[Federal Register Volume 87, Number 169 (Thursday, September 1, 2022)]
[Rules and Regulations]
[Pages 53680-53695]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-18944]


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DEPARTMENT OF TRANSPORTATION

Federal Motor Carrier Safety Administration

49 CFR Part 367

[Docket No. FMCSA-2022-0001]
RIN 2126-AC51


Fees for the Unified Carrier Registration Plan and Agreement

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

ACTION: Final rule.

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SUMMARY: FMCSA amends the regulations for the annual registration fees 
States collect from motor carriers, motor private carriers of property, 
brokers, freight forwarders, and leasing companies for the Unified 
Carrier Registration (UCR) Plan and Agreement for the 2023 registration 
year and subsequent registration years. The fees for the 2023 
registration year would be reduced below the fees for 2022. The 
reduction in annual registration fees would be between $18 and $17,688 
per entity, depending on the applicable fee bracket that is based on 
the number of vehicles owned or operated by the affected entity.

DATES: Effective September 1, 2022.
    Petitions for Reconsideration of this final rule must be submitted 
to the FMCSA Administrator no later than October 3, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Riddle, Director, Office 
of Registration and Safety Information, FMCSA, 1200 New Jersey Avenue 
SE, Washington, DC 20590-0001, [email protected]. If you have 
questions on viewing or submitting material to the docket, call Dockets 
Operations at (202) 366-9826.

SUPPLEMENTARY INFORMATION: 
    FMCSA organizes this final rule as follows:

I. Availability of Rulemaking Documents
II. Executive Summary
    A. Purpose and Summary of the Regulatory Action
    B. Costs and Benefits
III. Abbreviations
IV. Legal Basis for Rulemaking
V. Discussion of Proposed Rulemaking and Comments
    A. The Proposed Rulemaking
    B. Comments Received
    C. Reopening of Comment Period
VI. Changes From the NPRM
VII. International Impacts
VIII. Final 2023 State UCR Revenue Entitlements and Revenue Targets
IX. Section-by-Section Analysis
X. Regulatory Analyses
    A. E.O. 12866 (Regulatory Planning and Review), E.O. 13563 
(Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures
    B. Congressional Review Act
    C. Regulatory Flexibility Act (Small Entities)
    D. Assistance for Small Entities
    E. Unfunded Mandates Reform Act of 1995
    F. Paperwork Reduction Act (Collection of Information)
    G. E.O. 13132 (Federalism)
    H. Privacy
    I. E.O. 13175 (Indian Tribal Governments)
    J. National Environmental Policy Act of 1969

I. Availability of Rulemaking Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2022-0001/document and 
choose the document to review. To view comments, click this final rule, 
then click ``Browse Comments.'' If you do not have access to the 
internet, you may view the docket online by visiting Dockets Operations 
at U.S. Department of Transportation, Room W12-140, 1200 New Jersey 
Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. To be sure someone is there to 
help you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Dockets Operations.

II. Executive Summary

A. Purpose and Summary of the Regulatory Action

    Under the UCR Statute, the UCR Plan and the 41 States participating 
in the UCR Agreement collect fees from motor carriers, motor private 
carriers of property, brokers, freight forwarders, and leasing 
companies. The UCR Plan and Agreement are administered by a 15-member 
board of directors: 14 appointed from the participating States and the 
industry, plus the Deputy Administrator of FMCSA. Revenues collected 
are allocated to the participating States and the UCR Plan.
    In accordance with 49 U.S.C. 14504a(d)(7) and (f)(1)(E)(ii), fee 
adjustments must be requested by the UCR Plan when annual revenues 
exceed the maximum allowed. Also, if there are excess funds after 
payments to the States and for administrative costs, they are retained 
in the UCR Plan's depository, and fees in subsequent fee years must be 
reduced as required by 49 U.S.C. 14504a(h)(4). These two distinct 
provisions each contribute to the fee adjustment in this final rule, 
which reduces the annual registration fees established pursuant to the 
UCR

[[Page 53681]]

Agreement for the 2023 registration year and subsequent years.
    To determine the fee reduction recommendation for the 2023 
registration year, the UCR Plan Board has estimated future period 
collections using an average of the collections of the past 3 closed 
years. It also considered that there has been no change to the 
authorized administrative allowance since 2020 and recommended a modest 
increase in the allowance.

