`[Federal Register Volume 74, Number 170 (Thursday, September 3, 2009)]
[Proposed Rules]
[Pages 45583-45597]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-21232]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 367

[Docket No. FMCSA-2009-0231]
RIN 2126-AB19


Fees for the Unified Carrier Registration Plan and Agreement

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION: Notice of Proposed Rulemaking.

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SUMMARY: This proposed rule would establish annual registration fees 
and a fee bracket structure for the Unified Carrier Registration (UCR) 
Agreement for the calendar year beginning on January 1, 2010, as 
required under the Unified Carrier Registration Act of 2005, enacted as 
Subtitle C of Title IV of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users, as amended.

DATES: You must submit comments on or before September 18, 2009.

ADDRESSES: You may submit comments, identified by docket number FMCSA-
2009-0231 and/or RIN 2126-AB19, by any of the following methods--
Internet, facsimile, regular mail, or hand-deliver.
    Federal eRulemaking Portal: Federal Docket Management System (FDMS) 
Web site at http://www.regulations.gov. The FDMS is the preferred 
method for submitting comments, and we urge you to use it. In the 
``Comment'' or ``Submission'' section, type Docket ID Number ``FMCSA--
2009--0231'', select ``Go'', and then click on ``Send a Comment or 
Submission.'' You will receive a tracking number when you submit a 
comment.
    Fax: 1-202-493-2251.
    Mail, Courier, or Hand-Deliver: U.S. Department of Transportation, 
Docket Operations (M-30), West Building Ground Floor, Room W12-140, 
1200 New Jersey Avenue, SE., Washington, DC 20590. Office hours are 
between 9 a.m. and 5 p.m., ET, Monday through Friday, except Federal 
holidays.
    Docket: Comments and material received from the public, as well as 
background information and documents mentioned in this preamble, are 
part of docket FMCSA-2009-0231, and are available for inspection and 
copying on the Internet at http://www.regulations.gov. You may also

[[Page 45584]]

view and copy documents at the U.S. Department of Transportation's 
Docket Operations Unit, West Building Ground Floor, Room W12-140, 1200 
New Jersey Avenue, SE., Washington, DC.
    Privacy Act: All comments will be posted without change including 
any personal information provided to the FDMS at http://www.regulations.gov. Anyone can search the electronic form of all our 
dockets in FDMS, by the name of the individual submitting the comment 
(or signing the comment, if submitted on behalf of an association, 
business, labor union, etc). The Department of Transportation's (DOT) 
complete Privacy Act Statement was published in the Federal Register on 
April 11, 2000 (65 FR 19476), and can be viewed at http://docketsinfo.dot.gov. Comments received after the comment closing date 
will be included in the docket, and we will consider late comments to 
the extent practicable. FMCSA may, however, issue a final rule at any 
time after the close of the comment period.

FOR FURTHER INFORMATION CONTACT: Ms. Julie Otto, Office of Enforcement 
and Program Delivery, (202) 366-0701, FMCSA, Department of 
Transportation, 1200 New Jersey Ave. SE., Washington, DC 20590 or by e-
mail at: [email protected].

SUPPLEMENTARY INFORMATION: The preamble is organized as follows:

Table of Contents

I. Legal Basis for the Rulemaking
II. Statutory Requirements for the UCR Fees
III. Background of UCR Fees 2007 to Present
IV. UCR Fee Proposals for Calendar Year 2010
    A. The UCR Plan Recommendation
    1. Certification of State Revenues
    2. Administrative Costs
    3. Revenue Target
    4. Carrier Population
    5. Number of Fee Brackets
    6. Fee Levels for Each Bracket
    B. The FMCSA Analysis
    1. Bracket Shifting
    2. Compliance and Enforcement
    3. The Board's Response to FMCSA Concerns: Alternative Proposals
V. The FMCSA Fee Proposal
    A. Adjustment for Change in CMV Definition
    B. Registration Percentage Reasonableness (RPR) Factor
    C. Shortfall Adjustment Factor
    D. FMCSA Adjustments
VI. Regulatory Changes
VII. Regulatory Analyses and Notices

I. Legal Basis for the Rulemaking

    This proposed rule involves an adjustment in the annual 
registration fees for the Unified Carrier Registration Agreement (UCR 
Agreement) established by 49 U.S.C. 14504a, enacted by section 4305(b) 
of the Safe, Accountable, Flexible, Efficient Transportation Equity 
Act: A Legacy for Users (SAFETEA-LU) (119 Stat. 1144, 1764 (2005)). 
Section 14504a states that the ``Unified Carrier Registration Plan * * 
* mean[s] the organization * * * responsible for developing, 
implementing, and administering the unified carrier registration 
agreement'' (49 U.S.C. 14504a(a)(9)) (UCR Plan). The UCR Agreement 
developed by the UCR Plan is the ``interstate agreement governing the 
collection and distribution of registration and financial 
responsibility information provided and fees paid by motor carriers, 
motor private carriers, brokers, freight forwarders and leasing 
companies * * *.'' (49 U.S.C. 14504a(a)(8)).
    Congress in SAFETEA-LU also repealed 49 U.S.C. 14504 governing the 
Single State Registration System (SSRS) (SAFETEA-LU section 
4305(a)).\1\ The legislative history indicates that the purpose of the 
UCR Plan and Agreement is both to ``replace the existing outdated 
system [SSRS]'' for registration of interstate motor carrier entities 
with the States and to ``ensure that States don't lose current revenues 
derived from SSRS'' (S. Rep. 109-120, at 2 (2005)).\2\
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    \1\ This repeal became effective on January 1, 2008, in 
accordance with section 4305(a) of SAFETEA-LU and section 1537(c) of 
the Implementing Recommendations of the 9/11 Commission Act of 2007, 
Pub. L. 110-53, 121 Stat. 266, 467 (Aug. 3, 2007).
    \2\ The Senate bill's provisions were enacted ``with 
modifications.'' H. Conf. Rep. No. 109-203, at 1020 (2005).
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    The statute provides for a 15-member Board of Directors for the UCR 
Plan and Agreement (Board) to be appointed by the Secretary of 
Transportation. The statute specifies that the Board should consist of 
one individual (either the Federal Motor Carrier Safety Administration 
(FMCSA) Deputy Administrator or another Presidential appointee) from 
the Department of Transportation; four directors (one from each of the 
four FMCSA service areas), selected from among the chief administrative 
officers of the State agencies responsible for administering the UCR 
Agreement; five directors from among the professional staffs of State 
agencies responsible for administering the UCR Agreement, to be 
nominated by the National Conference of State Transportation 
Specialists (NCSTS); and five directors representing the motor carrier 
industry, of whom at least one must be from a national trade 
association representing the general motor carrier of property industry 
and one from a motor carrier that falls within the smallest fleet fee 
bracket. The establishment of the Board was announced in the Federal 
Register on May 12, 2006 (71 FR 27777). On July 19, 2007 (72 FR 39660), 
FMCSA published a notice announcing the reappointment to the Board of 
the five Board members from the State agencies nominated by NCSTS. On 
June 30 2008, (73 FR 36956) FMCSA published a notice announcing the 
reappointment of the members from the four FMCSA service areas to the 
Board.
    Among its responsibilities, the Board is required to submit to the 
Secretary of Transportation \3\ a recommendation for the initial annual 
fees to be assessed motor carriers, motor private carriers, freight 
forwarders, brokers and leasing companies (49 U.S.C. 14504a(d)(7)(A)). 
FMCSA is directed to set the fees within 90 days after receiving the 
Board's recommendation and after notice and opportunity for public 
comment (49 U.S.C. 14504a(d)(7)(B)). Subsequent adjustment to the fees 
and fee brackets must be adopted following the same timelines and 
procedures of recommendation by the Board and review and adoption by 
FMCSA after notice and an opportunity for public comment (Id). As 
provided in 49 U.S.C. 14504a(f)(1)(B): ``The fees shall be determined 
by [FMCSA] based upon the recommendations of the [UCR] Board * * *.'' 
The statute also directs both the Board and FMCSA to consider several 
relevant factors in their respective roles of recommending and setting 
the fees [49 U.S.C. 14504a(d)(7)(A), (f)(1) and (g)]. Thus, FMCSA has 
an obligation to consider independently the Board's recommendation in 
light of the statutory requirements, and to make its own determination 
of the appropriate fees and fee bracket structure, including modifying 
the Board's recommendation, if necessary.
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    \3\ The Secretary's functions under section 14504a have been 
delegated to the Administrator of the Federal Motor Carrier Safety 
Administration. 49 CFR 1.73(a)(7), as amended (71 FR 30833 May 31, 
2006).
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II. Statutory Requirements for the UCR Fees

    The statute specifies that fees are to be determined by FMCSA based 
upon the recommendation of the Board. In recommending the level of fees 
to be assessed in any agreement year, and in setting the fee level, 
both the Board and FMCSA shall consider the following factors:
    1. Administrative costs associated with the UCR Plan and Agreement.
    2. Whether the revenues generated in the previous year and any 
surplus or shortage from that or prior years enable

