board and is thus a participant in the organization making the
recommendation. If OOIDA believes there are procedural or substantive
errors in the UCR Plan Board submission, OOIDA, as a sitting member on
the Board, should have raised those deficiencies (and most of the
substantive issues discussed below) directly with the UCR Plan Board.
The Agency finds no deficiency with the information submitted or with
the notice provided in the NPRM.
c. Suspending Fees for the UCR Plan and Agreement Currently in Effect
Would Require a Recommendation From the Plan and a New Rulemaking
Comment: OOIDA also claimed that the current fees in effect are
higher than allowed under the statute, because the fees were authorized
for registration year 2020, and subsequent years have resulted in
excess revenues collected in the 2020 and 2021 registration years with
no reduction in 2021 and 2022 fees. OOIDA thus contends that FMCSA must
``immediately suspend'' the UCR fees. OOIDA also suggests that the UCR
Plan should apply all excess revenue collected from prior years to
reducing
[[Page 53683]]
the fee scale for registration year 2023 or to refund amounts already
paid for registration year 2022 to fee payers.
Response: By statute, the Secretary sets the registration fees
based on a recommendation from the UCR Plan Board and only after
providing opportunity for notice and public comment. (49 U.S.C.
14504a(d)(7)(B), 14504a(f)(1)(B)). Accordingly, FMCSA believes that any
change in fees, including suspension of fees, would require notice and
comment rulemaking pursuant to the APA, with an NPRM that includes such
action within its scope. The fees currently in effect, which have been
applied to registration years 2020, 2021, and 2022, were properly
adopted in a final rule for registration year 2020 and all succeeding
years until a new fee is adopted. Fees for the United Carrier
Registration Plan and Agreement, 85 FR 8192 (Feb. 13, 2020). No other
fee has been recommended by the UCR Plan Board or authorized by the
Secretary since the fee for the 2020 registration year, and subsequent
years, was adopted.
The UCR statute does not authorize direct refunding of fees after
the fees have been established in a final rule but does explicitly
provide for reduction of future fees based on excess collections in
prior years. (49 U.S.C. 14504a(h)(4)). The statute does not provide any
authority for suspension or reduction of current fees, certainly not
without a rulemaking based on a recommendation from the UCR Plan Board.
The UCR Plan Board now requests a fee reduction, which is the subject
of this rulemaking. As addressed more fully elsewhere in this final
rule, collection periods for each registration year span three calendar
years, and excess or shortfalls in fees cannot be known, and thus
cannot be applied, for potential fee changes in the next calendar year.
Instead, excess (or shortfalls in) fees are applied to adjustments in
fees for subsequent fee years. This creates a single calendar year gap
between fee adjustments, with odd year collections available for
adjusting (increasing or decreasing) future odd year fees and even year
collections affecting possible adjustments to future even year fees.
This is spelled out in the UCR Plan's Fee Change Recommendation Policy,
which the UCR Plan Board adopted at the August 31, 2020, Board meeting,
and revised at the June 8, 2021, Board meeting.\8\ FMCSA notes again
that OOIDA is a voting member of the UCR Plan Board and was present at
the UCR Plan Board meetings when the Fee Change Recommendation Policy
was adopted and revised.
---------------------------------------------------------------------------
\8\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, titled ``Response
of the Unified Carrier Registration Plan'', 5-6 (May 9, 2022).
---------------------------------------------------------------------------
2. Fees and Fee Structure
a. The Fee Structure of the UCR Plan and Agreement Is Progressive
Comment: OOIDA also contended that the current and proposed fee
structure for the UCR Plan and Agreement is not ``progressive.'' OOIDA
pointed out, through an elaborate mathematical exercise, that a carrier
with a vehicle fleet size at the lower end of a fee bracket will pay
less per vehicle than a carrier at the upper end of the next lower
bracket. OOIDA relied on a definition of ``progressive'' that requires
the tax rate to increase when one's income increases.\9\
---------------------------------------------------------------------------
\9\ OOIDA focuses on fee per truck in its analysis, but the fee
is based on the number of CMVs that are self-propelled (i.e., not
including trailers) in the carrier's fleet (see 49 U.S.C.
14504a(a)(1)(A)(ii) and (f)(1)). For its definition of progressive,
OOIDA relies on a paper by an anonymous contributor to an online tax
software product, Intuit TurboTax. https://turbotax.intuit.com/tax-tips/general/understanding-progressive-regressive-and-flat-taxes/L917X2gBs (retrieved May 19, 2022).
---------------------------------------------------------------------------
OOIDA also stated that the fees were not fairly allocated, and that
expected noncompliance by some who should pay led to higher fees for
those who do pay. OOIDA suggested that this could be avoided through
better State enforcement, which it thought FMCSA and the UCR Plan Board
could compel.
OOIDA also requested that FMCSA adopt a fee structure it deemed
``constitutional'' that proportionately divided revenue collections by
everyone required to pay, and also only collecting sufficient funds to
cover entitlement distributions and administrative costs (without any
reserves).
Response: The starting point for any analysis of this issue is the
statute, which contains several requirements for the fee structure. The
fees are based either on the number of commercial motor vehicles (CMVs)
operated by motor carriers, motor private carriers and freight
forwarders or, for brokers and leasing companies, on the smallest fee
charged. There must be not less than four and not more than six fee
brackets. Brackets must be based on the size of the fleet of CMVs owned
and operated. The fees are recommended to the Secretary by the UCR Plan
Board. The fee scale shall be progressive in the amount of the fee. 49
U.S.C. 14504a(f)(1)(A)-(D).
The structure of the fees for the UCR Plan and Agreement was
developed by the Plan and carefully considered and approved by FMCSA in
a 2007 final rule. Fees for the Unified Carrier Registration Plan and
Agreement, 72 FR 48585 (Aug. 24, 2007). That final rule explained the
need to reflect all the statutory requirements in the fees and fee
structure, even if in some situations the result appeared to be
inequitable. For example, it was recognized that the fee structure must
ensure that the fee scale is progressive across the brackets, such that
the individual carrier fee increases as the size of the carrier
increases. The fact that a registrant at the top of one bracket may pay
less per vehicle than a registrant at the bottom of the next higher
bracket is structurally embedded in the statute. The statute requires
that the ``fee scale shall be progressive in the amount of the fee''
(49 U.S.C. 14504a(f)(1)(D)), across at least four and not more than six
fee brackets, where the brackets are based on fleet size, (49 U.S.C.
14504a(f)(1)(C)). The fee scale is clearly ``progressive'' in this
sense, because the fee scale increases with each bracket containing a
larger number of CMVs for the motor carrier entities included.
Moreover, the statute also requires that the fees be applied uniformly
to entities in each bracket ``based on the size of the fleet.'' (49
U.S.C. 14504a(f)(1)(C)). For particular entities, the fee may or may
not be progressive as compared to a carrier in another bracket that is
close in size, or that has almost the same number of CMVs in its fleet,
but that is an expected result of the fee scale under the UCR statute.
(72 FR at 48586).
Another appropriate consideration in determining whether the fees
are progressive is whether the structure shifts the burden of paying
the fees to those entities most likely to be able to pay. The fees are
also progressive in this sense because all the motor carriers and other
smaller entities, such as freight forwarders, brokers and leasing
companies, in the lower brackets provide a smaller proportion of the
total revenues than the larger motor carriers in the higher fee
brackets. As shown in the following table, for the 2021 registration
year motor carriers with 0-2 vehicles in their fleet, and brokers,
freight forwarders and leasing companies paying fees in the same
bracket were 73.02 percent of the total number of registrants but
provided only 23.07 percent of the revenues collected for the UCR Plan.
Entities in bracket 2 (3-5 vehicles in their fleets) were 13.63 percent
of the total number of registrants and provided 12.84 percent of the
revenues. On the other hand, in the 2021 registration year, motor
carriers with large fleet sizes that placed them
[[Page 53684]]
in the last two brackets provided a proportionally much larger share of
the revenues. In bracket 5 (101-1000 vehicles in their fleets), the
number of registrants was 0.52 percent of the total number of
registrations, and these entities provided 19.51 percent of the
revenues. Motor carriers in bracket 6 (1001 or more vehicles) were only
0.03 percent of the total registrants and provided 9.90 percent of the
total revenues. Very similar distributions of registered entities and
fee revenues are shown in the table for registration year 2020 and for
2022, to date.
