This PDF is the current document as it appeared on Public Inspection on 05/23/2013 at 08:45 am.
Federal Motor Carrier Safety Administration (FMCSA), DOT.
Notice of proposed rulemaking (NPRM); request for comments.
FMCSA proposes to eliminate the quarterly financial reporting requirements for certain for-hire motor carriers of property (Form QFR) and for-hire motor carriers of passengers (Form MP-1). This paperwork burden can be removed without an adverse impact on safety or the Agency´s ability to maintain effective commercial regulatory oversight over the for-hire trucking and passenger-carrying industries.
You may submit comments by July 23, 2013.
You may submit comments identified by docket number FMCSA-2012-0020 using any one of the following methods:
(1) Federal eRulemaking Portal: http://www.regulations.gov.
(2) Fax: 202-493-2251.
(3) Mail: Docket Management Facility (M-30), U.S. Department of Transportation, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.
(4) Hand delivery: Same as mail address above, between 9 a.m. and 5 p.m. e.t., Monday through Friday, except Federal holidays. The telephone number is 202-366-9329.
To avoid duplication, please use only one of these four methods. See the “Public Participation and Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.Start Further Info
FOR FURTHER INFORMATION CONTACT:
If you have questions on this proposal, email or call Ms. Vivian Oliver, Office of Research and Information Technology, Federal Motor Carrier Safety Administration, 1200 New Jersey Ave. SE., Washington, DC 20590; Telephone 202-366-2974; email Vivian.Oliver@dot.gov.End Further Info End Preamble Start Supplemental Information
Public Participation and Comments
If you would like to participate in this rulemaking, you may submit comments and related materials. All comments received will be posted, without change, to http://www.regulations.gov and will include any personal information you have provided.
If you submit a comment, please include the docket number for this rulemaking (FMCSA-2012-0020), indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation. You may submit your comments and material online or by fax, mail, or hand delivery, but please use only one of these means. FMCSA recommends that you include your name and a mailing address, an email address, or a phone number in the body of your document so the Agency can contact you if it has questions regarding your submission.
To submit your comment online, go to http://www.regulations.gov and insert “FMCSA-2012-0020” in the “Search” box, and then click the “Search” button to the right of the white box. Click on the top “Comment Now” box which appears next to the notice. Fill in your contact information, as desired and your comment, uploading documents if appropriate. If you submit your comments by mail or hand delivery, submit them in an unbound format, no larger than 81/2; by 11 inches, suitable for copying and electronic filing. If you submit comments by mail and would like to know that they reached the facility, please enclose a stamped, self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the comment period and may change this proposed rule based on your comments.
Viewing Comments and Documents
To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov and insert “FMCSA-2012-0020” in the “Search” box and then click on “Search.” Click on the “Open Docket Folder” link and all the information for the notice, and Start Printed Page 31476the list of comments will appear with a link to each one. Click on the comment you would like to read.
Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). You may review a Privacy Act notice regarding our public dockets in the January 17, 2008, issue of the Federal Register (73 FR 3316).
Purpose of the Proposal
This action is in response to a recommendation received by the public in response to Executive Order 13563, “Improving Regulation and Regulatory Review,” which required FMCSA, among other things, to prepare plans for reviewing existing rules. One person argued that the financial reporting requirements transferred from the Interstate Commerce Commission (ICC) to FMCSA provide no discernible benefits to the government or motor carrier industry.
Summary of the Major Provision
The proposal would eliminate the quarterly financial reporting requirements for certain for-hire motor carriers of property and for-hire motor carriers of passengers. This paperwork burden can be removed without an adverse impact on safety or the Agency´s ability to maintain effective commercial regulatory oversight over the for-hire trucking and passenger-carrying industries.
Costs and Benefits
FMCSA estimates that eliminating these reporting requirements would reduce the burden to industry by about 200 hours and $9,900 annually. Table ES-1 displays the average annual net costs and benefits that we are proposing.
Annual Financial Reporting Requirements
Section 14123 of title 49 of the United States Code (U.S.C.) requires certain for-hire motor carriers of property and household goods to file annual financial reports. The annual reporting program was implemented on December 24, 1938 (3 FR 3158), and it was subsequently transferred from the Interstate Commerce Commission (ICC) to the U.S. Department of Transportation's (DOT) Bureau of Transportation Statistics (BTS) on January 1, 1996. The Secretary of DOT delegated to BTS the responsibility for the program on December 17, 1996 (61 FR 68162). Annual financial reports are filed on Form M (for-hire property carriers, including household goods carriers) and Form MP-1 (for-hire passenger carriers). Responsibility for collection of the reports was transferred from BTS to FMCSA on August 17, 2004 (69 FR 51009), and the regulations were redesignated as 49 CFR part 369 on August 10, 2006 (71 FR 45740). FMCSA has continued to collect carriers' annual reports and to furnish copies of the reports requested under the Freedom of Information Act.