[[Page 45585]]

the participating States to achieve the revenue levels set by the 
Board.
    3. Provisions governing fees in 49 U.S.C. 14504a(f)(1).
    Subsection (f)(1) provides that the fees charged must satisfy the 
following criteria:
    Fees charged to a motor carrier, motor private carrier, or freight 
forwarder under the UCR Agreement shall be based on the number of 
commercial motor vehicles owned or operated by the motor carrier, motor 
private carrier, or freight forwarder. The statute initially defined 
``commercial motor vehicles'' (CMVs) for this purpose as including both 
self-propelled and towed vehicles [former 49 U.S.C. 14504a(a)(1)(A) and 
31101(1)]. The fees set in 2007, and applied as well in 2008 and 2009, 
were determined on that basis. However, section 701(d)(1)(A) of Public 
Law 110-432, Div. A, 122 Stat. 4906 (Oct. 16, 2008) amended the 
definition of CMV for the purpose of setting UCR fees for years 
beginning after December 31, 2009, to mean a ``self-propelled vehicle 
described in section 31101'' (49 U.S.C. 14504a(a)(1)(A)(ii)).
    Fees charged to a broker or leasing company under the UCR Agreement 
shall be equal to the smallest fee charged to a motor carrier, motor 
private carrier, and freight forwarder, or to the smallest fee charged 
under the UCR Agreement.
    Section 14504a(f)(1) also stipulates that for the purpose of 
charging fees the Board shall develop no more than 6 and no fewer than 
4 brackets of carriers (including motor private carriers) based on the 
size of the fleet, i.e., the number of CMVs owned or operated. The fee 
scale is required to be progressive in the amount of the fee. The 
registration fees for the UCR Agreement may be adjusted within a 
reasonable range on an annual basis if the revenues derived from the 
fees are either insufficient to provide the participating States with 
the revenues they are entitled to receive or exceed those revenues (49 
U.S.C. 14504a(f)(1)(E)).
    Overall, the fees assessed under the UCR Agreement must produce the 
level of revenue established by statute. Section 14504a(g) establishes 
the revenue entitlements for States that choose to participate in the 
UCR Plan. That section provides that a participating State, which 
participated in SSRS in the registration year prior to the enactment of 
the Unified Carrier Registration Act of 2005 (i.e., the 2004 
registration year), is entitled to receive revenues under the UCR 
Agreement equivalent to the revenues it received in 2004. Participating 
States that also collected intrastate registration fees from interstate 
motor carrier entities (whether or not they participated in SSRS) are 
also entitled to receive revenues of this type under the UCR Agreement, 
in an amount equivalent to the amount received in the 2004 registration 
year. The section also requires that States which did not participate 
in SSRS in 2004, but which choose to participate in the UCR Plan, may 
receive revenues not to exceed $500,000 per year.

III. Background of UCR Fees 2007 to Present

    The initial UCR fees and fee structure was published by FMCSA on 
August 24, 2007 (72 FR 48585), which allowed the Board to begin 
collecting fees (49 U.S.C. 14504a). On February 1, 2008, the Board 
submitted the 2008 recommendation to FMCSA indicating that it was ``too 
early to ascertain whether the revenues collected in 2007 will equal or 
approximate the total revenue'' to which the States are entitled. A 
copy of this recommendation is provided in this docket. As a result, on 
February 26, 2008 (73 FR 10157), FMCSA published correcting amendments 
to the 2007 final rule, clarifying that the fees and fee structure were 
established for every registration year unless (and until) the Board 
recommended an adjustment to the annual fees (73 FR 10157). On July 11, 
2008, the Board sent a letter to FMCSA stating that the fees would 
remain the same as 2007. The Board stated that ``additional time to 
register entities, check that carriers registered in the correct 
bracket, and establish effective roadside enforcement'' would result in 
better collection of revenue. A copy of this letter is provided in this 
docket. The table below shows the fees and fee structure in place from 
2007 to 2009.

                                  Table 1--UCR Fees and Fee Structure 2007-2009
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                                                                                  Fee per entity
                                                                                   for exempt or
                                                   Number of commercial motor       non-exempt    Fee per entity
                                                  vehicles owned or operated by   motor carrier,   for broker or
                    Bracket                        exempt or non-exempt motor      motor private      leasing
                                                carrier, motor private  carrier,    carrier, or       company
                                                      or freight  forwarder           freight
                                                                                     forwarder
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B1............................................  0-2.............................             $39             $39
B2............................................  3-5.............................             116  ..............
B3............................................  6-20............................             231  ..............
B4............................................  21-100..........................             806  ..............
B5............................................  101-1,000.......................           3,840  ..............
B6............................................  1,001 and above.................          37,500  ..............
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    From collection years 2007 to the present, some participating 
States have achieved their revenue entitlement while others have 
exceeded it. In the latter case, the excess amount is forwarded to a 
depository established by the Board for distribution to those States 
that have not collected enough fees to reach their entitlement (49 
U.S.C. 14504a(h)(2) and (3)). However, overall, revenue collections in 
2009, like the previous years, have fallen short. The following table 
shows the amount of revenue shortfall for each registration year, based 
on information provided by the Board. Figures to date show that States 
are approximately 28 percent short of collecting their revenue 
entitlement.

[[Page 45586]]



                                Table 2--UCR Registration Summary 2007 to 2009 *
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                                                   State revenue     Entities         Revenue         Revenue
                Registration year                   entitlement     registered       received        shortfall
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2007............................................    $101,772,400         237,157     $73,937,310     $27,835,090
2008............................................     107,777,060         270,794      76,617,155      31,159,905
2009............................................     107,777,060         282,483      77,148,988      30,628,072
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* Does not include estimated administrative expenses and revenue reserve that are included in the overall
  revenue target.

    Beginning in early 2009, the Board began discussions to address the 
shortfall in the 2010 fee recommendation. On February 12, 2009, the 
Board held a public meeting by telephone conference call to discuss the 
2010 fees and fee structure. At that meeting, a motion was made to 
recommend a proposal that passed with a vote of 10 to 3 with one 
abstention. On April 3, 2009, the Board submitted a recommendation 
based on this proposal to the Secretary.
    Upon review by FMCSA, several fundamental issues were identified in 
the assumptions of the April 3 recommendation. To clarify the issues 
and assist the Board, FMCSA hosted a conference call on April 23, 2009, 
with the Board's chair and the chair of the Revenue and Fees 
Subcommittee. After this discussion, the Subcommittee met and discussed 
several options at the May 14, 2009, Board meeting. No consensus was 
reached. At the June 16, 2009, meeting, the Board discussed informal 
options developed by a member of both the Board and the Revenue and 
Fees Subcommittee. The Board voted to reconsider the April 3 
recommendation upon hearing these new options and the matter was 
referred back to the Subcommittee for further action. At the July 9, 
2009, meeting, a vote was taken on two new options but the Board was 
unable to reach consensus on either proposal with both options 
receiving an equal number of votes. On July 15, 2009, the Board sent a 
letter to the Secretary noting this fact and asked FMCSA to proceed 
with the rulemaking process using the April 3 recommendation.
    The following sections in this notice of proposed rulemaking (NPRM) 
discuss the Board recommendation and other proposals in greater detail 
and outline the areas where FMCSA encouraged the Board to address the 
issues of greatest concern. Section V details the FMCSA-recommended 
2010 UCR fees and fee structure. The NPRM concludes with the regulatory 
analysis and notices.

IV. UCR Fee Proposals for Calendar Year 2010

    In the course of developing its fee recommendation for 2010, the 
Board considered several different proposals, both before and after 
submitting a recommendation on April 3, 2009. Some of these proposals, 
in addition to the proposal formally recommended, were either supported 
by different interests on the Board or were considered for possible 
substitution for the recommended proposal. Each proposal is set out in 
this NPRM for public comment; however, FMCSA does not believe that each 
proposal satisfies the statutory requirements. After setting out and 
assessing each proposal, FMCSA proposes a fee and fee bracket structure 
that is based on one of the proposals with modifications to meet the 
statutory requirements.