2022 Registration Year
----------------------------------------------------------------------------------------------------------------
Number of fee- Percentage of
UCR fee bracket paying Total fee revenue fee-paying Percentage of
registrants registrants fee revenue
----------------------------------------------------------------------------------------------------------------
1 (0-2 vehicles)............................ 377,390 $22,266,010 69.32 19.47
2 (3-5 vehicles)............................ 83,015 14,610,640 15.25 12.77
3 (6-20 vehicles)........................... 60,981 21,404,331 11.20 18.71
4 (21-100 vehicles)......................... 19,322 23,650,128 3.55 20.68
5 (101-1000 vehicles)....................... 3,531 20,603,385 0.65 18.01
6 (1001 or more vehicles)................... 208 11,851,216 0.04 10.36
-------------------------------------------------------------------
Totals.................................. 544,447 114,385,710
----------------------------------------------------------------------------------------------------------------
2021 Registration Year
----------------------------------------------------------------------------------------------------------------
Number of fee- Percentage of
UCR fee bracket paying Total fee revenue fee-paying Percentage of
registrants registrants fee revenue
----------------------------------------------------------------------------------------------------------------
1 (0-2 vehicles)............................ 481,497 $28,408,323 73.02 23.07
2 (3-5 vehicles)............................ 89,859 15,815,184 13.63 12.84
3 (6-20 vehicles)........................... 64,836 22,757,436 9.83 18.48
4 (21-100 vehicles)......................... 19,627 24,023,448 2.98 19.51
5 (101-1000 vehicles)....................... 3,416 19,932,360 0.52 16.19
6 (1001 or more vehicles)................... 214 12,193,078 0.03 9.90
-------------------------------------------------------------------
Totals.................................. 659,449 123,129,829
----------------------------------------------------------------------------------------------------------------
2020 Registration Year
----------------------------------------------------------------------------------------------------------------
Number of fee- Percentage of
UCR fee bracket paying Total fee revenue fee-paying Percentage of
registrants registrants fee revenue
----------------------------------------------------------------------------------------------------------------
1 (0-2 vehicles)............................ 376,868 $22,235,212 69.13 19.37
2 (3-5 vehicles)............................ 83,211 14,645,136 15.26 12.76
3 (6-20 vehicles)........................... 62,589 21,968,739 11.48 19.14
4 (21-100 vehicles)......................... 18,810 23,023,440 3.45 20.05
5 (101-1000 vehicles)....................... 3,466 20,224,110 0.64 17.62
6 (1001 or more vehicles)................... 223 12,705,871 0.04 11.07
-------------------------------------------------------------------
Totals.................................. 545,167 114,802,508
----------------------------------------------------------------------------------------------------------------
As shown in the discussion and analysis above, the fee structure
satisfies the statutory requirement that it be progressive. The fees
increase as the carriers' fleet sizes increase, and the fee amounts
place a proportionally larger burden on those carriers with larger
fleets that are more likely to be able to pay the fees.\10\
---------------------------------------------------------------------------
\10\ This table is based on information provided by the UCR Plan
in the IR to FMCSA's RFI, at p. 17 and Tab I. The request and the
response have been posted in the docket.
---------------------------------------------------------------------------
b. Timing of Fee Adjustments and the Meaning of ``Fee Year''
Comment: OOIDA contends that the fee adjustment is contrary to the
statute (specifically 49 U.S.C. 14504a(f)(1)(E)(ii)) because, under the
adopted procedures, excess funds are used to adjust the fees in
alternating calendar years (with a one calendar year gap). For example,
under the UCR Plan Board's policy, excess funds collected for 2021
registrations are used to adjust the fees in 2023 and fees collected
for 2022 registrations will be used to adjust fees for 2024. OOIDA
states that the statute requires excess fee collections be used to
reduce the fee charged in the next calendar year.
Response: The statute is ambiguous because of its use of the term
``next fee year'' in section 14504a(h)(4). In FMCSA's view, the statute
allows an interpretation of the required timing for using excess funds
to adjust the UCR Agreement fees. The UCR Plan's procedures, adopted by
the UCR Plan Board, properly establish a 2-calendar year cycle for each
``fee year.'' As OOIDA points out,\11\ the UCR statute provides that
excess funds must be used to reduce the fees charged in the next ``fee
year.'' 49 U.S.C. 14504a(h)(4). The term ``fee year'' is used only in
that one instance and is undefined by the statute. Again, without
definition, the statute uses the term ``calendar year'' in two
instances: once for the limited purpose of defining commercial motor
vehicle during calendar years 2008 and 2009, 49 U.S.C.
14504a(a)(1)(A)(i), and the second, for setting forth the allocation of
[[Page 53685]]
fee payments under the new UCR Agreement structure, 49 U.S.C.
14504a(g)(2). In five instances, the statute refers to ``registration
year'' to explain the counting of the number of CMVs for registration
purposes, (49 U.S.C. 14504a(f)(2), (3)), and setting the allocation of
fee payments under the new UCR Agreement structure, (49 U.S.C.
14504a(g)(1), (3)). Once more, the statute does not define
``registration year.'' The use of various terms throughout the statute
suggests nuance between the three, and that the terms are not
unambiguously the same.
---------------------------------------------------------------------------
\11\ OOIDA's First Comment, p. 5.
---------------------------------------------------------------------------
The implemented ``fee year'' timeline is explained by the UCR Plan
Board in both its Information Response \12\ and the UCR Plan's Fee
Recommendation Policy,\13\ which was adopted by the UCR Plan Board on
August 13, 2020, and revised on June 8, 2021. The Agency again notes
that an OOIDA representative is a member of the UCR Plan Board and was
present at the Board meetings when the Fee Recommendation Policy was
adopted and revised. While phrased differently in different places, in
practice, the registration year aligns with the calendar year for that
registration. However, the ``administrative period'' during which fees
are collected (in other words, the ``fee year'') spans more than two
calendar years. The ``fee year'' begins on October 1 of the year prior
to the ``registration year,'' continues through the calendar year that
is the ``registration year,'' concluding on December 31 of the year
after the ``registration year.'' This timeline provides a 3-month pre-
registration window before the date on which the fees are due (which is
January 1 of the ``registration year''), as well as an audit and
dispute resolution period in the calendar year following the
registration year. Moreover, this timeline ensures sufficient fee
collection data to reasonably and accurately determine whether fee
reductions or increases are necessary.\14\ The timeline also provides a
steady and consistent framework for the UCR Plan Board to calculate and
submit a fee adjustment recommendation supported by accurate data to
the Secretary, and for FMCSA to conduct the statutorily required
notice-and-comment rulemaking and then publish a final rule setting the
new fees sufficiently in advance of the start of the applicable fee
year.\15\ In OOIDA's Second Comment (which is addressed at length
below), it continues to miss the distinction between calendar year and
fee year even while citing the UCR Plan's clear explanation of the
timeline, and practical reasons of time and data collection that led to
the distinction.\16\
---------------------------------------------------------------------------
\12\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, titled ``Response
of the Unified Carrier Registration Plan'', p. 5.
\13\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0020, Tab K.
\14\ Information Response, Docket No. 2022-FMCSA-0001-0010 at 5-
6, and Tab K.
\15\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, titled ``Response
of the Unified Carrier Registration Plan'', p. 5-6, tab K.
\16\ OOIDA's Second comment, https://www.regulations.gov/comment/FMCSA-2022-0001-0113, p. 12.
---------------------------------------------------------------------------
Further, in its Second Comment, OOIDA resumed questioning the
validity of the ``fee year'' structure adopted by the UCR Plan
Board.\17\ OOIDA again argued that the fee schedule does not comply
with the statute and quoted at length from the IR wherein the UCR Plan
Board explained the need for ``sufficient data'' on the actual revenues
collected to be able to make a reasonable projection of the excess
revenues for the registration year at the end of the fee year.\18\
OOIDA then argued that the record held no data on when in a calendar
year sufficient registration data would be available to determine
future fees with reasonable accuracy.\19\ While OOIDA raises an
interesting idea, that perhaps sufficient data to make excess revenue
projections is available earlier in the year, which in turn might
enable a faster timeline for fee setting, OOIDA undermines its own
argument by pointing out there is no data on that very point.\20\
Although OOIDA states that it was ``not proposing that the UCR Plan
adopt any specific procedures that might best comply with the
statute,'' it speculates that ``one can easily envision collection and
accounting standards that would better serve the statute's
requirements.'' \21\ As a member of the UCR Plan Board, OOIDA's comment
rings hollow. Members of the UCR Plan Board are responsible for
implementing the UCR Agreement in accordance with the statute. There
are challenges to developing, implementing, and administering any
program; that does not excuse members of the Board from speaking up
when possible problems are identified and then working to develop,
offer, and implement solutions.
---------------------------------------------------------------------------
\17\ OOIDA's Second comment, p. 6-8.
\18\ OOIDA's Second comment, p. 7.
\19\ OOIDA's Second comment, p. 7.
\20\ OOIDA's Second comment, p. 7.
\21\ OOIDA's Second comment, p. 8.
---------------------------------------------------------------------------
FMCSA concludes that the UCR Plan's alternating calendar-year fee
adjustment schedule, which OOIDA contests, does comply with a
reasonable interpretation of all the statutory requirements. The
requirement to adjust fees in the next ``fee year'' in section
14504a(h)(4) must be read together with the provisions of sections
14504a(d)(7) and 14504a(f)(1)(E)(ii). Those paragraphs provide the UCR
Plan and the Agency the opportunity, and, indeed the obligation, to
adopt and implement a statutory interpretation that reflects the unique
circumstances of the administration of the UCR Agreement.
3. Proper Use of Revenue
a. Reserve Accounts Are an Appropriate Means of Administering the UCR
Agreement and Are Not Excess Funds
Comment: OOIDA claims that the UCR Plan is ``not authorized'' by
either the statute or the UCR Handbook to establish financial reserve
accounts and allocate funds to such accounts. It claims that the UCR
Plan needs specific authorization to establish and maintain such
reserve accounts. As a corollary to this contention, OOIDA claims that
the funds allocated by the UCR Plan to the reserve accounts over the
past several years should be considered excess funds and instead be
applied to adjust the fees.