Quarterly Financial Reporting
Section 14123(a)(2) of 49 U.S.C. allows, but does not require, the Agency to require for-hire property and passenger carriers to file quarterly financial reports. These requirements are included in 49 CFR part 369 and apply to Class I (average annual gross transportation operating revenues of $10 million or more) and Class II (average annual gross transportation operating revenues of $3 million dollars or more, but less than $10 million) for-hire motor carriers of property. The requirements also apply to Class I (average annual gross transportation operating revenues of $5 million or more) for-hire motor carriers of passengers.
E.O. 13563 Improving Regulation and Regulatory Review
On January 18, 2011, the President issued Executive Order (E.O.) 13563, “Improving Regulation and Regulatory Review,” 76 FR 3821 (Jan. 21, 2011), which required agencies, among other things, to prepare plans for reviewing existing rules. On February 16, 2011, DOT published a notice requesting comments on its regulatory review plan (76 FR 8940). A public meeting on this issue was held on March 14, 2011. DOT placed all of the comments it received in docket DOT-OST-2011-0025, along with a transcript of the March 14 meeting. DOT received 102 comments, many offering multiple suggestions. One person argued that the financial reporting requirements transferred from the ICC to FMCSA provide no discernible benefits to the government or motor carrier industry.
Direct Final Rule
On June 27, 2012, FMCSA published a direct final rule that would have eliminated the quarterly financial reporting requirements for certain for-hire motor carriers of property (Form QFR) and for-hire motor carriers of passengers (Form MP-1 Quarterly) if no adverse comments were received by July 27, 2012 (77 FR 38211). One entity, SJ Consulting Group, submitted adverse comments and stated that it uses the quarterly financial information to advise motor carriers, shippers, and persons interested in buying motor carriers. It argued that the quarterly reports provide useful insight into the U.S. trucking industry, such as operating statistics that are not available from other public sources, particularly for private carriers. Although SJ Consulting conceded that some data on general demand and pricing trends are available from other sources, it argued that quarterly data on the profitability of carriers are essential in providing safe and timely service to shippers, estimating future growth rates, and assessing opportunities for profitable investment in the trucking industry. SJ Consulting has used Form QFR reports for these purposes for many years. FMCSA considered this an adverse comment which caused the Agency to therefore withdraw the direct final rule on August 27, 2012 (77 FR 51705).
Although FMCSA considered SJ Consulting's comment adverse for the direct final rule, it continues to believe the quarterly financial reporting requirements for certain for-hire motor carriers of property (Form QFR) and for-hire motor carriers of passengers (Form MP-1 Quarterly) can be eliminated without an adverse impact on safety. SJ Consulting and others that have used the quarterly report will still be able to use the annual Form M and Form MP-1 reports which are not being rescinded in this proposed rule. SJ Consulting can still advise motor carriers, shippers, and persons interested in buying for-hire motor carriers of freight using 112 annual reports through Form M's and Form MP-1's operating statistics and data on general demand, pricing, and profitability to estimate future growth rates, and to assess opportunities for profitable investment in the for-hire truck and motorcoach industries. The Agency also continues to believe Start Printed Page 31477removal of the quarterly financial reporting requirements will have no impact on the Agency's ability to maintain effective commercial regulatory oversight over the for-hire trucking and passenger-carrying industries.
The information submitted to FMCSA does not help the Agency with any decisions the Agency needs to make with regard to raising the safety bar to enter the motor carrier industry, maintaining high standards to remain in the industry, and removing unsafe operators. The implementation of these three core principles is not contingent upon financial reporting data. The information collected does not currently support any Agency regulatory function, nor does it have practical utility for the Agency or for those carriers who must comply with the reporting requirement.
Discussion of the Proposal
For the reasons discussed in the Background section, above, FMCSA proposes to amend 49 CFR part 369 by eliminating the quarterly reporting requirement under 49 CFR 369.1 and 369.4. In addition, FMCSA would make other conforming technical amendments to 49 CFR 369.8, 369.9, and 369.11. This proposal does not affect the annual reporting requirements, which still must be prepared and filed as required by statute (49 U.S.C. 14123(a)(1)).
When developing this NPRM, FMCSA considered numerous statutes and executive orders related to rulemaking. The Agency's analyses are summarized below.