A. The UCR Plan Recommendation

    The first proposal is the UCR Plan formal recommendation. The 
Board's fee recommendation was approved by a vote of a majority of the 
members of the Board on February 12, 2009, and was submitted to the 
Secretary on April 3, 2009. It is available at http://www.regulations.gov under the docket number shown above. It recommends 
establishing the fee and fee bracket structure shown in the following 
table:

         Table 3--UCR Board Formal Fee and Bracket Recommendation for 2010 Transmitted on April 3, 2009
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                                                                                  Fee per entity
                                                                                   for exempt or
                                                   Number of commercial motor       non-exempt    Fee per entity
                                                  vehicles owned or operated by   motor carrier,   for broker or
                    Bracket                        exempt or non-exempt motor      motor private      leasing
                                                carrier, motor private  carrier,    carrier, or       company
                                                      or freight forwarder            freight
                                                                                     forwarder
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B1............................................  0-1.............................             $83             $83
B2............................................  2-5.............................             166  ..............
B3............................................  6-20............................             497  ..............
B4............................................  21-100..........................           1,741  ..............
B5............................................  101-1,000.......................           8,373  ..............
B6............................................  1,001 and above.................          82,983  ..............
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    The Board assigned its Revenue and Fees Subcommittee responsibility 
for calculating the overall revenue requirement and recommending fees 
and the fee bracket structure.\4\ The Board then reviewed the analysis 
conducted by the Revenue and Fees Subcommittee and selected the fees 
and fee bracket structure that it recommended to FMCSA.\5\
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    \4\ The membership of the Subcommittee is shown in Appendix BB 
of the April 3 transmittal.
    \5\ The FMCSA designated representative abstained from the 
Board's vote regarding the fee recommendation to prevent any real or 
potential conflict of interest due to his position within FMCSA in 
reviewing the Board's recommendation and setting the fees under the 
statute.
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    During the course of the Subcommittee and Board consideration of 
various proposals, industry representatives on the Board \6\ took the 
position that they would not support any recommendation that adjusted 
the

[[Page 45587]]

fees beyond the amount necessary to reflect the statutory amendment 
changing the definition of commercial motor vehicle for purposes of 
calculating fleet size. Such a proposal, which was presented, but not 
voted on, at the Board's February 12, 2009, public meeting, is set out 
in the following table:
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    \6\ Under 49 U.S.C. 14504a(d)(1)(B)(iii), five of the fifteen 
members of the board are ``from the motor carrier industry.''

               Table 4--Proposed Fee and Fee Structure for 2010 Based on Revised Definition of CMV
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                                                                                  Fee per entity
                                                                                   for exempt or
                                                   Number of commercial motor       non-exempt    Fee per entity
                                                  vehicles owned or operated by   motor carrier,   for broker or
                    Bracket                        exempt or non-exempt motor      motor private      leasing
                                                carrier, motor private  carrier,    carrier, or       company
                                                      or freight forwarder            freight
                                                                                     forwarder
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B1............................................  0-1.............................             $61             $61
B2............................................  2-5.............................             122  ..............
B3............................................  6-20............................             366  ..............
B4............................................  21-100..........................           1,281  ..............
B5............................................  101-1,000.......................           6,163  ..............
B6............................................  1,001 and above.................          61,081  ..............
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    These two proposals in Tables 3 and 4 are similar with one major 
exception. The Board's recommendation (Table 3) was premised on an 
assumption that only 260,466 motor carrier entities would register with 
the UCR Plan in 2010, out of the 433,535 motor carrier entities that 
FMCSA and the Board identified as active. The proposal informally 
supported by industry representatives (Table 4) assumed that all 
433,535 apparently active entities will register in 2010. Because of 
the similarity between these two proposals, they can be discussed 
together for the purpose of assessing their compliance with the 
statutory requirements.
    The discussion below of the development of the population will 
address the difference between the two proposals. The methodology the 
Board and FMCSA used to derive the 433,535 figure is discussed later in 
this section. Table 4 is particularly significant in that it sets the 
new ``baseline'' for the UCR fee and fee structure based on the 
statutory change amending the definition of CMV which removed trailers. 
Before discussing the recommendation and various alternative proposals, 
FMCSA will discuss the elements common to each proposal.
1. Certification of State Revenues
    The first step in certifying State revenue entitlements is to 
establish the participating jurisdictions for 2010. Section 
14504a(e)(1) of the statute established a final deadline of August 10, 
2008, for participation by the 51 States eligible to participate in the 
UCR Plan and Agreement.\7\ Of the 38 States that participated in SSRS 
in 2006, all but two, California and North Carolina, agreed to 
participate in the UCR in registration year 2007. Of the thirteen 
States that did not participate in SSRS, only Oregon agreed to 
participate in the UCR for registration year 2007.
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    \7\ The District of Columbia, which is not participating, is 
considered a State for this purpose (49 U.S.C. 13102(21)).
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    Prior to the August 10, 2008, statutory deadline, both California 
and North Carolina, formerly States participating in SSRS, joined the 
UCR Plan. Oregon withdrew from participation and Pennsylvania,\8\ 
Alaska and Delaware, which had not participated in SSRS, agreed to 
participate in the UCR for registration year 2008 and subsequent years. 
Therefore, there are now 41 States participating and 10 States 
(including the District of Columbia) not participating.
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    \8\ Pennsylvania did not participate in SSRS; however, the 
statute permits it to collect revenues generated under the UCR 
Agreement in an amount equivalent to the amount it collected in 
intrastate registration fees from interstate motor carriers in 2004. 
49 U.S.C. 14504a(g)(2).
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    To develop a nationwide figure for the replacement revenues needed 
under the UCR Agreement, the Board asked those States that either had 
participated in SSRS or had intrastate registration revenues 
statutorily authorized to be included in the total revenue amount to 
provide information on the revenues they received for the registration 
year 2004. This was the year specified in the statute for establishing 
the amount of revenues they were entitled to receive under the UCR 
Agreement. The total certified State revenue figure for UCR for 2010 is 
$106,777,060. (See Table 5 which is based on Exhibit D to the Board's 
recommendation.)
    SAFETEA-LU caps the maximum revenue figure for other UCR States 
that did not participate in SSRS at $500,000 per year (49 U.S.C. 
14504a(g)(3)). Because two such non-SSRS States have agreed to 
participate in the UCR for registration year 2010 (Alaska and 
Delaware), the Board added $1,000,000 to the total entitlement figure, 
bringing the total State revenue requirement for 2010 to $107,777,060.
    The Board's calculation of the total revenue for 2010 was properly 
based upon the revenues collected by the participating States (both 
under SSRS and for intrastate registration of interstate carriers) for 
the calendar year 2004. These State revenue entitlements are unchanged 
from the entitlements for 2008 and 2009, which were previously approved 
by FMCSA orders. In accordance with 49 U.S.C. 14504a(g)(4), FMCSA 
proposes to approve the amount of revenue under the UCR Agreement to 
which each State participating in 2010 is entitled, as specified in 
Table 5.

                 Table 5--State UCR Revenue Entitlements
------------------------------------------------------------------------
                                                         Total 2010 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

[[Page 45588]]

 
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
                                                      ------------------
    Sub-Total........................................     106,777,059.81
Alaska...............................................            500,000
Delaware.............................................            500,000
                                                      ------------------
    Total State Revenue Entitlement..................        107,777,060
------------------------------------------------------------------------

2. Administrative Costs
    Under section 14504a(d)(7) of the statute, the costs incurred by 
the Board to administer the UCR Agreement are eligible for inclusion in 
the total revenue to be collected. The Board continues to estimate 
$5,000,000 for 2010 administrative expenses, and included that amount 
in the revenue target.
3. Revenue Target
    In addition to the 2010 State revenue target ($107,777,060) and the 
administrative expenses ($5,000,000), the Board also included a reserve 
in its revenue target recommendation to FMCSA an additional amount of 
$563,885, equal to one-half of one percent of the State revenue total 
and administrative expenses. This calculation methodology is consistent 
with the 2007 final rule. This brings the overall UCR entitlement to 
$113,340,945.
4. Carrier Population
    The Board's recommendation is based on a method for determining the 
carrier population that is different from the one used in 2007. In 
2007, the Board assumed that revenues would be generated ``from all 
motor carrier entities involved in interstate commerce.'' Each of the 
five categories of motor carrier entities is defined by statute (in 
some cases with modifications or additions found in section 14504a) as 
shown in Table 6 below.

              Table 6--Categories of Motor Carrier Entities
------------------------------------------------------------------------
           Category                     Definition in 49 U.S.C.
------------------------------------------------------------------------
Motor Carrier................  13102(14) and 14504a(a)(5).
Motor Private Carrier........  13102(15).
Freight Forwarder............  13102(8) [Freight forwarders that operate
                                motor vehicles are treated as motor
                                carriers. 13903(b) and 14504a(b)].
Broker.......................  13102(2).
Leasing Company..............  14504a(a)(4).
------------------------------------------------------------------------

    To estimate the number of 2007 UCR entities, the Board (using the 
SafetyNet system) filtered data from the FMCSA Motor Carrier Management 
Information System (MCMIS) to capture carriers that had updated their 
MCS-150 census file \9\, had an inspection, crash, safety audit, or 
compliance review recorded within the past 12 months (March 1, 2006, 
through February 26, 2007). Applying this criteria (or filter) to 
identify recent activity to approximately 730,000 carriers listed in 
the database, the Board filtered out almost 380,000 carriers, leaving 
an estimated total number of active interstate carriers of 350,698. The 
Board then considered freight forwarders and brokers listed in the 
FMCSA Licensing and Insurance (L&I) System. The number, as provided by 
FMCSA, was approximately 19,000. After freight forwarders that also 
operate CMVs were excluded to avoid double counting, the Board 
estimated the total number of freight forwarders and brokers as 14,575. 
Summing the 350,698 active interstate carriers and 14,575 freight 
forwarders and brokers, the Board arrived at a total affected 
population of 365,273.
---------------------------------------------------------------------------

    \9\ Pursuant to 49 CFR 390.19 Motor carrier identification 
report, a motor carrier must file its update of the MC-150 form 
every 24 months.
---------------------------------------------------------------------------

    To establish its carrier population estimate for 2010, the Board 
began with the MCMIS database for February 4, 2009, and applied the 
same filters used in 2007 with the minor change of extending the 
activity period to 15 months. The Board also included in the set of 
filters whether the carrier had registered under UCR. In addition, the 
Board took L&I data on September 10, 2008, and, as before, filtered it 
to avoid double counting. For 2010, this process yielded an estimate of 
433,535 for the full universe of carriers, brokers and freight 
forwarders.
    The Board then adjusted the estimated full universe by the 
percentage of entities that had actually registered in each of the six 
brackets specified in the fee structure, compared to the number of 
entities that the Board had determined were potential registrants in 
each bracket. This approach yielded a total estimated population of 
260,466 carriers, brokers and freight forwarders, as illustrated by the 
following table. This table contains the information in Figures 13 and 
14 \10\ from the Board's recommendation and provides the percentages 
used by the Board to adjust its population estimates.
---------------------------------------------------------------------------

    \10\ See figures 13 and 14 as shown on page 8 of the April 3, 
transmittal.