Response: The statute provides that the UCR Plan is the
organization of State, Federal, and industry representatives
responsible for developing, implementing, and administering the unified
carrier registration agreement. 49 U.S.C. 14504a(a)(9). It also
includes specific authority to provide for the administration of the
UCR Agreement (established by 49 U.S.C. 14504(a)(8), (9)) by adopting
rules and regulations. 49 U.S.C. 14504a(d)(2)(B). In addition, the UCR
Plan Board is authorized to include in the structure of the fees
charged to motor carriers, freight forwarders, brokers, and leasing
companies an amount to pay the costs of administering the UCR
Agreement. (49 U.S.C. 14504a(d)(7)(A)(i)). Accordingly, within the
scope of the UCR Plan's statutory responsibility to administer the UCR
Agreement is the need to adopt and apply appropriate policies and
procedures to manage the funds collected by the UCR Plan that are then
distributed both to the participating States and to the UCR Plan to be
applied to the administrative costs of carrying out the UCR Agreement.
However, a quirk of the statute states that revenues collected may not
be used to pay administrative costs until all the participating States
have received all their revenue entitlements. 49 U.S.C.
14504a(h)(3)(B). As a practical matter, during a registration year, no
funds
[[Page 53686]]
collected can be used for current operations of the UCR Plan in
administering the UCR Agreement until all the distributions have been
made from the depository to the States that have not achieved their
revenue entitlements. As a result of complying with this statutory
requirement, at the beginning of each year's operations, the Plan is
not receiving any funds budgeted for the administration of the UCR
Agreement and cannot carry out its statutory obligations unless funds
are available and held elsewhere.
In order to administer the Agreement and to address this situation,
at a meeting of the Board of Directors on December 14, 2017, the UCR
Plan adopted a financial reserve policy, effective on January 1, 2018,
to sustain financial operations in the unanticipated event of
significant unbudgeted increases in operating expenses and/or losses in
operating revenues.\22\ The financial reserve policy was adopted
without objection or negative vote from any member of the Board,
including all industry members and the representative from OOIDA. With
regard to administrative costs, the policy provides for: (1) a
liquidity reserve to address the lack of operating cash flow from fee
collections during the registration period while all revenues are
retained by or distributed to the participating States; (2) a reserve
to address a shortfall in fee collections such that the participating
States do not receive their revenue entitlements in full and the UCR
Plan does not receive any funds for its administrative costs; and (3) a
special or capital projects reserve to support future large capital
projects.\23\ The liquidity reserve is limited to the current year's
operating budget for administrative costs. The reserve for any
shortfall in revenues is limited to the operating budget for the next
two years. Funding for the capital projects reserve requires a majority
vote at a meeting of the UCR Plan Board and is limited to one-half of
any year's operating budget.
---------------------------------------------------------------------------
\22\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, Tab 1. The
minutes of the December 14, 2017, meeting are available on the UCR
Plan's website and have also been posted in the docket.
\23\ The UCR Plan Board also later adopted an insurance reserve
to provide contingency funds for the self-insurance plan for its
officers and directors. See minutes of UCR Plan Board meeting of
December 10, 2020, available in the docket for this rulemaking.
---------------------------------------------------------------------------
The funds held in the reserve accounts by the UCR Plan are set out
in the table below. The data are derived from the UCR Plan's statements
of financial position provided in the IR at Tabs A, B, and C.
----------------------------------------------------------------------------------------------------------------
Reserve name Dec. 31, 2020 Dec. 31, 2021 Feb. 28, 2022
----------------------------------------------------------------------------------------------------------------
Capital................................................... $0 $288,575 $288,575
Unbudgeted Expense........................................ 2,500,000 1,750,000 1,750,000
Financial................................................. 12,000,000 12,000,000 12,000,000
Insurance................................................. 0 1,750,000 1,750,000
-----------------------------------------------------
Totals................................................ 14,500,000 15,788,575 15,788,575
----------------------------------------------------------------------------------------------------------------
These reserve funds are a portion of unrestricted net assets of the
UCR Plan that are available for use in emergencies to sustain financial
operations in the unanticipated event of significant unbudgeted
increases in operating expenses and/or losses in operating revenues.
FMCSA finds that this is a prudent and reasonable use of the funds
available to the UCR Plan to prepare for and meet potential future
events. This is especially appropriate considering that due to planned
repeated reductions in fees, there is an increasing possibility that in
upcoming years there may be a shortfall in the fee revenues. (February
2022 Updated Fee Recommendation at 2.)
Ensuring the availability of reserve funds to meet possible
contingencies is an appropriate action for the UCR Plan Board to take
in implementing the statute. As FMCSA found in the 2010 final rule that
its responsibilities under 49 U.S.C. 14504a in setting fees for the UCR
Plan and Agreement are guided by the primacy the statute places on the
need both to set and to adjust the fees so that they ``provide the
revenues to which the States are entitled.'' The statute links the
requirement that the fees be adjusted ``within a reasonable range'' to
the provision of sufficient revenues to meet the entitlements of the
participating States (49 U.S.C. 14504a(f)(1)(E); see also 49 U.S.C.
14504a(d)(7)(A)(ii)). (Fees for United Carrier Registration Plan and
Agreement, 75 FR 21993 (Apr. 27, 2010) at 21995.)
Because the allocation of funds to reserve accounts by the UCR Plan
Board is proper, these funds are not available for adjustment of the
fees in accordance with the statute. The statute provides that the UCR
Plan Board and FMCSA shall consider whether the revenues generated in
the previous fee year and any surplus or shortage from that or prior
years enable the participating States to achieve in future registration
years the revenue levels set by the UCR Plan Board. (49 U.S.C.
14504a(d)(7)(A)(ii)). As the Plan explained in the Information Response
(at 4, note 2):
The amounts [in reserve accounts] are part of what the Board
holds in reserve to cover the Plan's administrative costs for up to
three registration years. As explained in the Plan's January 1, 2018
Reserve Fund Policy . . . these administrative reserves (1) provide
liquidity to the Plan during the current registration year (since,
under the Unified Carrier Registration Act, participating states
must receive their revenue entitlements in full before any collected
fees are used to pay the Plan's administrative costs, 49 U.S.C.
14504a(h)(3)); and (2) safeguard against the contingency that the
Plan's collection of fees for a given registration year under the
extant fee schedule produces a revenue shortfall (i.e., collections
do not exceed the total revenue entitlement for participating
states), which means that the Plan receives no funds to cover its
administrative costs for that year, and the Board can rectify the
problem only by recommending that the Agency increase the fees in a
future registration year.
The funds allocated to the reserve accounts, as part of the
administrative costs of administering the UCR Agreement, are not
available for reducing the fees, as the UCR Plan correctly states. (49
U.S.C. 14504a(h)(3)(B)). The reserved funds are not ``excess funds''
within the meaning of section 14504a(h)(4). OOIDA's assertion that the
funds in the reserve accounts are excess funds to be used to reduce the
fees is therefore without merit.
b. Lawfulness and Oversight of UCR Plan and UCR Plan Board Expenses
Comment: OOIDA also challenged the lawfulness of the proposed fees
for the 2023 registration year because, it argued, the UCR Plan Board
has authorized excessive administrative expenses, has improperly
expended money engaging in enforcement activities, and has unfairly
focused on
[[Page 53687]]
enforcement on motor carriers. As examples of unlawful administrative
expenses, OOIDA cited the use of outside contractors to aid in carrying
out the UCR Agreement, to support in-person meetings of the UCR Plan
Board, and for other expenses. In support of the claim that the UCR
Plan Board has improperly expended funds on enforcement efforts, OOIDA
asserted that the UCR Plan Board's authority is limited to
administering funds collected and distributed to states under the UCR
statute. OOIDA further asserted that the Board has no authority to
write rules, conduct enforcement related activities, or spend UCR fee
revenues to improve enforcement. OOIDA also contended that only the
States may engage in any enforcement efforts, and that such effort is
allowed by the UCR statute, but not required. OOIDA asserted that to
comply with the UCR statute, FMCSA must review the appropriateness of
UCR administrative expenses before approving updated UCR Agreement
fees.
Response: FMCSA agrees with OOIDA that the Agency can consider the
appropriateness of the costs incurred by the UCR Plan Board. Section
14504a(d)(7)(A)(i) explicitly states that the UCR Plan Board and the
Secretary must consider the administrative costs of the UCR Plan and
UCR Agreement in setting the fee level. However, the Agency has no
evidence that any of the costs identified by OOIDA are improper or fall
outside the bounds authorized by the UCR statute.
Preliminarily, OOIDA's comment misunderstands or misstates the
authorities granted and reserved in the UCR statute. The statute
provides that the UCR Plan is responsible for developing, implementing,
and administering the UCR Agreement. (49 U.S.C. 14504a(a)(9)). The UCR
Agreement is the agreement developed by the UCR Plan for governing the
collection and distribution of fees paid, registration, and financial
responsibility information by regulated entities. (49 U.S.C.
14504a(a)(8)). Reading its requirements together, the UCR statute
establishes a framework that presumes compliance via the payment of
fees and efforts at ensuring compliance. (49 U.S.C. 14504a(f)(4)).