Regulatory Planning and Review
Under E.O. 12866 (58 FR 51735, Oct. 4, 1993) as supplemented by E.O. 13563 (76 FR 3821, Jan. 18, 2011), FMCSA must determine whether a regulatory action is “significant” and, therefore, subject to Office of Management and Budget (OMB) review and the requirements of the E.O. The Order defines “significant regulatory action” as one that is likely to result in a rule that may:
(1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.
(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.
(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof.
(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the E.O.
This rulemaking is not a significant regulatory action under section 3(f) of E.O. 12866, and does not require an assessment of potential costs and benefits under section 6(a)(3) of that Order. This rulemaking will not have a significant economic impact. In fact, elimination of the reporting requirement will, if anything, have a beneficial economic impact on the motor carrier industry through reduced reporting costs. Consequently, the OMB has not reviewed it under that Order.
Under the Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121, Title II, 110 Stat. 857), when an agency issues a rulemaking proposal, the RFA requires the agency to “prepare and make available for public comment an initial regulatory flexibility analysis” that will “describe the impact of the proposed rule on small entities” (5 U.S.C. sec. 603(a)).
FMCSA has determined that the impact on entities affected by the proposed rule will not be significant. In fact, the existing burden from quarterly reporting will be eliminated. FMCSA expects the impact of the proposed rule will be a reduction in the paperwork burden for for-hire motor carriers. FMCSA asserts that the economic impact of the reduction in paperwork, if any, will be minimal and entirely beneficial to small for-hire motor carriers. As can be seen below under section C., Paperwork Reduction Act, FMCSA estimates eliminating these reporting requirements reduces the burden to the for-hire motor carrier industry by about 200 hours and $9,900 annually.
The courts have held that “a regulatory flexibility analysis is required when an agency determines that the rule will have a significant economic impact on a substantial number of small entities that are subject to the requirements of the rule.”  The RFA does not require FMCSA to consider the effect of this proposal on entities that are not subject to the rule. Although SJ Consulting Group filed an adverse comment to the FMCSA's June 27, 2012, direct final rule, it is not a for-hire motor carrier and, therefore, not subject to the current financial reporting rule. Consequently, FMCSA has determined that this proposed rule will not have an impact on a substantial number of small entities that are subject to the requirements of the rule.
Section 605 of the RFA allows an agency to certify a rule, in lieu of preparing an analysis, if the proposed rulemaking is not expected to have a significant economic impact on a substantial number of small entities regulated by FMCSA. This proposed rule directly affects 112 for-hire motor carriers that prepare and file quarterly financial reports under per 49 CFR part 369. FMCSA estimates that approximately 10 percent of these 112 for-hire motor carriers are small entities with average annual gross transportation operating revenues of no more than $23.5 million. The current requirement to file quarterly financial reports applies only to for-hire motor carriers of property with average annual gross transportation operating revenues of $3 million dollars or more, and $5 million or more for passenger carriers.
Accordingly, the Administrator of the FMCSA hereby certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities. FMCSA invites comment from members of the public who believe there will be a significant impact on a substantial number of small for-hire motor carriers.
Paperwork Reduction Act
This rulemaking eliminates two quarterly reporting requirements that are currently reported to OMB under the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520).
Quarterly Report for 110 Property Carriers
Form QFR Quarterly for property carriers, authorized by OMB under information collection 2126-0033, is two pages long and takes approximately 27 minutes for each of the approximately 110 carriers to complete. This report is filed 4 times per year, so the total burden-hour impact per filer per year is 4 × 27/60 = 1.8 hours. Multiplying this figure by the 110 carriers that file quarterly reports yields a total burden estimate of 198 hours.
FMCSA assumes that completion and submission of Form QFR is performed by an accountant designated by the Start Printed Page 31478business entity. The median salary of an accountant in the truck transportation industry is $25.90 per hour (BLS, May 2010). Two adjustments are made to this hourly compensation estimate. First, employee benefits are estimated at 50.0 percent of the employee wage. Second, employee wage and benefits are increased by 27 percent to include relevant firm overhead. Applying the estimated 50.0 percent factor for employee benefits and 27 percent for overhead results in $49.34 in hourly compensation for the accountant ($25.90 × (1 + 0.50) × (1 + 0.27) = $49.34). The total annual salary cost burden associated with the filings is $9,770 rounded up ($49.34 × 198 hours = $9,769.32).
Quarterly Report for 2 Passenger Carriers
The Class I passenger carrier financial quarterly survey (Form MP-1 Quarterly), which is two pages long and takes about 18 minutes to complete for the estimated 2 participating carriers, is authorized by OMB under information collection 2126-0031. Since this report is also filed 4 times per year, the total burden hours associated with the requirement are 4 x 18/60 x 2 = 2.4 hours.