[[Page 45589]]



                             Table 7--Summary of Board Population Estimate for 2010
----------------------------------------------------------------------------------------------------------------
                                                                               2008
           Bracket                                2008 Full       2008     Percent (%)   2010 Full       2010
                                                   universe    Registered   registered    universe    Population
                                                         (A)          (B)    (C) = B/A          (D)  (E) = D x C
----------------------------------------------------------------------------------------------------------------
1............................  Brokers &              16,457        2,630         16.0       16,457        2,630
                                Freight
                                Forwarders.
1............................  0-1.............      202,415      116,163         57.4      194,425      111,578
2............................  2-5.............       89,773       56,489         62.9      145,266       91,408
3............................  6-20............       85,015       57,946         68.2       65,155       38,275
4............................  21-100..........       30,716       23,566         76.7       17,350       13,311
5............................  101-1,000.......        8,118        6,800         83.8        3,590        3,007
6............................  1,001-More......          785          690         87.9          292          257
                                                ----------------------------------------------------------------
    Totals...................  ................      433,279      264,284  ...........      433,535      260,466
----------------------------------------------------------------------------------------------------------------

    The Board's position in adopting this approach was that it was 
unreasonable to expect the States to register and collect fees from all 
potential registrants. Based on the historical registration experience, 
the Board also believed that this approach increased the likelihood of 
collecting the target revenues, although the approach was potentially 
vulnerable to under-collection if carriers registered in brackets 
different from those to which they would be expected to belong to, 
based on MCMIS. Industry representatives voiced concern over this 
approach, contending it benefited potential registrants who had been 
and continued to be noncompliant, while it increased the burden on 
compliant registrants.
5. Number of Fee Brackets
    The Board recommended the same number of brackets for 2010 that it 
had recommended in 2007. The Board decided to use the maximum number of 
brackets allowed by statute, thereby reducing the range of fleet sizes 
within individual brackets. The Board revised the first bracket for 
2010 from 0-2 to 0-1, to reflect the elimination of towed units 
(trailers) and similarly, the second bracket was changed from 3-5 to 2-
5. The Board retained brackets 3 through 6 as they had been established 
in 2007.
6. Fee Levels for Each Bracket
    As discussed above under Section IV.A.3. Revenue Target, the 
Board's target revenue figure with administrative costs and reserve for 
2010 is $113,340,945. To determine how to allocate the total 
entitlement figure of $113,340,945 across the six brackets, the Board 
used a model that calculated (1) the number of entities in each 
bracket; (2) the revenues generated by each bracket at different fee 
amounts; (3) total revenues; and (4) any surplus or deficit from the 
$113,340,945 target figure. The Board also considered fairness in terms 
of fees per motor vehicle while assigning the fees for each bracket. 
This model is consistent with the one used in 2007, it ensures that the 
maximum fee per commercial motor vehicle in any given bracket would be 
no higher than the maximum fee per commercial motor vehicle in the next 
smaller bracket. The fees recommended by the Board range from a low of 
$83 for carriers in the lowest bracket (0 to 1 CMVs) to a high of 
$82,983 (the 1001-or-greater CMVs bracket). (See Table 3.) The Board 
estimated that this fee structure would generate $113,338,310 in 
revenues. This amount is slightly below the target figure, with a 
projected deficit of $2,635 for the UCR registration year 2010.\11\
---------------------------------------------------------------------------

    \11\ A deficit arises when rounding is not applied to the fees, 
otherwise the total revenue equals $113,354,360, which leads to a 
surplus of $13,415.
---------------------------------------------------------------------------

B. The FMCSA Analysis

    FMCSA's primary issues with the April 3 Board recommendation 
involve: (1) The need to recognize the revenue shortfalls caused by 
``bracket shifting,'' i.e., motor carriers registering in a fee bracket 
that is different from that reflected in MCMIS and (2) the number of 
motor carrier entities that could be expected to comply with the 
statute and register and the related issue of the States' level of 
enforcement.
1. Bracket Shifting
    The UCR registration fees and fee brackets have been based on the 
assumption that motor carrier entities subject to UCR registration 
requirements will pay fees based on the number of vehicles (fleet size) 
reported in the motor carrier identification report (Form MCS-150). 
Under 49 CFR 390.19, this report is required to be filed with FMCSA and 
updated at least biennially. However, experience over three years has 
shown that a significant proportion of motor carriers are paying fees 
based on fleet sizes that are different than what would be expected 
from the fleet sizes reported to FMCSA. Empirical analyses prepared by 
or on behalf of a member of the Board have shown that the overall net 
effect of this bracket shifting by registering motor carriers has been 
a significant reduction in expected revenue (25.04 percent in 2008). 
Bracket shifting, which can be appropriate under the statute, occurs 
because available data sources used to develop the UCR fees and fee 
structures do not always accurately predict actual registrations.
    On Form MCS-150, motor carriers are required to report separately 
the number of self-propelled vehicles (i.e., power units) of various 
types and the number of towed vehicles (i.e., trailers), if any, that 
are owned or leased by the carrier, and then total ``the number of each 
type of CMV that [it] uses in its U.S. operations.'' See instructions 
for item 26, Form MCS-150 at http://www.fmcsa.dot.gov/documents/forms/r-l/MCS-150-Instructions-and-Form.pdf. That information is compiled in 
MCMIS. The data, including the number of self-propelled and towed CMVs 
operated by motor carriers, was and is made available to the Board to 
enable it to develop its fees and fee bracket structure. The fees for 
the registration years 2007, 2008 and 2009 were developed by the Board 
on the assumption that each motor carrier that registered would pay a 
fee according to the bracket that is indicated by the number of 
vehicles owned and operated (both self-propelled and towed) reported in 
the MCMIS database. For 2010, because of the change in the applicable 
definition for CMV, the fleet sizes and applicable fees will be 
determined only by the number of self-propelled CMVs.
    There are several ways that a motor carrier entity can determine 
its fleet size. Fees charged to a registering motor carrier or freight 
forwarder ``shall be based on the number of commercial motor vehicles 
owned or operated * * *'' (49 U.S.C. 14504a(f)(1)(A)(i)). A

[[Page 45590]]

CMV is ``owned or operated'' by the motor carrier or freight forwarder 
if, during the registration year, it is either registered under Federal 
or State law (or both) or controlled under a ``long term lease'' (49 
U.S.C. 14504a(f)(2)). The UCR Plan has determined that a lease of a CMV 
must be for more than 30 days to be considered a long term lease. See 
http://www.ucr.in.gov/MCS/2009%20UCR%20Instruction%20Sheet.doc. 
However, FMCSA requires that all leased vehicles, long term or 
otherwise, be reported on the MCS-150.
    A registering motor carrier or freight forwarder then has the 
option of basing the number of CMVs owned or operated on either (1) the 
number reported on its most recently filed MCS-150; or (2) the total 
number owned or operated for the 12-month period ending on June 30 of 
the year preceding the registration year (49 U.S.C. 14504a(f)(3)). This 
number is determined, for either option, after excluding leased 
vehicles that are under lease terms of 30 days or less. http://www.ucr.in.gov/MCS/2009%20UCR%20Instruction%20Sheet.doc. A motor 
carrier may include in its calculation of fleet size ``any commercial 
motor vehicle'' (49 U.S.C. 14504a(f)(3)) and ``any self-propelled 
vehicle used on the highway in commerce to transport passengers or 
property for compensation regardless of the gross vehicle weight rating 
of the vehicle or the number of passengers transported by such 
vehicle'' (49 U.S.C. 14504a(a)(1)(B)). On the other hand, motor 
carriers and motor private carriers may elect not to include any CMV 
used ``exclusively in the intrastate transportation of property, waste, 
or recyclable material'' (49 U.S.C. 14504a(f)(3)).
    Tables 8 and 9 below show the effect of bracket shifting in 2008. 
Table 8 shows the fee brackets that motor carriers selected when 
registering under the UCR Plan for 2008 and compares that to the 
brackets in which the carriers would have registered if the fleet size 
used was derived from MCMIS. Table 9 shows the revenue impacts of the 
brackets shifting in Table 8. A board member presented these tables to 
the Board during public meetings in June and July, 2009, and the tables 
have been placed in the docket.