Contrary to OOIDA's assertion that the UCR Plan Board's authority to
issue rules and regulations is expressly limited by the statute, the
provision OOIDA cited instead directs items for which the UCR Plan must
issue rules and regulations. (49 U.S.C. 14504a(d)(2)). The statute says
the UCR Plan Board ``shall'' issue rules and regulations to govern the
UCR Agreement and that those rules and regulations ``shall'' include
the items that follow. (49 U.S.C. 14504a(d)(2)). The rules and
regulations the UCR Plan Board must issue include providing for the
administration, in other words, the functioning, carrying out, or
operation, of the UCR Agreement. (49 U.S.C. 14504a(d)(2)(B)). This
explicitly includes procedures for amending the UCR Agreement and
obtaining clarification of any provision of the UCR Agreement but does
not preclude or prohibit other rules or regulations that ``provide for
the administration'' of the UCR Agreement. (49 U.S.C. 14504a(d)(2)(B)).
The additional enforcement provisions in section 14504a(i) relate
to specific legal mechanisms and proceedings by other governmental
entities to enforce the UCR Agreement but have no impact on efforts by
the UCR Plan and the UCR Plan Board to ensure, or improve, compliance
with the UCR Agreement, which is required by statute. Indeed, ensuring
and improving compliance fall squarely within the purpose of the UCR
Agreement and the responsibilities of the UCR Plan Board. Moreover,
contrary to the assertion that section 14504a(i)(4) reserves
enforcement solely to the participating States, section 14504a(i)
begins by explicitly providing for civil lawsuits to be brought by the
Attorney General of the United States to compel compliance. The
provision OOIDA cites regarding State enforcement authority simply
makes clear that State enforcement jurisdiction is not precluded by
such Federal jurisdiction and the UCR statute. This provision does not
preclude the UCR Plan from assisting the participating 41 States in
improving compliance with the requirements of the UCR statute and the
UCR Agreement.
FMCSA agrees that much of the enforcement programing by the States
has been focused on motor carriers. However, that does not inherently
make it unfair. Motor carriers make up the vast majority of potential
fee-payors in the UCR Agreement. It is not unreasonable that the UCR
Plan and UCR Plan Board would first target compliance efforts at the
largest group. As evidence of alleged unfair enforcement efforts
directed at motor carriers OOIDA pointed to a report to the UCR Plan
Board about the efforts to increase State UCR enforcement.\24\ To gain
a fuller picture, in the RFI questions the Agency requested information
about all enforcement initiative proposals received by the UCR Plan or
UCR Plan Board since the start of 2020.\25\ In response, the UCR Plan
provided details on four enforcement proposals: (1) adding an Auditor/
Enforcement Manager position, proposed by the UCR Plan Board Audit
Chairperson; (2) mailing postcards to unregistered motor carriers,
proposed by the UCR Plan Executive Director; (3) engaging a contractor
to conduct three pilot programs targeting unregistered- and new-entrant
motor carriers domiciled in non-participating States and roadside
violations audits, proposed by the UCR Plan Executive Director and the
outside contractor; and (4) developing, hosting, and maintaining a
centralized International Registration Plan (IRP) fee calculator,
proposed by the UCR Plan Executive Director.\26\ The first three
proposals were discussed at UCR Plan Board meetings and adopted. The
fourth proposal was discussed at a UCR Plan Board meeting, and approval
was given to engage in discussions with the IRP (which rejected the
idea).\27\ The UCR Plan noted in its response that the only mechanism
for receiving suggestions and proposals is through the diverse UCR Plan
Board membership and the UCR Plan itself.\28\ The UCR Plan has no
employees and is staffed by contractors engaged by the UCR Plan Board
under its statutory authority.
---------------------------------------------------------------------------
\24\ Exhibit 1 of the first OOIDA comment available at https://www.regulations.gov/comment/FMCSA-2022-0001-0008.
\25\ See FMCSA RFI, Q9.
\26\ The Second UCR Plan Board response available at https://www.regulations.gov/comment/FMCSA-2022-0001-0116 on p. 27-30 (Q9).
\27\ The UCR Plan Board RFI response available at https://www.regulations.gov/comment/FMCSA-2022-0001-0116 on p. 27-30 (Q9),
and OOIDA's June 28 comment available at https://www.regulations.gov/comment/FMCSA-2022-0001-0113, p. 18-19.
\28\ UCR Plan RFI Response, p. 27 (Q9).
---------------------------------------------------------------------------
In response, OOIDA complained that the UCR Plan had not provided a
complete response and proceeded to list five items that were all non-
responsive to FMCSA's original RFI question, which sought information
on proposals or suggestions submitted to the UCR Plan.\29\ In the one
item close to on-point, OOIDA raised concerns that the UCR Plan and UCR
Plan Board were consistently not doing enough to enforce UCR fee
compliance by brokers, freight forwarders, and leasing companies, and
OOIDA even provided exhibits of emails and meeting minutes as evidence
that its concerns were being deliberately ignored.\30\ Contrary to
OOIDA's assertion of being ignored, however, the email chain shows
other UCR Plan Board members and FMCSA working together to answer
questions and attempt to identify the root of the problem of non-
compliance by these
[[Page 53688]]
non-motor carrier entities.\31\ A significant number of new brokers
have entered the industry in the last few years. But brokers do not
operate CMVs and are therefore not subject to roadside inspections that
would disclose whether they have paid UCR fees. The most recent data
from FMCSA and the UCR Plan shows that there are 24.615 active brokers
registered at FMCSA, compared to the 22,508 mentioned in OOIDA's First
Comment. FMCSA appreciates the difficulties that the UCR Plan has
experienced in obtaining compliance by the significant number of
brokers that have entered the industry recently. In any event, the
impact of non-compliance by brokers is minimal. Even if all of the
15,538 non-compliant active brokers paid the established fees in either
2022 or during the upcoming 2023 registration year, the revenue
contributed would be less than 1 percent.\32\ The UCR Plan Board has
approved several initiatives presented by its contractors to assist the
States in improving compliance by the large number of new brokers, and
FMCSA expects that these efforts to improve compliance by brokers with
be successful.
---------------------------------------------------------------------------
\29\ OOIDA's Second comment, p. 15-17.
\30\ OOIDA's Second comment, p. 16, Ex. A.
\31\ OOIDA's 28Second comment, p. 16, Ex. A.
\32\ This analysis is based on data presented to the UCR Plan
Board at a meeting on August 11, 2022. When this data is made
available in the minutes of the meeting, it will be added to the
docket.
---------------------------------------------------------------------------
However, while OOIDA notes that enforcement towards brokers,
freight forwarders, and leasing companies would ``require some
creativity, careful thought, and actual effort, since enforcement of
these entities cannot be carried out via roadside inspections,'' the
record provides no evidence that OOIDA has offered any proposals or
suggestions for pilots or programs that could provide a solution. OOIDA
concludes the section complaining about the pilots and initiatives
undertaken by the UCR Plan Board and assails the Plan's Executive
Director for improperly engaging in enforcement efforts. FMCSA notes
that not all pilot programs will be successful but are tests, to try
something new and see if it works. Upon the available record, the
efforts of the UCR Plan's Executive Director might more accurately be
viewed as those of an engaged organizational leader researching and
developing potential solutions and presenting solution proposals to the
Board of Directors, which oversees the UCR Plan's work and has the
authority to remove him should he fail to adequately achieve the
Board's goals.
The Agency notes that OOIDA objects that insufficient enforcement
efforts are targeted at brokers, freight forwarders, and leasing
companies, yet OOIDA (unlike other industry members of the UCR Plan
Board) did not support initiatives intended to improve compliance among
this group.\33\ Further, based on the information provided by both
OOIDA and the UCR Plan, OOIDA has not offered specific solutions, pilot
programs, or projects to address the issue that all parties seem to
agree is a problem.\34\ FMCSA does not see any improper expenditures of
funds for enforcement activities in any of the materials submitted, nor
any contravention of the UCR statute on such matters. The Agency also
observes that OOIDA inconsistently objects to the UCR Plan's use of
administrative funds to support efforts by the participating States to
enforce compliance with registration requirements while simultaneously
complaining about the alleged lack of such compliance.
---------------------------------------------------------------------------
\33\ OOIDA's Second comment, p. 16, Ex. A, Ex. B.
\34\ OOIDA's Second comment, p. 16, Ex. A, Ex. B.
---------------------------------------------------------------------------
Elsewhere OOIDA expressed concern that fees are too high because of
insufficient compliance and enforcement, but the association also
objected to the Plan's efforts to improve UCR Agreement compliance
through education and training by UCR contractors. OODIA cannot have it
both ways. The UCR statute explicitly authorizes the UCR Plan Board to
``contract with any person or any agency of a State to perform
administrative functions required under the unified carrier
registration agreement.'' (49 U.S.C. 14504a(d)(6)). The programs
administered by all of the UCR contractors, including the operator of
the online national registration system, have been implemented on
behalf of, and at the direction of, the UCR Plan Board, and will result
in greater fee-paying compliance generally. As more revenues are
collected due to increased compliance, future UCR fees will be further
reduced. Indeed, the 2010 final rule set targets for compliance by the
States in order to justify the increased fees adopted. (75 FR 21993 at
22003).
It is also important to recognize that 100 percent compliance is
not feasible for motor carriers and other entities such as brokers and
freight forwarders, as FMCSA recognized in the 2010 final rule. The fee
structure and fee levels were established in that final rule based on a
compliance rate of 86.42 percent. (75 FR at 21997) The UCR Plan's
support of the enforcement efforts by the States is an important
element for ensuring compliance with the registration and fee payment
requirements set out in the statute.