B. Costs and Benefits

    The changes in this final rule will reduce the fees paid by motor 
carriers, motor private carriers of property, brokers, freight 
forwarders, and leasing companies to the UCR Plan and the participating 
States. While each motor carrier or other covered entity may realize a 
reduced burden, fees are considered by the Office of Management and 
Budget (OMB) Circular A-4, Regulatory Analysis, as transfer payments, 
not costs. Transfer payments are payments from one group to another 
that do not affect total resources available to society. Therefore, 
transfers are not considered in the monetization of societal costs and 
benefits of rulemakings.

III. Abbreviations

APA Administrative Procedure Act
CE Categorical Exclusion
CFR Code of Federal Regulations
CMV Commercial Motor Vehicle
DOT Department of Transportation
E.O. Executive Order
FMCSA Federal Motor Carrier Safety Administration
FR Federal Register
NPRM Notice of Proposed Rulemaking
OMB Office of Management and Budget
OOIDA Owner Operator Independent Drivers Association
PTA Privacy Threshold Assessment
RFA Regulatory Flexibility Act
RFI Request for Information
SBREFA Small Business Regulatory Enforcement Fairness Act of 1996
Secretary Secretary of Transportation
UCR Unified Carrier Registration
U.S.C. United States Code

IV. Legal Basis for the Rulemaking

    This rule adjusts the annual registration fees required by the UCR 
Agreement established by 49 U.S.C. 14504a. The fee adjustments are 
authorized by 49 U.S.C. 14504a because the total revenues collected for 
previous registration years exceed the maximum annual revenue 
entitlements of $107.78 million distributed to the 41 participating 
States plus the amount established for the administrative costs 
associated with the UCR Plan and Agreement. The UCR Plan Board 
submitted the requested adjustments in accordance with 49 U.S.C. 
14504a(f)(1)(E)(ii), which provides for the UCR Plan Board to request 
an adjustment by the Secretary of Transportation (the Secretary) when 
the annual revenues exceed the maximum allowed. In addition, 49 U.S.C. 
14504a(h)(4) states that any excess funds from previous registration 
years held by the UCR Plan in its depository, after distribution to the 
States and for payment of administrative costs, shall be retained ``and 
the fees charged . . . shall be reduced by the Secretary accordingly.'' 
(49 U.S.C. 14504a(h)(4)).
    The UCR Plan Board must also obtain DOT approval to revise the 
total revenue to be collected, in accordance with 49 U.S.C. 
14504a(d)(7). This rule grants the UCR Plan Board's requested increase 
in total revenues to be collected to address anticipated increased 
costs of administering the UCR Agreement. No changes in the revenue 
allocations to the participating States were recommended by the UCR 
Plan Board or authorized by this rule.
    The Secretary also has broad rulemaking authority in 49 U.S.C. 
13301(a) to carry out 49 U.S.C. 14504a, which is part of 49 U.S.C. 
subtitle IV, part B. Authority to administer these statutory provisions 
has been delegated to the FMCSA Administrator by 49 CFR 1.87(a)(2) and 
(7).
    The Administrative Procedure Act (APA) allows agencies to make 
rules effective immediately with good cause, instead of requiring 
publication 30 days prior to the effective date. 5 U.S.C. 553(d)(3). 
FMCSA finds there is good cause for this rule to be effective upon 
publication so that the UCR Plan and the participating States may begin 
collection of fees on and after October 1, 2022, for the registration 
year that will begin on January 1, 2023. The immediate commencement of 
fee collection will avoid delay in distributing the statutory 
entitlement revenues to the participating States.

