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FMCSA May Eliminate the ‘DOT Employment Application’ Requirement…But Why?

By Dave Osiecki, Pres., Scopelitis Transportation Consulting LLC & Regulatory Consultant to DriverReach

On March 8, 2019, the Federal Motor Carrier Safety Administration (FMCSA) published an advance notice of proposed rule-making (ANPRM) concerning the long-standing requirement for prospective drivers to complete an employment application when applying for a driving job. In summarizing its 19-page ANPRM, FMCSA stated that it is requesting “…public comment on the value of and need for this requirement.” The Agency further explained it’s seeking “…ways the requirement for an employment application could be changed to reduce the associated paperwork burdens for drivers and motor carriers, including but not limited to the complete elimination of the requirement.”

This rule-making action is another FMCSA step down the Trump Administration’s ‘regulatory reform and relief’ road, and it’s one that will likely have some trucking industry stakeholders scratching their heads wondering ‘why?’ This may be the case for some since FMCSA emphasized in its notice that it is not considering elimination of the background investigation requirements associated with the driver employment process required by 49 CFR Parts 383 and 391 (the CDL and driver qualification rules respectively).

Before further explaining the notice and FMCSA’s thinking, it’s important to make clear that FMCSA’s action is simply an advance proposal. This means FMCSA has not made any firm decision on whether to change or remove the employment application requirement. It is simply considering it as part of a broader, ongoing regulatory reform initiative, and it is asking the industry and other stakeholders for their thoughts and input on the idea. That said, let’s get to some specifics.

FMCSA provided the following 6 reasons why it is thinking about changing or eliminating the required information and the employment application: 

  1. it may limit flexibility for prospective drivers and motor carriers, and may be overly prescriptive;
  2. it’s not typical for the Federal government to require employers in DOT-regulated industries to have applicants complete an employment application and provide government-required information (FAA and Federal Railroad Administration were cited as examples);
  3. the required information might be redundant of certain other regulatory requirements and, therefore, may be unnecessary or could be obtained more efficiently from alternative sources;
  4. the application is merely a record-keeping document and does not determine whether a driver is qualified to operate a CMV;
  5. the record-keeping requirement imposes significant compliance burdens on the industry; and,
  6. the application and required information constitutes (in government-speak) an “information collection” burden subject to the federal Paperwork Reduction Act of 1995 (PRA). As its name suggests, the PRA requires federal agencies to minimize paperwork and “information collection” burdens on the public.

Taking some key words from each of these 6 reasons, here’s a reason-summary: it’s an overly prescriptive, atypical, redundant, unnecessary and burdensome record-keeping requirement that creates a large “information collection” burden for the motor carrier industry.

In order to facilitate and organize public input on the idea and the reasons for it, FMCSA posed 11 questions, and requested commenters address their comments specifically to one or more of the questions. Here are a few:

  • “How would the elimination of 49 CFR 391.21, which includes the requirement to have prospective drivers complete an employment application, impact a motor carrier’s ability to hire safe drivers?”
  • “If the requirement in 49 CFR 391.21 for an employment application is not eliminated in its entirety, what elements should be retained to determine the safety performance history of the driver?”
  • “Knowing there are…investigation requirements that would not be removed by changing or eliminating the requirement for an employment application, for example 383.35, 391.23, and 391.53, how would an employer and driver demonstrate compliance with each requirement in the absence of an employment application for both CDL and non-CDL CMV drivers?”

FMCSA staff deserve kudos on thinking through and developing numerous insightful questions to help channel industry and stakeholder input.

If this topic interests you, and you’re thinking about providing comments to FMCSA, the full ANPRM including all 11 questions can be found at:  https://www.fmcsa.dot.gov/regulations/rulemaking/2019-04188 

If you want to provide your comments on FMCSA's ANPRM, click here: https://www.regulations.gov/comment?D=FMCSA-2018-0247-0001

Have questions? Want to know more? If so, call or email Dave Osiecki, of Scopelitis Transportation Consulting LLC, at dosiecki@scopelitisconsulting.com or call: 202-728-2851


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