                                                             Table 8--2008 UCR Registration
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                           Paid bracket
              MCMIS Bracket              ---------------------------------------------------------------------------------------------------------------
                                                 1               2               3               4               5               6            Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.......................................         107,277           7,109           1,617              94               6               0         116,103
2.......................................          18,732          33,518           4,002             108               5               0          56,365
3.......................................           6,132          10,390          40,086           1,191              18               2          57,819
4.......................................           1,092           1,026           5,968          15,264             174               0          23,524
5.......................................             253             112             429           1,714           4,265              21           6,794
6.......................................              45               4              19              50             182             388             688
                                         ---------------------------------------------------------------------------------------------------------------
    Totals..............................         133,531          52,159          52,121          18,421           4,650             411         261,293
 
                                         ---------------------------------------------------------------------------------------------------------------
    Fees paid...........................      $5,207,709      $6,050,444     $12,039,951     $14,847,326     $17,856,000     $15,412,500     $71,413,930
 
--------------------------------------------------------------------------------------------------------------------------------------------------------


                                                              Table 9--Revenue Impact 2008
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                        Paid bracket
           MCMIS Bracket           ---------------------------------------------------------------------------------------------------------------------
                                           1               2                3                4                5                6              Totals
--------------------------------------------------------------------------------------------------------------------------------------------------------
1.................................  ..............       $(547,393)       $(310,464)        $(72,098)        $(22,806)  ...............       $(952,761)
2.................................      $1,442,364  ...............        (460,230)         (74,520)         (18,620)  ...............         888,994
3.................................       1,177,344       1,194,850   ...............        (684,825)         (64,962)        $(74,538)       1,547,869
4.................................         837,564         707,940        3,431,600   ...............        (527,916)  ...............       4,449,188
5.................................         961,653         417,088        1,548,261        5,200,276   ...............        (706,860)       7,420,418
6.................................       1,685,745         149,536          708,111        1,834,700        6,126,120   ...............      10,504,212
                                   ---------------------------------------------------------------------------------------------------------------------
    Revenue change................       6,104,670       1,922,021        4,917,278        6,203,533        5,491,816         (781,398)      23,857,920
--------------------------------------------------------------------------------------------------------------------------------------------------------
Note: Numbers in parentheses indicate a positive revenue impact whereas numbers not in parentheses indicate a negative revenue impact.

    For example, of the 261,293 total number of carriers registered for 
2008 (as of the date of the analysis in the above tables), 116,103 
appeared to have fleet sizes from the MCMIS data that indicated that 
they should have registered in the lowest UCR fee bracket. However, 
almost 9,000 of those carriers registered in a higher bracket, for a 
net revenue gain of almost $1 million. On the other hand, 26,254 
carriers registered in the lowest bracket (MCMIS Bracket 2-6, under 
Paid Bracket 1) although the MCMIS data indicated that they should be 
registered in a bracket with a higher fee. The net result was a revenue 
yield that was over $6.1 million less than expected. Similar patterns 
appear in the other brackets--some carriers are registering in higher 
brackets than expected--but significant numbers of carriers registered 
in lower brackets. For registration year 2008, as Table 9 shows, the 
net reduction in the expected revenue caused by bracket shifting was 
$23,857,920. This represented about a 25.04 percent shortfall in the 
expected revenues for 2008.
    This amount was a substantial portion of the total revenue 
shortfall of $31,159,905 experienced by the UCR Plan for registration 
year 2008. Shortfalls in 2007 and 2009 were apparently due to a similar 
phenomenon. In order to fulfill the statutory objective of ensuring 
that the revenues derived from the fees are sufficient to provide the 
revenues to

[[Page 45591]]

which the participating States are entitled (see 49 U.S.C. 
14504a(f)(1)(E)(i)), it appears to FMCSA that an adjustment needs to be 
applied to the current fees to recognize the occurrence of bracket 
shifting.
2. Compliance and Enforcement
    Another factor affecting the revenues derived from the UCR 
registration fees is the difficulty that participating States have in 
registering all of the motor carrier entities that appear in the FMCSA 
MCMIS database. Filtering that data in order to identify activity, the 
Board and FMCSA based the initial fees established in 2007 on the 
expectation that 365,273 motor carrier entities were active and would 
register (Fees for Unified Carrier Registration Plan and Agreement 
NPRM, 72 FR 29472, 29475, May 29, 2007). In the April 3 submission, the 
Board developed an estimated total of 433,535 entities that would be 
active in 2010 by updating its activity indicia. However, the formal 
recommendation posited that only 260,466 of those entities would 
register for 2010, a relatively low level of compliance. The proposal 
supported by the motor carrier industry representatives, on the other 
hand, posited that all 433,535 of these entities would register for 
2010, even though during the past three years the UCR Plan has never 
achieved 100 percent compliance. See Table 2.
    The reason for and solutions to this level of compliance is a 
matter of significant disagreement between the States and industry 
representatives on the Board. States have taken the position that low 
compliance is due to limitations in the MCMIS data that prevent 
identification of the appropriate active population, combined with 
industry reluctance to register. Industry representatives have taken 
the position that insufficient State enforcement activities are to 
blame.
    FMCSA believes that, though no realistic level of enforcement would 
lead to 100 percent compliance, increased enforcement efforts on the 
part of the participating States will be able to increase compliance 
rates to a significant degree. FMCSA requests public comment on the 
reasons for the low level of compliance. FMCSA also requests public 
comment on potential solutions to determining the reasonableness of the 
compliance and enforcement efforts by the States, including how they 
would support a reasonable adjustment in the current fees.
3. The Board's Response to FMCSA Concerns: Alternative Proposals
    In response to FMCSA concerns regarding the April 3 fee 
recommendation, the Board's Revenue and Fee Subcommittee considered two 
alternative fee proposals taking into account FMCSA's principal areas 
of concern: Appropriate population definition, compliance rates, and 
bracket shifting. These proposals relied upon a carrier population of 
433,535, and used the current bracket structure. Both proposals 
included a compliance factor, which indicated that it would be 
reasonable to expect 90 percent of motor carrier entities in the 
participating States to register, and 80 percent of the entities in 
non-participating States to register. This factor has been named the 
Registration Percentage Reasonableness, or RPR Factor.
    The ten non-participating jurisdictions receive no revenues from 
the UCR Plan, and thus have little motivation to devote resources to 
enforcement of the UCR registration. Entities from those States engaged 
in interstate transportation activities can only be subject to possible 
enforcement if they conduct operations in a participating State. Data 
reviewed by FMCSA indicates that only about 40 percent of motor carrier 
entities in non-participating States are registering with the UCR Plan.
    The first alternative proposal (Table 10) assumed that the 
historical trend of revenue shortfall caused by bracket shifting would 
continue in 2010 at the 2008 rate. The second proposal (Table 11) 
assumed that the bracket shifting rate for 2010 would be about half of 
the 2008 rate. This assumption was based on the fact that, under the 
new definition of CMV, 2010 fleet sizes are estimated to approximate 
one-half of the prior years' fleet sizes. The development of these 
proposals was set out in the presentation made to the Board on July 9, 
2009, which has been placed in the docket for this rulemaking.
    Applying these adjustments produced fees shown in the following two 
tables:

                               Table 10--Alternative Fee Proposal for 2010 (No. 1)
----------------------------------------------------------------------------------------------------------------
                                                                                  Fee per entity
                                                                                   for exempt or
                                                   Number of commercial motor       non-exempt    Fee per entity
                                                  vehicles owned or operated by   motor carrier,   for broker or
                    Bracket                        exempt or non-exempt motor      motor private      leasing
                                                carrier, motor private  carrier,    carrier, or       company
                                                      or freight forwarder            freight
                                                                                     forwarder
----------------------------------------------------------------------------------------------------------------
B1............................................  0-2.............................             $99             $99
B2............................................  3-5.............................             295  ..............
B3............................................  6-20............................             587  ..............
B4............................................  21-100..........................           2,047  ..............
B5............................................  101-1,000.......................           9,754  ..............
B6............................................  1,001 and above.................          95,250  ..............
----------------------------------------------------------------------------------------------------------------



[[Page 45592]]



                               Table 11--Alternative Fee Proposal for 2010 (No. 2)
----------------------------------------------------------------------------------------------------------------
                                                                                  Fee per entity
                                                                                   for exempt or
                                                   Number of commercial motor       non-exempt    Fee per entity
                                                  vehicles owned or operated by   motor carrier,   for broker or
                    Bracket                        exempt or non-exempt motor      motor private      leasing
                                                carrier, motor private  carrier,    carrier, or       company
                                                      or freight forwarder            freight
                                                                                     forwarder
----------------------------------------------------------------------------------------------------------------
B1............................................  0-2.............................             $83             $83
B2............................................  3-5.............................             246  ..............
B3............................................  6-20............................             490  ..............
B4............................................  21-100..........................           1,709  ..............
B5............................................  101-1,000.......................           8,141  ..............
B6............................................  1,001 and above.................          79,500  ..............
----------------------------------------------------------------------------------------------------------------

    The FMCSA fee proposal described below in Section V is derived from 
the fee and fee bracket structure set forth in Table 10.