Finally, OOIDA asserted in its comment that certain UCR Plan Board
spending is inappropriate. Specifically, OOIDA objects to UCR Plan
Board members' travel to Board meetings in different locations and
other efforts to increase awareness in the industry (such as hats and
shirts bearing the UCR logo) and the States (particularly the 10 non-
participating jurisdictions) about the Plan and the registration
requirements imposed by the statute. The UCR statute specifies that the
UCR Plan Board must meet at least once per year, and additional
meetings may be called by the Board's Chairperson, a majority of the
directors, or the Secretary. (49 U.S.C. 14504a(d)(4)). The UCR statute
further explicitly requires that all directors on the UCR Plan Board be
reimbursed for those travel expenses. (49 U.S.C. 14504a(d)(3)(B)).
OOIDA submitted a copy of the UCR Plan Board's proposed meeting
schedule for 2022 seemingly to show the misuse of UCR Agreement
money.\35\ However, the planned schedule showed three planned Board
meetings by teleconference and five at locations around the country.
Similarly, subcommittee meetings were planned throughout 2022, with
eleven scheduled via teleconference and seven in-person around the
country (two of which were in conjunction with full UCR Plan Board
meetings in the same location). The Agency is mindful that open public
meetings held at different locations around the country provide an
opportunity to increase awareness of the UCR Plan and its activities,
and to enhance State enforcement with on-site training. These are
common practices for national groups with geographically disbursed
membership, and OOIDA has provided no data to support a decision that
these expenditures are improper, excessive, or beyond the authority
explicitly granted in the UCR statute. Indeed, the statute expressly
provides that, even though board members do not receive any
compensation from the U.S. government, board members and subcommittee
members are reimbursed for travel expenses. (49 U.S.C. 14504a(d)(3)).
This clearly indicates that in-person meetings at convenient locations
are contemplated by the statute for all board members, including the
OOIDA representative.
---------------------------------------------------------------------------
\35\ OOIDA's First Comment, Ex. K. In any event, FMCSA
understands that the UCR Plan is reducing the number of planned in-
person meetings for 2023.
---------------------------------------------------------------------------
In OOIDA's Second Comment it explicitly challenged, for the first
time, the proposed $250,000 UCR Plan budget increase contained in both
the UCR Plan Board's August 2021 Fee Recommendation and February 2022
[[Page 53689]]
Updated Fee Recommendation, and it challenged the UCR Plan Board's
description of ``cost escalations of various vendors'' as
``questionable.'' \36\ In calling this budget increase request into
question OOIDA noted that the UCR Plan has not fully used its
authorized budget in recent years. However, the Agency cannot ignore
the recent inflation occurring in the U.S. and global economy.\37\ The
reason provided for the requested increase is anticipated increased
costs. Particularly given the high inflation rates earlier this year,
nothing in the record credibly calls into question the UCR Plan Board's
request for additional funds due to anticipated increased costs in the
next registration year. Moreover, the most recent allowance of
administrative costs of $4,000,000 is a significant reduction from the
$5,000,000 allowance initially approved in 2007. See Fees for Unified
Carrier Registration Plan and Agreement, 72 FR 48585, 48587 (Aug 24,
2007) (adopting proposal from NPRM, 72 FR 29472, 29474 (May 29, 2007)).
In setting the UCR fees, the Secretary is required by statute to
consider the costs associated with administering the UCR Plan and UCR
Agreement and upon this record has determined that the proposed UCR
Plan budget increase of $250,000, or 6.25 percent, is appropriate and
lawful.
---------------------------------------------------------------------------
\36\ OOIDA's Second comment, p. 11.
\37\ https://www.washingtonpost.com/business/2022/07/13/inflation-june-cpi/.
---------------------------------------------------------------------------
FMCSA has reviewed the appropriateness of the expenses authorized
by the UCR Plan Board and questioned by OOIDA, as well as the requested
increase in funds for the upcoming registration year. Upon this review,
the Agency finds no evidence that the expenditures and requested budget
increase exceed the authority established in the UCR statute.
Finally, the Agency must address OOIDA's contentions regarding
contractors working for the UCR Plan Board and the UCR Plan's Executive
Director. The statute explicitly allows the UCR Plan Board, upon which
a representative of OOIDA sits, to enter into contracts with any person
or State agency to carry out administrative functions under the UCR
Agreement, so long as the UCR Plan Board retains its decision or
policy-making responsibilities. (49 U.S.C. 14504a(d)(6)). OOIDA
inaccurately accused the UCR Plan Executive Director of improperly
answering the Agency's RFI questions on behalf of the UCR Plan Board.
The UCR Plan submitted an additional comment on July 11, 2022, that
fully explained the Executive Director's role in submitting the
Information Response requested by FMCSA:
The preparation of the responses was thus purely an
administrative task for the Plan, appropriately delegated to and
overseen by . . . the Executive Director. The responses referred
back to and supported the Board's August 26, 2021 and February 22,
2022 fee change recommendations to the Agency; they did not change
those recommendations in any way. The responses also referred the
Agency to policies that the Board had duly voted on and passed
(i.e., the January 1, 2018 Reserve Fund Policy and the June 8, 2021
Fee Change Recommendation Policy, (Docket ID FMCSA-2022-0001-0010,
at Tabs I and K, respectively)); they did not articulate or rely on
any new or updated policy that would have required Board approval.
As a member of the UCR Plan Board, OOIDA has the opportunity to
engage in the oversight of the UCR Plan and the development,
implementation, and administration of the UCR Agreement. However, OOIDA
expressed concern that ``volunteer Board members do not have sufficient
time to provide detailed oversight'' of the various contractors.\38\
FMCSA is unable to address these concerns, as the UCR statute
establishes the structure wherein an unpaid Board of Directors
implements and oversees the UCR Agreement and UCR Plan. (49 U.S.C.
14504a(a)(8)-(9), (d)(3), (d)(7)). However, FMCSA urges all members of
the UCR Plan Board to become knowledgeable about their individual and
collective duties as members of the UCR Plan Board and to personally
assess, periodically, whether they have the time and ability to fulfill
those obligations.
---------------------------------------------------------------------------
\38\ OOIDA's Second comment, p. 2.
---------------------------------------------------------------------------
4. Issues Beyond the Scope of This Rulemaking
Comment: OOIDA commented about what it contends are FMCSA's past
incorrect actions or inactions. OOIDA stated that FMCSA should have
taken action to adjust the fees for 2021 and 2022.
Response: These concerns, insofar as they might involve the fees
that were in effect in 2021 and 2022 (as maintained in effect by 49 CFR
367.60) are beyond the scope of this proceeding, which involves a
recommended fee adjustment for 2023.
C. Reopening of Comment Period
As discussed above, on March 22, 2022, FMCSA sent an RFI to the UCR
Plan. On May 9, 2022, the UCR Plan provided an IR with the additional
responsive information to FMCSA,\39\ which was posted to the public
docket. Thereafter OOIDA requested an extension of the comment
period,\40\ and on June 14, 2022, FMCSA announced the reopening of the
public comment period in a Federal Register notice \41\ (87 FR 35941)
with comments due June 28, 2022. FMCSA reopened the NPRM comment period
for the limited purpose of allowing comments on the UCR Plan's IR (87
FR 35940, June 14, 2022).
---------------------------------------------------------------------------
\39\ The request and the response are available in the docket at
https://www.regulations.gov/document/FMCSA-2022-0001-0010.
\40\ Available in the docket at https://www.regulations.gov/document/FMCSA-2022-0001-0011.
\41\ Available in the docket at https://www.regulations.gov/document/FMCSA-2022-0001-0012.
---------------------------------------------------------------------------
Comments During the Reopened Comment Period
By the close of the reopened comment period on June 28, 2022, more
than 100 comments were received, including OOIDA's Second Comment, and
comments from the Western States Trucking Association. The UCR Plan
Board submitted a late comment on July 11, responding to OOIDA's Second
Comment, which FMCSA has considered, along with other submissions made
after the comment period, in accordance with 49 CFR 5.5(a)(1). To the
extent that comments OOIDA made in its Second Comment were directly
relevant to the preceding discussion, those comments have already been
addressed and will not be repeated here. The remaining issues in
OOIDA's Second Comment are addressed below.
Several of these comments contained similar language, and one
included the full appeal an organization made to its members, which
contained the language that was repeatedly submitted by other
commenters. There were several identical comments submitted that were
not germane to this rule, as they discussed or criticized the UCR Plan
as a program and go far beyond the scope of the proposal at hand. Many,
if not all such comments, were addressed to matters that would require
a statutory change.
OOIDA's Second Comment is far-ranging in scope, and the Agency has
determined it would be useful to address the issues and concerns
raised. Despite the objections voiced in OOIDA's Second Comment, the
UCR Plan Board has complied with the law in providing the 2023 fee
reduction recommendation. Further, many of the issues OOIDA raised in
its Second Comment were out of scope for this comment period and, also,
are not within FMCSA's authority to address under the UCR statute. In
recurring objections to the UCR Plan Board's
[[Page 53690]]
proposed downward fee adjustment of nearly 31 percent, OOIDA's comment
conveys significant criticisms of the UCR statute and OOIDA's
displeasure with both the UCR Plan's business accounting practices, and
the duties and time commitment involved with Board membership. Some of
OOIDA's comments also indicate that it may not fully understand the
legal obligations of volunteer members of a Board of Directors to
collectively manage and conduct oversight of an organization. The
Agency now addresses the issues raised in OOIDA's Second Comment.