FMCSA believes the completion and submission of Form MP-1 Quarterly is typically performed by a business and financial operations expert designated by the business entity because of the level of detail in the financial reports. The median salary of a business and financial operations expert in the interurban and rural bus transportation industry is $26.41 per hour (BLS, May 2010). Two adjustments are made to this hourly estimate. First, employee benefits are estimated at 50.0 percent of the employee wage. Second, employee wage and benefits are increased by 27 percent to include relevant firm overhead. Applying the estimated 50.0 percent factor for employee benefits and 27 percent for overhead results in $50.31 in hourly compensation for the business and financial operations expert ($26.41 × (1 + 0.50) × (1 + 0.27) = $50.31). The total annual salary cost burden associated with the filings is $121 ($50.31 × 2.4 hours = $120.74, rounded to the nearest dollar).
Collectively, eliminating these reporting requirements reduces the burden to industry by 200.4 hours and $9,891 annually, rounded to 200 hours and $9,900, respectively.
The PRA requires that each agency “shall certify . . . that each collection of information . . . is necessary for the proper performance of the functions of the agency, including that the information has practical utility” (44 U.S.C. 3506(c)(3)(A); 5 CFR 1320.5(d)(1)(iii)). FMCSA can no longer certify that the quarterly requirements are “necessary for the proper performance of the functions of the agency.” Therefore, FMCSA is proposing to discontinue the quarterly reporting requirements.
A rule has federalism implications under E.O. 13132, Federalism, if it has a substantial direct effect on State or local governments and would either preempt State law or impose a substantial direct cost of compliance on the States. FMCSA has analyzed this rulemaking under that Order and has determined that it does not have federalism implications.
Unfunded Mandates Reform Act
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 $143.1 million (which is the value of $100,000,000 in 2010 after adjusting for inflation) or more in any 1 year. This rulemaking would not result in such an expenditure.
Taking of Private Property
This rulemaking will not effect a taking of private property or otherwise have taking implications under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.
Civil Justice Reform
This rulemaking meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.
Protection of Children
FMCSA analyzed this NPRM under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. This NPRM is not economically significant and does not create an environmental risk to health or risk to safety that may disproportionately affect children.
FMCSA analyzed this NPRM under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agency determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under E.O. 12866 and will not have a significant adverse effect on the supply, distribution, or use of energy. The Administrator of the Office of Information and Regulatory Affairs has not designated it as a significant energy action. Therefore, it does not require a Statement of Energy Effects under E.O. 13211.
The Agency analyzed this NPRM for the purpose of the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321, et seq.) and determined under our environmental procedures Order 5610.1, published March 1, 2004 (69 FR 9680), that this action is excluded from further environmental documentation under two categorical exclusions (CEs). These are found in Appendix 2, paragraph 4, which covers data and information gathering, and Appendix 2, paragraph 6(y)(2) concerning reports provided by motor carriers. The action involves no extraordinary circumstances that would have any effect on the quality of the environment. Thus, the action does not require an environmental assessment or an environmental impact statement. The Categorical Exclusion Determination is available for inspection or copying in Start Printed Page 31479the regulations.gov Web site listed under ADDRESSES.
FMCSA also analyzed this NPRM under the Clean Air Act, as amended (CAA), section 176(c), as amended (42 U.S.C. 7401 et seq.), and implementing regulations promulgated by the Environmental Protection Agency. Approval of this action is exempt from the CAA's general conformity requirement since it does not result in any potential increase in emissions that are above the general conformity rule's de minimis emission threshold levels (40 CFR 93.153(c)(2)). This action merely eliminates a reporting requirement.
Additionally, FMCSA evaluated the effects of this rule in accordance with Executive Order 12898 and determined that there are no environmental justice issues associated with its provisions nor any collective environmental impacts resulting from its promulgation. Environmental justice issues would be raised if there were “disproportionate” and “high and adverse impact” on minority or low-income populations. This NPRM is exempt from analysis under the National Environmental Policy Act due to a categorical exclusion. This proposal simply eliminates a paperwork requirement and would not result in high and adverse environmental impacts.Start List of Subjects
List of Subjects in 49 CFR Part 369
- Motor carriers
- Reporting and recordkeeping requirements
In consideration of the foregoing, FMCSA proposes to amend part 369 in 49 CFR chapter III, subchapter B, as follows:Start Part
PART 369 [AMENDED]End Part Start Amendment Part
1. The authority citation for part 369 continues to read as follows.End Amendment Part Start Amendment Part
2. Amend § 369.1, by removing paragraph (b) and redesignating paragraph (c) as paragraph (b) and revising it to read as follows.End Amendment Part
(b) Where to file report. Carriers must file the annual report with the Federal Motor Carrier Safety Administration at the address in § 369.6. You can obtain blank copies of the report form from the Federal Motor Carrier Safety Administration Web site http://www.fmcsa.dot.gov/forms/reporting/mcs_info.htm#fos.