V. The FMCSA Fee Proposal

    FMCSA and the Board are required to consider the factors 
established by statute and laid out in detail in Section II, Statutory 
Requirements for UCR Fees, above. In addition, FMCSA is required to 
base its fee determination on the Board's recommendation. This 
requirement does not, however, obligate FMCSA to adopt the Board's 
recommendation without modification. To the contrary, FMCSA has an 
independent responsibility to ensure that any fees it sets meet the 
statutory requirements set forth at 49 U.S.C. 14504a.
    In discharging its statutory duty, FMCSA carefully examined the 
Board's entire fee recommendation, including the methodology and 
specific findings of the Board. FMCSA also independently considered the 
factors specified in SAFETEA-LU, and utilized data and analysis 
provided by the Board in its fee recommendation, as well as data from 
other sources. FMCSA does not propose to set the fee contained in the 
Board's April 3 recommendation because FMCSA believes that it does not 
meet the statutory requirements. FMCSA has developed a proposal based 
on the alternative proposal shown in Table 10, above.

A. Adjustment for Change in CMV Definition

    The alternative proposals started with the revenue requirement, 
calculated (as described above) to be $113,340,945, and then estimated 
the maximum revenue that would be collected, taking into account the 
change to the definition of CMV that includes power units only. Table 
12, below, shows this calculation for a population close to, but not 
exactly the same as, the full population. Multiplying the number of 
motor carrier entities in each bracket by the fees per entity yields 
the total revenues for each bracket, as shown in the third column from 
the left. Summing across all six brackets yields the maximum total 
revenue that could be collected in 2010 (assuming full compliance and 
no bracket shifting). This amount would be just over $70 million, well 
short of the $113 million revenue requirement.
    The elimination of trailers from the definition of CMV reduces many 
carriers' fleet sizes, causing some of them to drop into a lower 
bracket and, consequently pay less. Thus, even with full compliance and 
no bracket shift, existing fees would be inadequate and would have to 
be increased to meet each State's revenue requirement.
    According to the alternative proposals, increasing each fee by a 
factor of 1.617905 would raise revenues to $113 million after the 
change in the CMV definition, all other things being unchanged. This 
adjustment is shown in the final two columns on the right--the fees 
have been increased by a factor of almost 1.618, and the totals for the 
brackets are shown to total the $113 million revenue requirement.

Table 12--Derivation of Fees Needed To Generate the Full Revenue Requirement With 100% Compliance and No Bracket
                                                      Shift
----------------------------------------------------------------------------------------------------------------
                                                                                       Current
                 Bracket                   Current fee    Carriers       Revenue      fees times      Revenue
                                                                                        1.618
----------------------------------------------------------------------------------------------------------------
0-2......................................          $39      267,144     $10,418,616          $63     $16,830,072
3-5......................................          116       76,499       8,873,884          188      14,381,812
6-20.....................................          231       56,321      13,010,151          374      21,064,054
21-100...................................          806       17,260      13,911,560        1,304      22,507,040
101-1000.................................        3,840        3,513      13,489,920        6,213      21,826,269
1001+....................................       37,500          276      10,350,000       60,671      16,745,196
                                          ----------------------------------------------------------------------
    Total................................  ...........      421,013      70,054,131  ...........     113,354,443
----------------------------------------------------------------------------------------------------------------

    Because these calculations exclude any consideration of the effect 
of either compliance or bracket shift, they show an unrealistically 
high collection of revenue. The fees would have to be set higher in 
order to overcome these additional factors affecting overall revenue. 
However, it is also clear, as even the motor carrier industry interests 
recognize, that an increase of more than 61 percent is necessary just 
to account for the statutory change.

B. Registration Percentage Reasonableness (RPR) Factor

    In response to FMCSA concern that the Board's recommendation did 
not take into account improved enforcement activities, the alternative 
proposals included a goal of 90 percent

[[Page 45593]]

compliance by motor carrier entities based in participating States. For 
entities in the non-participating States, however, the alternative 
proposals did not consider a compliance target of 90 percent to be 
feasible. Because those States do not receive revenues through the UCR 
system, they do not have the incentive to exert effort on enforcement; 
and compliance rates could well remain low. For this reason, the 
alternative proposals used a lower goal of 80 percent compliance for 
registration by entities in the non-participating States.
    While FMCSA acknowledges that 100 percent compliance may not be 
feasible, it agrees with the concept of setting fees based on an 
assumption of significantly improved compliance and enforcement 
activities. This concept represents a reasonable compromise between 
fairness to compliant carriers, giving incentives to States to improve 
enforcement, and maximizing the chance of meeting the States' revenue 
requirements.
    FMCSA, however, believes that the compliance target included in the 
alternative proposals for carriers in non-participating States is 
unrealistically high in light of the limited leverage that the 
participating States have over enforcement beyond their borders. Recent 
data compiled by FMCSA shows compliance rates of approximately 40 
percent among carriers based in non-participating States. FMCSA 
considers a target of 59 percent in non-participating States to be more 
reasonable. FMCSA believes that if participating States improve their 
roadside enforcement activities, they will be able to capture potential 
registrants from non-participating States when they cross borders into 
participating States. Based on data provided by the Board, FMCSA has 
determined that currently, only 28 of the 41 participating States, or 
just over two-thirds, actively engage in roadside enforcement. If all 
41 participating States actively conducted roadside UCR enforcement at 
the same level conducted by the 28 participating States, FMCSA believes 
that such increased use of this enforcement tool would improve 
compliance rates among carriers from the non-participating States. 
FMCSA estimates that the current 40 percent compliance rate by carriers 
in non-participating States might reasonably be expected to improve to 
(41/28) * 40 percent, or 59 percent.
    As shown in Table 13, the alternative proposals combined the 
assumptions of 90 and 80 percent compliance in participating and non-
participating States respectively, to generate a weighted average 
projected compliance rate of 88.85 percent. This table also shows the 
effects of FMCSA's adjusted compliance rate of 59 percent in the non-
participating States. The FMCSA proposal produces a weighted average 
projected compliance rate of 86.42 percent.

                          Table 13--Registration Percentage Reasonableness (RPR) Factor
----------------------------------------------------------------------------------------------------------------
                                    Approximate                       Board's                         FMCSA's
                                      recent          Board's        projected        FMCSA's        projected
                                    population    estimated  RPR   registrations  estimated  RPR   registrations
----------------------------------------------------------------------------------------------------------------
Participating States............         383,000             90%         344,700             90%         344,700
Non-Participating States........          50,000             80%          40,000             59%          29,500
                                 -------------------------------------------------------------------------------
    Total.......................         433,000          88.85%         384,700          86.42%         374,200
----------------------------------------------------------------------------------------------------------------

C. Shortfall Adjustment Factor

    Factoring in both the change in definition of CMV and the RPR, the 
first alternative proposal calculated the maximum revenue to be only 
88.85 percent of $70,054,131, or $62,239,770, a loss of $7,814,351 and 
considerably less than the $113,340,945 revenue requirement. The effect 
of bracket shift, calculated at its 2008 rate, would be to reduce the 
maximum $70,054,131 revenue by 25.04 percent for a loss of $17,541,552. 
Subtracting both the RPR and bracket shift factors from the maximum 
anticipated revenue of $70,054,131 yields a reduced maximum anticipated 
revenue totaling $44,698,218.
    To determine an appropriate fee increase that would remedy the 
shortfall, the alternative proposal then divided the maximum adjusted 
anticipated revenue ($44,698,218) into the revenue requirement 
($113,340,945). This produced a shortfall adjustment factor of about 
2.54. Multiplying this factor by the current fees for each bracket 
yielded a set of fees with a maximum of $99 per CMV.

          Table 14--Derivation of Fee for Alternative Proposal
------------------------------------------------------------------------
                                                                Current
            Bracket                Number of CMVs    Current   fee times
                                                       fee        2.54
------------------------------------------------------------------------
1..............................  0-2..............        $39        $99
2..............................  3-5..............        116        295
3..............................  6-20.............        231        587
4..............................  21-100...........        806      2,047
5..............................  101-1,000........      3,840      9,754
6..............................  1,001 and above..     37,500     95,250
------------------------------------------------------------------------

    The second alternative proposal included the same analysis set 
forth above, but with a 12.52 percent bracket shift factor (instead of 
25.04 percent). This was based on the assumption that the bracket 
shifting rate for 2010 would be about half of the 2008 rate. This 
assumption was based on the fact that, under the new definition of CMV, 
2010 fleet sizes are estimated to be approximately one-half of the 
prior years' fleet sizes, leaving out trailers and the data 
uncertainties associated with them. However, FMCSA does not believe 
that the Subcommittee provided convincing support or justification for 
this assumption.