Comment: OOIDA complained that UCR Plan Executive Director did not
address the legal arguments OOIDA made in its First Comment.
Response: Again, this comment is out of scope. However, in this
instance, the Agency has determined that a response is appropriate.
OOIDA fails to recognize that FMCSA did not ask the UCR Plan to provide
that information in the RFI questions. FMCSA only sought UCR Plan data
and information that was factual and administrative in nature that
would further enhance the administrative record for this rulemaking.
Substantively, as discussed above regarding OOIDA's First Comment, the
UCR Plan Board has adopted schedules and procedures that comply with
the framework established by the UCR statute.
Comment: OOIDA asserted that the UCR Fee adjustment is the
government's only real oversight authority over the UCR Plan, without
which, ``the administration of the UCR Plan is left entirely to its
contractors.''
Response: Again, this comment is out of scope. However, in this
instance, the Agency has determined that a response is appropriate. It
appears, through this comment, that OOIDA does not fully understand the
role of the UCR Plan nor acknowledge or accept the authority and
responsibility of the UCR Plan Board, upon which OOIDA holds a seat. By
statute the UCR Plan Board may contract with individuals to carry out
the work of the UCR Plan and underlying UCR Agreement, including
administrative tasks. It is the statutory responsibility of the UCR
Plan Board to conduct oversight of the UCR Plan and its contractors.
Comment: OOIDA took issue with the Agency's 14-day re-opening of
the comment period and noted the statutory timeline for FMCSA to
publish the Fee Adjustment Final Rule is 90 days from receipt of the
UCR Plan Board's recommendation.
Response: Again, this comment is out of scope. However, it raises
procedural issues, and, in this instance, the Agency has determined
that a response is appropriate. FMCSA is aware of the statutory
provision setting the deadline to issue fee adjustments following
receipt of a UCR Plan Board recommendation. See 49 U.S.C. 14504a(d)(7).
That provision requires notice and comment rulemaking and directs that
fees be set within 90 days of receiving the Board's recommendation. See
49 U.S.C. 14504a(d)(7)(B). FMCSA also recognizes that the UCR fee
collection schedule, adopted and implemented by the UCR Plan Board and
UCR Plan, is best administered if FMCSA's fee adjustment rulemaking is
finalized sufficiently in advance of the opening of a new UCR fee
collection window, or ``fee year,'' which opens October 1 of each year.
FMCSA acknowledges that it was slow to initiate this rulemaking.
FMCSA did not anticipate that, unlike previous UCR fee reduction
rulemakings, this nearly 31 percent fee reduction would be contested
and controversial. FMCSA is committed, whenever possible, to ensuring
that UCR fees are finalized and published sufficiently in advance of
the opening of the registration fee collection window to provide
certainty to registrants, the UCR Plan Board, and the participating
States that have statutory rights to UCR revenues.
Comment: OOIDA reasserted its contention that the UCR Plan Board's
adoption of policies establishing reserve funds exceeds the authority
granted in the UCR statute. Further, OOIDA reasserted that the
alternating year schedule for a UCR ``fee year'' violates the UCR
statute.
Response: Again, this comment is out of scope. However, in the
interest of thoroughness, the Agency has determined that in this
instance a response is appropriate. The Agency responds that both
issues were previously raised in OOIDA's First Comment and
substantively addressed by FMCSA above.
Comment: In response to the UCR Plan's IR answers addressing
FMCSA's RFI Questions 1 and 2, OOIDA reasserted the claim from its
First Comment that the UCR Plan was improperly holding excess funds in
violation of the UCR statute.
Response: OOIDA's discussion of these UCR Plan responses restates
arguments previously raised and does not provide new information. The
comments do not enhance the Agency's understanding of the issue at
hand. The issues raised regarding accounting, availability of funds for
an adjustment in a specific fee year, and the legality of a reserve
fund policy are all addressed above in response to OOIDA's First
Comment, and nothing in OOIDA's Second Comment alters that analysis.
Comment: In response to the UCR Plan's IR answers addressing
FMCSA's RFI Question 3, OOIDA contests for the first time the UCR Plan
Board's proposed budget increase of $250,000.00 for the UCR Plan. OOIDA
also reiterates arguments it previously raised, and FMCSA has
addressed, that contest the Board's authority to establish a ``fee
year'' based on alternating calendar years.
Response: OOIDA's objection to the requested UCR Plan budget
increase is untimely. Nonetheless, FMCSA has addressed the argument
substantively in the discussion above of OOIDA's First Comment
regarding the ``Lawfulness and Oversight of UCR Plan and UCR Plan Board
Expenses.'' Similarly, in Response to OOIDA's First Comment, FMCSA has
already addressed the UCR Plan Board's authority to establish the
alternating calendar year schedule for establishing ``fee years'' under
the statute.
Comment: In response to the UCR Plan's IR answers addressing
FMCSA's RFI Question 4, OOIDA argued that the UCR Plan response did not
follow FMCSA's directions to use plain language that could be
understood by a non-technical audience.
Response: OOIDA's comment is non-substantive, but for the sake of
completeness, FMCSA will address it. The issues being discussed are
technical in nature and require some technical language. However, to
aid readers without technical training, FMCSA sought to obtain through
RFI number four data, with a corresponding ``narrative explanation,''
to more clearly lay out what the UCR Plan Board was requesting and how
the numbers and data supported that request. The Agency directed the
UCR to avoid ``shorthand, abbreviations, or acronyms,'' as these queues
may not be readily understood by those not active on the UCR Plan Board
or employed in math-related fields. The UCR response satisfied the
request to further explain the data in the Fee Calculations
spreadsheet.
Comment: In response to the UCR Plan's IR answers addressing
FMCSA's RFI Question 5, OOIDA reiterated its contention that the UCR
Plan Board cannot implement a ``fee year'' schedule that differs from a
``calendar year.''
Response: This comment is redundant with arguments made in OOIDA's
First Comment. Accordingly, the Agency has substantively addressed it
above in the response under the heading ``Timing of Fee Adjustments and
the Meaning of ``Fee Year.''
[[Page 53691]]
Comment: In response to the UCR Plan's IR answers addressing
FMCSA's RFI Questions 6 and 7, OOIDA noted that the UCR Plan had
already collected fees for the 2022 registration year that surpassed
the revenue needed to fulfill the UCR Agreement's statutory
obligations, and that the UCR Plan had provided the requested
information.
Response: In the sixth and seventh RFI questions, which sought
revenues and registrants broken down by UCR Fee brackets, FMCSA sought
to gather data to examine the claim in OOIDA's First Comment that the
fees are not adequately ``progressive'' as required by statute. OOIDA
did not recognize the Agency's effort on this point, as evidenced by
OOIDA's (incorrect) assertion that the Agency did not seek information
on this topic in the RFI. See OOIDA's Second Comment, pg. 22.
To the extent these comments relate to the argument in OOIDA's
First Comment, that the fees are not progressive as required by
statute, the Agency has addressed the issue substantively above.
Regarding OOIDA's assertion that the fees collected for the 2022
registration year have already exceeded the UCR's statutory
obligations, as discussed above, the UCR statute explicitly
contemplates the possibility of overcollection of UCR fees and
subsequent adjustments of fees in the next ``fee year,'' which has
lawfully been established as the second, or alternating, calendar year.
Comment: In response to the UCR Plan's IR answers addressing
FMCSA's RFI Question 8, OOIDA contended that the data provided by the
UCR Plan demonstrated the consistent under-enforcement of UCR fees
against brokers, freight forwarders, and leasing companies, and
resulted in ``indefensibly higher'' fees for motor carriers. The UCR
Plan's IR response showed total freight forwarder and broker
registrations for 2020 as 22,638, and for 2021 as 29,476. OOIDA next
referred to its First Comment to say that there were 22,508 freight
forwarders and brokers registered with the Agency in calendar year 2020
(based on the date of emails in OOIDA's Ex. L). OOIDA again complained
that enforcement efforts are unfairly focused on motor carriers.
Response: According to the numbers provided, the UCR Plan collected
fees from more than 100% of FMCSA's registered brokers and freight
forwarders for calendar year 2020. This is clearly an issue that
deserves further attention from all parties. However, the data and
information provided does not support OOIDA's claim of egregious under-
compliance and under-enforcement of UCR fee payment by freight
forwarders and brokers. FMCSA also notes that adding the numbers OOIDA
cited (see OOIDA's First Comments, Ex. L) regarding freight forwarder
and broker registrations produces a total of 22,587 registered
entities, not 22,508 as OOIDA asserted.
OOIDA's repeated complaint that enforcement efforts unfairly target
motor carriers is addressed above in response to its First Comment.
Comment: In response to the UCR Plan's IR answers addressing
FMCSA's RFI Question 9, OOIDA asserted that the UCR Plan response was
incomplete. OOIDA then provided a listing and discussion of items that
it presumably believed were responsive to the question asked.