V. Discussion of Proposed Rulemaking and Comments

A. The Proposed Rule

    On January 24, 2022, FMCSA published in the Federal Register at 87 
FR 3489 an NPRM titled ``Fees for the Unified Carrier Registration Plan 
and Agreement'' (Docket No. FMCSA-2022-0001). The NPRM proposed that 
the UCR Plan and the 41 States participating in the UCR Agreement 
establish and collect fees from motor carriers, motor private carriers 
of property, brokers, freight forwarders, and leasing companies. The 
UCR Plan and Agreement are administered by a 15-member board of 
directors: 14 appointed from the participating States and the industry, 
plus the Deputy Administrator of FMCSA (49 U.S.C. 14504a(d)(1)(B)(i)-
(iv)). Revenues collected are allocated to the participating States and 
the UCR Plan. (49 U.S.C. 14504a(d)(7), (g), and (h)).
    In accordance with 49 U.S.C. 14504a(f)(1)(E)(ii), fee adjustments 
may be requested by the UCR Plan when annual revenues exceed the 
maximum allowed. Also, if there are excess funds after payments to the 
States and for administrative costs, they are retained in the UCR 
Plan's depository, and subsequent fees must be reduced as required by 
49 U.S.C. 14504a(h)(4). These two distinct statutory provisions both 
support the fee reduction adjustment that was proposed in the NPRM. The 
NPRM proposed a reduction in the annual registration fees pursuant to a 
recommendation of the UCR Plan Board for the 2023 registration year and 
all subsequent years until a change in fees is authorized pursuant to a 
new rulemaking by the Agency.
    In its August 2021 Recommendation to FMCSA (the ``August 2021 Fee 
Recommendation''), the UCR Plan Board estimated future period 
collections using an average of the collections of the past 3 closed 
years.\1\ It also acknowledged that the UCR Plan held excess fees from 
prior fee years that were available to further reduce fees. In 
preparing its fee recommendation, the UCR Plan Board also considered 
that there has been no change to the authorized administrative cost 
allowance since 2020 and recommended a modest increase in the 
allowance. The UCR Plan Board recommended that FMCSA reduce the fees 
for all fee brackets by approximately 27 percent, and FMCSA's NPRM 
proposed the fees as recommended by the UCR Plan Board.
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    \1\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0001.
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B. Comments Received

    FMCSA solicited comments concerning the NPRM for 30 days ending 
February 23, 2022. By that date, seven comments were received. This 
included the UCR Plan Board of Directors (UCR Plan Board), Owner-
Operator Independent Drivers Association (OOIDA) (OOIDA's First 
Comment), the Truckers Auditor, a company, two individuals, and an 
anonymous commenter. Both individuals, the company, anonymous 
commenter, and Truckers Auditor all

[[Page 53682]]