[[Page 45594]]

D. FMCSA Adjustments

    FMCSA agrees with the basic principles of this alternative fee 
proposal, but makes several adjustments. First, as discussed in Section 
V.B., above, the Agency's proposal adjusts the RPR factor and resulting 
compliance rate slightly--from 88.85 percent to 86.42 percent--to 
reflect the difficulty of increasing compliance in non-participating 
States.
    Second, the Agency's proposal is based on a reconsideration of the 
effects of increasing the compliance rate. The alternative proposal's 
calculations assume that registering 88.85 percent of carriers would 
mean bringing in 88.85 percent of revenue. However, compliance rates 
measured as a percentage of carriers will not be directly proportional 
to revenues. This is because carriers with different fleet sizes pay 
different fees, and compliance rates vary by carrier size. As shown 
below, increasing revenue collection to 88.85 percent of the maximum 
available revenue would represent only a small increase from existing 
levels and would not reflect the effect that projected increased 
compliance levels of 80 or 90 percent of carriers would have on 
revenue. To address this issue, FMCSA developed a proposal that 
calculates the effect of increased registration rates on revenue 
collection.
    The FMCSA proposal starts by estimating the total revenue that the 
existing UCR fee structure would bring in if there were (1) 100 percent 
participation using the 2010 carrier population; (2) no change in the 
definition of CMVs; and (3) no bracket shift. This estimate is made by 
multiplying the current fee for each bracket by the total number of 
active carriers in the MCMIS data base falling into that bracket, based 
on the previous CMV definition (which included both power units and 
trailers). Freight forwarders and brokers are included in the first 
bracket. Summing the products across all six brackets yields 
$123,964,113 in revenue, as shown in Table 15.

        Table 15--Calculation of Maximum Revenue at Existing Fees
------------------------------------------------------------------------
                                   Active                     Maximum
            Bracket               carriers   Current fee    revenue  by
                                  (MCMIS)*    per entity      bracket
------------------------------------------------------------------------
1**...........................      218,829          $39       8,534,331
2.............................       89,773          116      10,413,668
3.............................       85,058          231      19,648,398
4.............................       30,716          806      24,757,096
5.............................        8,118        3,840      31,173,120
6.............................          785       37,500      29,437,500
                               -----------------------------------------
    Total.....................      433,279  ...........     123,964,113
------------------------------------------------------------------------
* Population scaled down from 433,322 to the 2008 estimate of 433,279.
** Includes brokers and freight forwarders.

    This amount represents the most that the UCR Plan could generate if 
no changes were made to the existing fees. (Note that this total is 
greater than the revenue target of $113,340,945, because the bracket 
and fee structure was originally developed assuming a somewhat smaller 
active population.)
    Starting with this maximum revenue ($123,964,113), FMCSA then 
estimated the effects of bracket shifting. Assuming that bracket 
shifting reduces revenue collection across the spectrum by the same 
25.04 percent calculated for registered carriers, FMCSA found that the 
maximum revenue would be $123,964,113 * (100 percent-25.04 percent), 
which is $92,923,499. The actual amount of revenue collected in 2008 
was $76,617,155, which is about 82.5 percent of the adjusted maximum 
revenue after bracket shifting is taken into account. The difference 
between these two amounts, $16,306,344, is the estimated loss of 
revenue resulting from non-compliance. FMCSA believes that some portion 
of this lost revenue could be recovered by increasing the compliance 
rate.
    The FMCSA proposal estimates the amount that could be recovered by 
comparing the current compliance rate to the RPR developed for the 
alternative proposals and modified by FMCSA. The compliance in 2008 was 
270,794 registrants out of a total population of 433,279, for a rate of 
62.50 percent. (Note that this rate is considerably lower than the rate 
of revenue collection which was 82.5 percent of the maximum revenue 
available after the effect of bracket shift. This difference is due to 
the greater compliance rate of larger entities, which raises revenue 
collections disproportionately.) A compliance rate of 62.50 percent 
leaves 37.50 percent noncompliance. Raising the compliance rate to 
86.42 percent assumes that most of the current noncompliant carriers 
would register. The increase from 62.50 percent compliance to 86.42 
percent would mean capturing 63.79 percent of all non-compliant 
carriers. (The increase in compliance by 23.92 percentage points out of 
the total of 37.50 percent noncompliant carriers would mean that the 
improvement in compliance would represent 23.92/37.50 or 63.79 percent 
of all noncompliant carriers.)
    The next step in FMCSA's approach is to calculate how much of the 
$16,306,344 in lost revenues would be brought in by capturing 63.79 
percent of the noncompliant carriers. This calculation is difficult to 
perform because FMCSA believes there is no data available that can 
predict with certainty the fleet sizes of the carriers that would be 
brought in to reach the RPR. Nonetheless, it is likely that, just as 
with the carrier population as a whole, the carriers that remain non-
compliant despite increased enforcement efforts would have somewhat 
smaller fleet sizes. The new registrants captured as a result of 
increased enforcement efforts would have larger fleet sizes. Therefore, 
the percentage of currently uncollected revenues that would continue to 
remain uncollected even after enforcement efforts are improved would be 
smaller than the percentage of currently unregistered carriers that 
would still remain unregistered.
    FMCSA does not know of any method to estimate with certainty the 
extent of this effect. However, it is reasonable to assume that the 
relationship between the percentage of uncollected revenues and the 
percentage of unregistered carriers after the increase in compliance 
will be similar to the relationship between the current percentage of 
uncollected revenues and current

[[Page 45595]]

percentage of unregistered carriers. Currently, (100 percent-82.5 
percent) or 17.5 percent of revenues are not being collected. The ratio 
of 17.5 percent in uncollected revenues to the 37.5 percent of carriers 
that are not registered is 0.468. As stated previously, with improved 
compliance, FMCSA believes that 63.79 percent of non-compliant carriers 
can be registered, leaving only 36.21 percent non-compliant. 
Multiplying 0.468 by 36.21 percent yields 17.0 percent, which is 
FMCSA's estimate of the percentage of currently uncollected revenues 
that will remain uncollected even after compliance improves (i.e., even 
after registering 63.79 percent of currently noncompliant carriers). 
Thus, (100 percent-17.0 percent) or 83.0 percent of the currently 
uncollected revenues are assumed to be recoverable when 63.79 percent 
of the currently noncompliant carriers are registered. Multiplying the 
$16,306,344 in currently uncollected revenues by 83.0 percent yields an 
increase of $13,543,247.
    This increase in revenue, added to the $76,617,155 that was 
collected at current compliance rates, would bring collections to 
$90,160,402. However, this estimate does not take into account the 
change in the definition of CMV. Eliminating trailers from the 
carriers' fleet sizes caused many of them to drop to lower brackets, 
where they pay lower amounts. In the absence of a change in fees, 
revenue would drop significantly. FMCSA estimates the size of this drop 
by comparing the maximum revenue available from the existing 
population, as recorded in MCMIS using the new CMV definition, to the 
maximum revenue available using the old definition. Comparing the 
maximum revenue derived using the new definition of CMV and the 2010 
population ($70,018,681) with the maximum revenue derived using the old 
definition ($123,964,113) produces a ratio of 0.5648. Applying this 
factor to the figure we derived earlier by taking into account the RPR 
and bracket shifting ($90,160,402) results in estimated revenues of 
only $50,925,322 if the current fees were not increased. This revenue 
estimate, based on the 2008 population, would rise very slightly to 
$50,955,411 after scaling up by 433,535/433,279 to account for the 
slightly larger 2010 population. In other words, after factoring in the 
RPR and bracket shifting, FMCSA estimates that the Plan would only 
collect $50,955,411 if the fees are not adjusted.
    This is far less than the revenue amount the States are entitled to 
receive by statute. Consequently, the FMCSA proposal includes an 
adjustment factor to remedy this shortfall. Dividing the revenue target 
($113,340,945) by the estimated revenue based on current fees 
($50,954,411) produces a shortfall adjustment factor of 2.22432. 
Applying this factor to the current fees yields FMCSA's proposed fee 
structure, as shown in Table 16.

             Table 16--Derivation of Fee for FMCSA Proposal
------------------------------------------------------------------------
                                                               2009 fee
           Bracket              Number of CMVs  Current fee     times
                                                               2.22432
------------------------------------------------------------------------
1............................  0-2............          $39          $87
2............................  3-5............          116          258
3............................  6-20...........          231          514
4............................  21-100.........          806        1,793
5............................  101-1,000......        3,840        8,541
6............................  1,001 and above       37,500       83,412
------------------------------------------------------------------------

    FMCSA believes that this proposal meets the statutory objective of 
ensuring that the fees are sufficient to provide the revenues to which 
the participating States are entitled. It is based on a reasonable 
estimate of the number of active motor carrier entities subject to the 
UCR fees. It adjusts the fees to reflect the statutory change in the 
applicable definition of commercial motor vehicle. It further adjusts 
the fees to recognize the historical occurrence of revenue shortfalls 
caused by bracket shifting. Finally, it establishes reasonable targets 
for compliance by the motor carrier industry to encourage enhanced 
enforcement efforts by the participating States.