Response: OOIDA's comment responding to the UCR Plan's response to
the ninth RFI question was largely non-responsive but is otherwise
addressed above in the section entitled ``Lawfulness and Oversight of
UCR Plan and UCR Plan Board Expenses.'' In short, OOIDA complains that
the UCR Plan unfairly focuses enforcement on motor carriers. Yet the
available record does not show any meaningful efforts by OOIDA to use
its position on the UCR Plan Board to suggest and advocate for pilots
or programs to improve enforcement targeting non-MC registrants.
Comment: OOIDA also raised, for the first time, the idea that the
UCR Plan Board may not consider any matter unless it has first been
considered by the Industry Advisory Subcommittee (IAS) and the IAS has
provided a recommendation to the Board. OOIDA contended that any action
by the UCR Plan Board that was not first considered by the IAS was
contrary to law and thus invalid. OOIDA contends that the IAS had
lapsed after the prior Chairperson stepped down, that the UCR fee
adjustment recommendations had thus not been considered by the IAS, and
therefore any fee adjustment would be unlawful. In support, OOIDA cited
49 U.S.C. 14504a(d)(5)(A), which states that the UCR Plan Board must
appoint an IAS and that the IAS ``shall consider any matter before the
board and make recommendations to the board.'' 49 U.S.C.
14504a(d)(5)(A). OOIDA further complained that every other UCR Plan
Board subcommittee is statutorily required to have at least one member
representing the motor carrier industry, 49 U.S.C. 14504a(d)(5)(D), but
that in practice, this is not followed and, specifically, no motor
carrier representative sat on the Audit Subcommittee during development
of the 2023 fee proposal.
Response: OOIDA's comment is out of scope for the second comment
period. However, it raises issues of procedure and statutory authority,
and, in this instance, the Agency has determined it is appropriate to
address. OOIDA claimed for the first time that the industry advisory
subcommittee authorized by 49 U.S.C. 14504a(d)(5)(A) has not considered
the current fee adjustment. The statute, however, contains no express
language prohibiting the UCR Plan Board from considering matters that
have not first been considered by the IAS, and FMCSA does not infer
congressional intent to create such a prohibition. The Plan Board is
the principal governing body for implementation of the URC Agreement.
The IAS is, by definition and statute, its subcommittee. Therefore a
more logical inference of congressional intent, consistent with the
ordinary functioning of subcommittees, is that through section
14504a(d)(5)(A) Congress intended to restrict the universe of matters
the subcommittee could consider to just those matters that come before
the Plan Board. If the committee decides not to consider such a matter,
or is unable to do so, the UCR Plan Board nevertheless may consider and
act on the matter. During such consideration by the UCR Plan Board, the
five industry members, including a member from OOIDA, have an
opportunity to consider the matter and express the industry's views.
Regarding composition of the other subcommittees and any absence of a
motor carrier representative, the OOIDA representative and other
members could have raised any issue about the activities of the IAS or
other subcommittees during any board meeting.
The statute explicitly directs the Chairperson to appoint an IAS.
The statute also states that the chair of each subcommittee must be a
director on the UCR Plan Board and that for the IAS, membership is
reserved exclusively to representatives of entities that are required
to pay the UCR fees. 49 U.S.C. 14504a(d)(5)(C), (D). For the IAS then,
the chairperson must be one of the five directors representing the fee-
paying industry. This point was also highlighted in an exchange OOIDA
provided in its Second Comment, that when OOIDA asked why the IAS had
lapsed the response was that ``it hadn't'' but that the IAS's role had
diminished since the former IAS chair retired--this was viewed as
acceptable since everyone on the IAS was also already a member of the
UCR Plan Board. It followed, then, that the IAS work was
[[Page 53692]]
simply occurring within the larger Board meetings. OOIDA finds this
answer unsatisfactory, and so does the Agency. However, there is scant
evidence in the record that any member of the UCR Plan Board or
professional contractors identified this issue for some time. However,
the failure of the IAS to be formally appointed, meet, consider matters
before the UCR Plan Board and provide recommendations does not render
all actions of the UCR Plan Board unlawful, as OOIDA suggested. The
instructions that the IAS consider any matter before the UCR Plan Board
is a directive to the IAS, spelling out its obligations to those who
would hold a seat on that subcommittee. The alternative reading that
OOIDA advocates would have the absurd result that the IAS could prevent
the UCR Plan Board from taking action on any matter simply by declining
to consider it. The statute does not state that the UCR Plan Board has
an obligation to receive a recommendation from the IAS before acting.
FMCSA does agree, however, that the IAS should be formally
reconstituted and understands that this process has begun with the May
19, 2022, initial organization meeting.
FMCSA also agrees with OOIDA regarding the concern that the motor
carrier industry is not consistently represented on all subcommittees.
Consistent compliance with this statutory requirement would provide
additional oversight on the UCR Plan activities. FMCSA believes it is
appropriate for OOIDA and all other industry representatives on the
Board to use their positions to ensure that such participation happens,
whether by UCR directors representing the motor carrier industry or
non-directors, as allowed by statute. (49 U.S.C. 14504a(d)(5)(C)).
Again though, a mere opportunity for improved motor carrier
representation on UCR subcommittees does not render actions of the Plan
Board, including these proposed fee adjustments, unlawful or invalid.
VI. Changes From the NPRM
The proposed fees in the NPRM are modified based upon the UCR Plan
Board's updated recommendation submitted in its February 2022 Fee
Recommendation. Instead of a fee reduction for the 2023 registration
year of approximately 27 percent for all fee brackets, as proposed in
the NPRM, this final rule adopts an even greater fee reduction of
approximately 31 percent for all fee brackets. See the section-by-
section discussion below for additional detail.
VII. International Impacts
Motor carriers and other entities involved in interstate and
foreign transportation in the United States that do not have a
principal office in the United States are nonetheless subject to the
fees for the UCR Plan. They are required to designate a participating
State as a base State and pay the appropriate fees to that State (49
U.S.C. 14504a(a)(2)(B)(ii) and (f)(4)).
VIII. Final 2023 State UCR Revenue Entitlements and Revenue Targets
The recommendation from the UCR Plan, as indicated above, is an
adjustment from $4,000,000 to $4,250,000 for administrative costs,
resulting in a total revenue target of $112,027,060. The adjustment is
based on an analysis approved by the board of directors that indicated
that legal expenses for the administration of the UCR Agreement will be
higher on an ongoing basis. Therefore, in accordance with 49 U.S.C.
14504a(d)(7) and (g)(4), FMCSA approves the following table of State
revenue entitlements, administrative costs, and the total revenue
target under the UCR Agreement, as proposed in the NPRM. These State
revenue entitlements, the administrative costs, and the total revenue
target will remain in effect for 2023 and subsequent years unless and
until approval of a revision occurs.
State UCR Revenue Entitlements and Final 2023 Total Revenue Target
------------------------------------------------------------------------
Total 2023 UCR
State revenue
entitlements
------------------------------------------------------------------------
Alabama............................................... $2,939,964.00
Arkansas.............................................. 1,817,360.00
California............................................ 2,131,710.00
Colorado.............................................. 1,801,615.00
Connecticut........................................... 3,129,840.00
Georgia............................................... 2,660,060.00
Idaho................................................. 547,696.68
Illinois.............................................. 3,516,993.00
Indiana............................................... 2,364,879.00
Iowa.................................................. 474,742.00
Kansas................................................ 4,344,290.00
Kentucky.............................................. 5,365,980.00
Louisiana............................................. 4,063,836.00
Maine................................................. 1,555,672.00
Massachusetts......................................... 2,282,887.00
Michigan.............................................. 7,520,717.00
Minnesota............................................. 1,137,132.30
Missouri.............................................. 2,342,000.00
Mississippi........................................... 4,322,100.00
Montana............................................... 1,049,063.00
Nebraska.............................................. 741,974.00
New Hampshire......................................... 2,273,299.00
New Mexico............................................ 3,292,233.00
New York.............................................. 4,414,538.00
North Carolina........................................ 372,007.00
North Dakota.......................................... 2,010,434.00
Ohio.................................................. 4,813,877.74
Oklahoma.............................................. 2,457,796.00
Pennsylvania.......................................... 4,945,527.00
Rhode Island.......................................... 2,285,486.00
South Carolina........................................ 2,420,120.00
South Dakota.......................................... 855,623.00
Tennessee............................................. 4,759,329.00
Texas................................................. 2,718,628.06
Utah.................................................. 2,098,408.00
Virginia.............................................. 4,852,865.00
Washington............................................ 2,467,971.00
West Virginia......................................... 1,431,727.03
Wisconsin............................................. 2,196,680.00
-----------------
Subtotal.......................................... 106,777,059.81
Alaska................................................ 500,000.00
Delaware.............................................. 500,000.00
-----------------
Total State Revenue Entitlement................... 107,777,060.00
Administrative Costs.............................. 4,250,000.00
Total Revenue Target.......................... 112,027,060.00
------------------------------------------------------------------------
IX. Section-by-Section Analysis
In this rule, FMCSA removes 49 CFR 367.20, 367.30, 367.40, and
367.50. These sections established fees applicable for registration
years from 2007 to and including 2019. The UCR Plan is no longer
collecting fees for those registration years, and these sections are
removed to avoid confusion or uncertainty about the applicable fees.
FMCSA redesignates 49 CFR 367.60 as 49 CFR 367.20 and revises the
provisions of that section (which were adopted in the 2020 final rule)
so that the fees apply to registration years 2020, 2021, and 2022 only.