3. Revise § 369.4 to read as follows.End Amendment Part
(a) All Class I motor carriers of passengers shall complete and file Motor Carrier Annual Report Form MP-1 for Motor Carriers of Passengers (Form MP-1).
(b) Accounting period. (1) Motor Carrier Annual Report Form MP-1 shall be used to file annual selected motor carrier data.
(2) The annual accounting period shall be based either (i) on the 31st day of December in each year, or (ii) an accounting year of thirteen 4-week periods ending at the close of the last 7 days of each calendar year.
(3) A carrier electing to adopt an accounting year of thirteen 4-week periods shall file with the FMCSA a statement showing the day on which its accounting year will close. A subsequent change in the accounting period may not be made except by authority of the FMCSA.
(c) The annual report shall be filed on or before March 31 of the year following the year to which it relates. The annual report shall be filed in duplicate with the Federal Motor Carrier Safety Administration at the address in § 369.6. Copies of Form MP-1 may be obtained from the FMCSA.
4. Amend § 369.8 by revising paragraphs (a) and (d) to read as follows.End Amendment Part
(a) General. This section governs requests for exemptions from filing of the report required under § 369.1 of this part.
(d) When requests are due. The timing of a request for an exemption from filing is the same as the timing for a request for an exemption from public release contained in § 369.9(d). For Annual Form M, both the report and the request are due by March 31.
5. Amend § 369.9 by removing paragraph (d)(4) and revising paragraphs (a) and (e)(4) to read as follows.End Amendment Part
(a) General. This section governs requests for exemptions from filing of the report required under § 369.1 of this part.
(e) * * *
(4) FMCSA will grant or deny each request no later than 90 days after the request's due date as defined in paragraph (d) of this section. The decision by FMCSA shall be administratively final. For Annual Form M, both the report and the request are due by March 31, and the decision is due by June 30.
6. Remove § 369.11.End Amendment Part Start Signature
Issued under the authority delegated in 49 CFR 1.87 on: May 13, 2013.
Anne S. Ferro,
1. Mid-Tex Electric Cooperative, Inc. v. Federal Energy Regulatory Commission (FERC), 773 F.2d 327, 342 (D.C. Cir. 1985).Back to Citation
2. Id. See also “A Guide for Government Agencies: How to Comply with the Regulatory Flexibility Act,” Small Business Administration (2010), retrieved February 13, 2013, from http://archive.sba.gov/advo/laws/rfaguide.pdf.Back to Citation
3. Bureau of Labor Statistics, “Occupational Employment Survey,” May 2010, retrieved December 15, 2011, from http://www.bls.gov/oes/current/naics3_484000.htm. North American Industry Classification System (NAICS) 484000, Truck Transportation, Standard Occupational Classification (SOC) 13-2011, Accountants and Auditors.Back to Citation
4. FMCSA estimates this 50 percent employee benefit rate by using the private industry average wage ($16.03 per hour) and benefit information ($8.01 per hour) for production, transportation, and moving material workers. Benefits thus amount to 50.0 percent of wages (0.500 = $8.01/$16.03). From “Employer Costs for Employee Compensation—September 2010,” retrieved August 23, 2011, from http://www.bls.gov/news.release/pdf/ecec.pdf.Back to Citation
5. Berwick, Farooq. “Truck Costing Model for Transportation Managers.” Upper Great Plains Transportation Institute, North Dakota State University (2003), retrieved January 9, 2013, from http://ntl.bts.gov/lib/24000/24200/24223/24223.pdf.Back to Citation
6. Bureau of Labor Statistics, “Occupational Employment Survey,” May 2010, retrieved December 15, 2011, from http://www.bls.gov/oes/current/naics4_485200.htm. North American Industry Classification System (NAICS) 485200, Interurban and Rural Bus Transportation, Standard Occupational Classification (SOC) 13-2000, Business and Financial Operations Occupations.Back to Citation
7. FMCSA estimates this 50 percent employee benefit rate by using the private industry average wage ($16.03 per hour) and benefit information ($8.01 per hour) for production, transportation, and moving material workers. See footnote 5, above.Back to Citation
8. Berwick “Truck Costing Model for Transportation Managers.”Back to Citation
[FR Doc. 2013-12339 Filed 5-23-13; 8:45 am]
BILLING CODE 4910-EX-P