VI. Regulatory Changes

    In view of the foregoing, FMCSA is proposing to revise 49 CFR part 
367 in several respects. First, current subpart A, which contains 
regulations implementing the provisions of now-repealed 49 U.S.C. 
14504, would be removed in its entirety. Second, the heading of 49 CFR 
367.20 would be changed to specify that the fees established would be 
applicable to registration years 2007, 2008 and 2009. Third, a new 49 
U.S.C. 367.30 would establish the fees applicable to registration years 
beginning on January 1, 2010. A technical change is also being proposed 
in the headings to the fee tables to make clear that the fees are 
applicable to all entities that are required to register and pay fees 
to the UCR Plan.

VII. Regulatory Analyses and Notices

Executive Order 12866 (Regulatory Planning and Review) and DOT 
Regulatory Policies and Procedures

    FMCSA has determined this proposed rule is a nonsignificant 
regulatory action within the meaning of Executive Order 12866 and the 
U.S. Department of Transportation's regulatory policies and procedures 
(DOT Order 2100.5 dated May 22, 1980; 44 FR 11034, February 26, 1979). 
The costs of this NPRM would not exceed the $100 million annual 
threshold as defined in Executive Order 12866. This rule is not 
economically significant based on the size of the additional fees to be 
collected under the UCR. The costs of the rule are required pursuant to 
an explicit Congressional mandate in SAFETEA-LU. Because a majority of 
the fees under the proposed rule are already being collected under the 
UCR system, the total cost of the proposed rule will be substantially 
less than $100 million per year. A major intent of the proposed rule is 
to eliminate the revenue shortfalls that the UCR system has experienced 
over the past several years; that shortfall was $38 million in 2008, 
for instance, and of similar magnitude in 2007 and 2009. This increase, 
though, will clearly be less than the $100 million threshold for a 
significant impact on the economy. The Agency has prepared a 
preliminary regulatory analysis analyzing the rule. A copy of the 
preliminary analysis document is included in the docket referenced at 
the beginning of this notice.

[[Page 45596]]

Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA), as amended by the Small 
Business Regulatory Enforcement and Fairness Act (SBREFA), (5 U.S.C. 
601-612), requires Federal agencies to analyze the impact of 
rulemakings on small entities, unless the agency certifies the proposed 
rule will not have a significant economic impact on a substantial 
number of small entities. FMCSA has determined that the fees being 
proposed in this rule would affect large numbers of small entities 
because the proposed rule sets fees for hundreds of thousands of 
carriers of all sizes, and small entities are defined to include all 
entities that are not dominant in their industries. In previous 
rulemakings, FMCSA identified for-hire carriers with fewer than 145 
power units (i.e., trucks or tractors) as small. Thus, all of the for-
hire carriers in Brackets 1 through 4 would be considered small, as 
would many of those in Bracket 5.
    After careful consideration, however, FMCSA has determined that, in 
every case involving a viable small entity, the recommended UCR fee 
will be well below the threshold level of one percent of revenues used 
for determining significant impacts. This conclusion is based on the 
observation that the maximum fee per vehicle is $87, which is less than 
one percent of the $14,500 annual salary of even a single employee 
working 40 hours per week for 50 weeks per year and earning the current 
Federal minimum wage of $7.25.\12\ Because an entity without sufficient 
revenues to pay even one employee per vehicle would not be viable, it 
is clear that the recommended UCR fees will not reach the threshold of 
one percent of revenues. Thus, FMCSA certifies that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
---------------------------------------------------------------------------

    \12\ The Fair Labor Standards Act (FLSA) establishes minimum 
wage, overtime pay, recordkeeping, and youth employment standards 
affecting employees in the private sector and in Federal, State, and 
local governments. Covered nonexempt workers are entitled to a 
minimum wage of not less than $7.25 per hour effective July 24, 
2009. http://www.dol.gov/esa/whd/flsa/
---------------------------------------------------------------------------

Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4; 2 U.S.C. 
1532) requires each agency to assess the effects of its regulatory 
actions on State, local, and tribal governments and the private sector. 
Any agency promulgating a final rule likely to result in a Federal 
mandate requiring expenditures by a State, local, or tribal government, 
or by the private sector of $136.1 million or more in any one year, 
must prepare a written statement incorporating various assessments, 
estimates, and descriptions that are delineated in the Act. FMCSA has 
preliminarily determined that this proposal would not have an impact of 
$136.1 million or more in any one year.

Executive Order 12988 (Civil Justice Reform)

    This proposed rule meets applicable standards in sections 3(a) and 
3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize 
litigation, eliminate ambiguity, and reduce burden.

Executive Order 13045 (Protection of Children)

    FMCSA has analyzed this proposed action under Executive Order 
13045, Protection of Children from Environmental Health Risks and 
Safety Risks. We have determined preliminarily that this rulemaking 
would not create an environmental risk to health or safety that would 
disproportionately affect children.

Executive Order 12630 (Taking of Private Property)

    This proposed rule would not affect a taking of private property or 
otherwise have taking implications under Executive Order 12630, 
Governmental Actions and Interference with Constitutionally Protected 
Property Rights.

Executive Order 13132 (Federalism)

    This proposed rule has been analyzed in accordance with the 
principles and criteria contained in Executive Order 13132. FMCSA has 
preliminarily determined that this rulemaking would not have a 
substantial direct effect on States, nor would it limit the policy-
making discretion of the States. Nothing in this proposal would preempt 
any State law or regulation. As detailed above, the UCR Board of 
Directors includes substantial State representation. The States have 
already had notice of this action and opportunity for input through 
their representatives. FMCSA also requests comments on any substantial 
direct effect on the States as outlined in Executive Order 13132.

Executive Order 12372 (Intergovernmental Review)

    The regulations implementing Executive Order 12372 regarding 
intergovernmental consultation on Federal programs and activities do 
not apply to this program.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that FMCSA consider the impact of paperwork and other information 
collection burdens imposed on the public. We have determined that there 
are no current new information collection requirements by FMCSA 
associated with this proposed rule.

National Environmental Policy Act

    The agency analyzed this rule 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, issued 
March 1, 2004 (69 FR 9680), that this action is categorically excluded 
(CE) under Appendix 2, paragraph 6.h of the Order from further 
environmental documentation. The CE under Appendix 2, paragraph 6.h 
relates to establishing regulations and actions taken pursuant to the 
regulations implementing procedures to collect fees that will be 
charged for motor carrier registrations and insurance.
    We have also analyzed this rule under the Clean Air Act, as amended 
(CAA), section 176(c) (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 involves policy development.

Executive Order 13211 (Energy Effects)

    FMCSA has analyzed this proposed rule under Executive Order 13211, 
Actions Concerning Regulations That Significantly Affect Energy Supply, 
Distribution, or Use. We have determined preliminarily that it would 
not be a ``significant energy action'' under that Executive Order 
because it would not be likely to have a significant adverse effect on 
the supply, distribution, or use of energy.

List of Subjects in 49 CFR Part 367

    Commercial motor vehicle, Financial responsibility, Motor carriers, 
Motor vehicle safety, Registration, Reporting and recordkeeping 
requirements.

    For the reasons discussed in the preamble, the Federal Motor 
Carrier Safety Administration proposes to amend title 49 CFR chapter 
III, subchapter B, part 367 as follows:

PART 367--STANDARDS FOR REGISTRATION WITH STATES

    1. Revise the authority citation for part 367 to read as follows:

    Authority: 49 U.S.C. 13301, 14504a; and 49 CFR 1.73.

[[Page 45597]]

Subpart A--[Removed and Reserved]

    2. Remove and reserve subpart A, consisting of Sec. Sec.  367.1 
through 367.7 and Appendix A to subpart A.

Subpart B--Fees Under the Unified Carrier Registration Plan and 
Agreement

    3. Amend subpart B by revising the heading of Sec.  367.20 to read 
as follows:


Sec.  367.20  Fees Under the Unified Carrier Registration Plan and 
Agreement for Registration Years 2007, 2008 and 2009.

* * * * *
    4. Add Sec.  367.30 to subpart B to read as follows:


Sec.  367.30  Fees under the Unified Carrier Registration Plan and 
Agreement for Registration Years Beginning in 2010.

            Fees Under the Unified Carrier Registration Plan and Agreement for Each Registration Year
----------------------------------------------------------------------------------------------------------------
                                          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       private carrier, or     leasing company
                                              freight  forwarder         freight forwarder
----------------------------------------------------------------------------------------------------------------
B1......................................  0-2.......................                      $87                $87
B2......................................  3-5.......................                      258  .................
B3......................................  6-20......................                      514  .................
B4......................................  21-100....................                    1,793  .................
B5......................................  101-1,000.................                    8,541  .................
B6......................................  1,001 and above...........                   83,412  .................
----------------------------------------------------------------------------------------------------------------


    Issued on: August 28, 2009.
Rose A. McMurray,
Acting Deputy Administrator.
[FR Doc. E9-21232 Filed 9-2-09; 8:45 am]
BILLING CODE 4910-EX-P`