A new 49 CFR 367.30 establishes new reduced fees applicable beginning
in registration year 2023, based on the revised recommendation
submitted by the UCR Plan Board in its February 2022 Updated Fee
Recommendation, which it submitted as a comment to the public docket
for the NPRM. These fees will remain in effect for subsequent
registration years after 2023 unless revised by a future rulemaking.
The fees in this section are lower than proposed in the NPRM in
recognition of the updated recommendation submitted by the UCR Plan
Board in its February 2022 Updated Fee Recommendation.
[[Page 53693]]
X. Regulatory Analyses
A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O.
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory
Policies and Procedures
FMCSA has considered the impact of this final rule under E.O. 12866
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563
(76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory
Review, and DOT's regulatory policies and procedures. The Office of
Information and Regulatory Affairs within OMB determined that this
final rule is not a significant regulatory action under section 3(f) of
E.O. 12866, as supplemented by E.O. 13563, and does not require an
assessment of potential costs and benefits under section 6(a)(3) of
that Order. Accordingly, OMB has not reviewed it under these Orders.
The changes in this rule reduce the registration fees paid by motor
carriers, motor private carriers of property, brokers, freight
forwarders, and leasing companies to the UCR Plan and the participating
States. While each motor carrier will realize a reduced burden, fees
are considered by OMB Circular A-4, Regulatory Analysis as transfer
payments, not costs. Transfer payments are payments from one group to
another that do not affect total resources available to society. By
definition, transfers are not considered in the monetization of
societal costs and benefits of rulemakings.
This rule reduces annual registration fees for the UCR Plan and
Agreement. The entities affected by this rule are the participating
States, motor carriers, motor private carriers of property, brokers,
freight forwarders, and leasing companies, and the fee reduction for
these entities is the rule's primary impact. Because the State UCR
revenue entitlements remain unchanged by this rule, the participating
States are not economically impacted. The recommended reduction from
the current 2020 registration year fees (approved by the Board on
August 12, 2021) and modified in February 2022, is just under 31
percent, or about $18 in the lowest bracket and $17,688 in the highest
bracket, per entity, depending on the number of vehicles owned or
operated.
B. Congressional Review Act
This rule is not a major rule as defined under the Congressional
Review Act (5 U.S.C. 801-808).'' \42\
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\42\ A ``major rule'' means any rule that 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, geographic regions, Federal,
State, or local government agencies; 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 (49 CFR 389.3).
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C. Regulatory Flexibility Act (Small Entities)
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), as
amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (SBREFA),\43\ 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 (5
U.S.C. 601(6)). 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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\43\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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This rule directly affects the participating States, motor
carriers, motor private carriers of property, brokers, freight
forwarders, and leasing companies. Under the standards of the RFA, as
amended by the SBREFA, the participating States are not small entities.
States are not considered small entities because they do not meet the
definition of a small entity in section 601 of the RFA. Specifically,
States are not considered small governmental jurisdictions under
section 601(5) of the RFA, both because State government is not
included among the various levels of government listed in section
601(5), and because, even if this were the case, no State or the
District of Columbia has a population of less than 50,000, which is the
criterion by which a governmental jurisdiction is considered small
under section 601(5) of the RFA.
The Small Business Administration's (SBA) size standard for a small
entity (13 CFR 121.201) differs by industry code. The entities affected
by this rule fall into many different industry codes. In order to
determine if this rule impacts a significant number of small entities,
FMCSA examined the 2017 Economic Census data \44\ for two different
industries, truck transportation (Subsector 484) and transit and ground
transportation (Subsector 485).
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\44\ U.S. Census Bureau, 2017 US Economic Census. Available at
https://data.census.gov/cedsci/table?q=United%20States&t=Value%20of%20Sales,%20Receipts,%20Revenue,%20or%20Shipments&n=484&tid=ECNSIZE2017.EC1700SIZEREVEST&hidePreview=true (accessed Dec. 28, 2021).
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According to the 2017 Economic Census, approximately 99.4 percent
of truck transportation firms, and approximately 99.2 percent of
transit and ground transportation firms, had annual revenue less than
the SBA's revenue thresholds of $30 million and $16.5 million,
respectively, to be defined as a small entity. Therefore, FMCSA has
determined that this rule impacts a substantial number of small
entities. However, FMCSA has determined that this rule will not have a
significant impact on the affected entities. The effect of this rule is
to reduce the annual registration fee motor carriers, motor private
carriers of property, brokers, freight forwarders, and leasing
companies are currently required to pay. The reduction will range from
$18 to $17,688 per entity, depending on the number of vehicles owned
and/or operated by the affected entities.
Consequently, I certify that this action will not have a
significant economic impact on a substantial number of small entities.
D. Assistance for Small Entities
In accordance with section 213(a) of the Small Business Regulatory
Enforcement Fairness Act of 1996,\45\ 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 person listed
under FOR FURTHER INFORMATION CONTACT.
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\45\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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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 (Office of the National
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-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-
[[Page 53694]]
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 $170 million (which is the
value equivalent of $100 million in 1995, adjusted for inflation to
2020 levels) or more in any 1 year. Although this rule would not result
in such an expenditure, the Agency discusses the effects of this rule
elsewhere in this preamble.
F. Paperwork Reduction Act
This rule contains no new information collection requirements 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 E.O.
13132 if it has ``substantial direct effects on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government.''
FMCSA has determined that this rule would not have substantial
direct costs on or for States, nor would it limit the policymaking
discretion of States. Nothing in this document preempts any State law
or regulation. Therefore, this rule does not have sufficient federalism
implications to warrant the preparation of a Federalism Impact
Statement.
H. Privacy
The Consolidated Appropriations Act, 2005, requires the Agency to
assess the privacy impact of a regulation that will affect the privacy
of individuals. This final rule would not require the collection of
personally identifiable information.
The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies
and any non-Federal agency that receives records contained in a system
of records from a Federal agency for use in a matching program.
The E-Government Act of 2002, requires Federal agencies to conduct
a Privacy Impact Assessment (PIA) for new or substantially changed
technology that collects, maintains, or disseminates information in an
identifiable form. No new or substantially changed technology would
collect, maintain, or disseminate information as a result of this rule.
Accordingly, FMCSA has not conducted a PIA.
I. 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.
J. National Environmental Policy Act of 1969
FMCSA analyzed this rule pursuant to 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), Appendix 2, paragraph 6.h. The Categorical
Exclusion (CE) in paragraph 6.h. covers regulations and actions taken
pursuant to regulation implementing procedures to collect fees that
will be charged for motor carrier registrations. The requirements in
this rule are covered by this CE and do not have any effect on the
quality of the environment.
List of Subjects in 49 CFR Part 367
Intergovernmental relations, Motor carriers, Brokers, Freight
Forwarders.
0
In consideration of the foregoing, FMCSA revises 49 CFR chapter III,
part 367 to read as follows:
PART 367--STANDARDS FOR REGISTRATION WITH STATES
Sec.
367.20 Fees under the Unified Carrier Registration Plan and
Agreement for registration years beginning in 2020 and ending in
2022
367.30 Fees under the Unified Carrier Registration Plan and
Agreement for Registration Years Beginning in 2023 and Each
Subsequent Registration Year Thereafter.
Authority: 49 U.S.C. 13301, 14504a; and 49 CFR 1.87. Sec. Sec.
367.20, 367.30 367.40, 367.50.
Sec. 367.20 Fees under the Unified Carrier Registration Plan and
Agreement for registration years beginning in 2020 and ending in 2022.
Table 1 to Sec. 367.20--Fees Under the Unified Carrier Registration Plan and Agreement for Registration Years
Beginning in 2020 and Ending in 2022
----------------------------------------------------------------------------------------------------------------
Number of commercial motor
vehicles owned or operated Fee per entity for
by exempt or non-exempt exempt or non-exempt Fee per entity
Bracket motor carrier, motor motor carrier, motor for broker or
private carrier, or freight private carrier, or leasing company
forwarder freight forwarder
----------------------------------------------------------------------------------------------------------------
B1....................................... 0-2........................ $59 $59
B2....................................... 3-5........................ 176
B3....................................... 6-20....................... 351
B4....................................... 21-100..................... 1,224
B5....................................... 101-1,000.................. 5,835
B6....................................... 1,001 and above............ 56,977
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[[Page 53695]]
Sec. 367.30 Fees under the Unified Carrier Registration Plan and
Agreement for Registration Years Beginning in 2023 and Each Subsequent
Registration Year Thereafter.
Table 1 to Sec. 367.30--Fees Under the Unified Carrier Registration Plan and Agreement for Registration Years
Beginning in 2023 and Each Subsequent Registration Year Thereafter
----------------------------------------------------------------------------------------------------------------
Number of commercial motor
vehicles owned or operated Fee per entity for
by exempt or non-exempt exempt or non-exempt Fee per entity
Bracket motor carrier, motor motor carrier, motor for broker or
private carrier, or freight private carrier, or leasing company
forwarder freight forwarder
----------------------------------------------------------------------------------------------------------------
B1....................................... 0-2........................ $41 $41
B2....................................... 3-5........................ 121
B3....................................... 6-20....................... 242
B4....................................... 21-100..................... 844
B5....................................... 101-1,000.................. 4,024
B6....................................... 1,001 and above............ 39,289
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Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-18944 Filed 8-31-22; 8:45 am]
BILLING CODE 4910-EX-P