commented in favor of reducing the fees and in favor of the proposal in 
general.
    During the public comment period, on February 22, 2022, the UCR 
Plan Board submitted a comment to the docket with a new recommendation 
for the fees (the UCR Comment or February 2022 Updated Fee 
Recommendation), updating the August 2021 Fee Recommendation.\2\ In the 
UCR Comment, the UCR Plan Board recommended a further fee reduction 
based upon updated actual collections and estimated fees. The February 
2022 Updated Fee Recommendation proposed fee reductions of 
approximately 31 percent below the current fees.
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    \2\ First UCR Plan Board Comment submitted on Feb. 22, 2022 
(February 2022 UCR Plan Board Recommendation), available at: https://www.regulations.gov/comment/FMCSA-2022-0001-0006.
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    After receiving and reviewing the issues raised in the comments 
submitted in response to the NPRM, on March 22, 2022, FMCSA transmitted 
a request for information (RFI) to the UCR Plan.\3\ On May 9, 2022, the 
UCR Plan Board submitted to FMCSA a response (Information Response or 
IR) to the RFI.\4\ On May 23, 2022, OOIDA, a commenter responding to 
the NPRM, requested an opportunity to comment on the IR. In a Federal 
Register notice published June 14, 2022 (87 FR 35940), FMCSA reopened 
the comment period for 14 days ``for the limited purpose of allowing 
comments on the UCR Plan's [Information Response].'' In response to 
this notice, OOIDA and a few other commenters submitted additional 
comments on or about June 28, 2022.\5\ On July 11, 2022, the UCR Plan, 
relying on 49 CFR 389.23, submitted an additional comment responding to 
OOIDA's June 28 comment (``Second Comment'').\6\ FMCSA has considered 
this additional information and comments in accordance with 49 CFR 
5.5(a)(1).
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    \3\ Both the RFI and the transmittal to the UCR Plan are 
available in the docket for this rulemaking. FMCSA-2022-0001-
010_Attachment_2.pdf and attachment_3.pdf.
    \4\ Available in the docket for this rulemaking. FMCSA-2022-
0001-010_Attachment_1.pdf.
    \5\ FMCSA-2022-0001-011_Attachment_1.pdf.
    \6\ FMCSA-2022-0001-0116_Attachment_1.pdf.
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1. Compliance With Legal Requirements
a. UCR Statute
    Comment: OOIDA contended that the proposal would violate the UCR 
statute and offered several arguments.\7\ OOIDA stated that the 
proposal does not apply the ``full $42 million revenue excess'' to 
lowering fees. OOIDA also believed that any excess funds from 2021 
should have been allocated to 2022 fees, not to 2023 fees. OOIDA also 
stated that the 2020 fees could not be imposed in 2023 (and also should 
not be imposed in 2022).
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    \7\ Available in the docket for this rulemaking at https://www.regulations.gov/comment/FMCSA-2022-0001-0008.
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    Response: OOIDA's argument that the statute requires that 2021 
excess funds should have been reflected in an adjustment in the fees 
for 2022 is discussed in more detail below. The short answer to this 
point is that reflecting such excess funds in the current adjustment 
for 2023 is warranted by the Fee Change Recommendation Policy adopted 
by the UCR Plan Board at its August 13, 2020, meeting and revised at a 
meeting on June 8, 2021. The Policy is in the docket (Tab K to the 
Information Response submitted to FMCSA by the UCR Plan Board on May 9, 
2022). FMCSA finds that this policy is consistent with a reasonable 
interpretation of the relevant statutory provisions, namely 49 U.S.C. 
14504a(d)(7), (f)(1) and (h)(4). FMCSA has no authority to address 
OOIDA's assertion that the fees should not be imposed in 2022 because, 
by statute, FMCSA proposes and makes UCR fee adjustments following a 
recommendation of the UCR Plan Board, and no fee adjustment 
recommendation was submitted for the 2022 registration year.
b. Administrative Procedure Act
    Comment: OOIDA commented that the rulemaking did not comply with 
the APA because the UCR Plan Board did not explain in the fee 
recommendation how the proposed fees were calculated or why it complied 
with the law. OOIDA further commented that there was insufficient data 
or analysis in the rulemaking docket for the public to review, 
understand, and comment on the recommended fees, and therefore the 
rulemaking proceeding did not comply with the APA. Finally, OOIDA 
commented that the UCR Plan Board did not explain how the proposed fees 
were devised or that the fees would reduce current fees by $22 million 
in excess revenues.
    Response: The Agency published an NPRM and shared with the public 
all information received from the UCR Plan Board. The notice-and-
comment rulemaking process was completed in full compliance with the 
APA. As a preliminary matter, the statute governing the UCR Plan and 
associated fees, found at 49 U.S.C. 14504a, sets forth parameters for 
the UCR Plan Board to make fee recommendations, but it does not require 
the UCR Plan Board to explain in every fee recommendation to the 
Secretary and FMCSA how the recommendation complies with the statute. 
The UCR Plan submitted the fee recommendation in accordance with the 
statute.
    The UCR Plan's August 2021 Fee Recommendation and the Agency's 
subsequent NPRM provided enough information for OOIDA to provide 
meaningful comment, including raising questions about the calculations. 
The August 2021 Fee Recommendation was in the rulemaking docket and 
included the existing fees and the proposed fees which reflected a 
reduction of approximately 27 percent for all fee brackets. It provided 
an explanation as to how the Fee Recommendation was developed by the 
Plan, including that the fee reduction was expected to result in an 
under-collection of fees, with the effect, essentially, of refunding 
excess collections in real time to UCR registrants. The UCR Plan Board 
also explained in the August 2021 Fee Proposal that it had changed the 
methodology for projecting future collections in light of the 
overcollections in several registration years. The APA requires an NPRM 
to include ``either the terms or substance of the proposed rule or a 
description of the subjects and issues involved'' (5 U.S.C. 553(b)(3)). 
The NPRM complied with both requirements, and OOIDA was able to examine 
and comment on the issues involved in great detail.
    The Agency also notes that an OOIDA employee is a member of the UCR 
Plan Board and is thus a participant in the organization making the 
recommendation. If OOIDA believes there are procedural or substantive 
errors in the UCR Plan Board submission, OOIDA, as a sitting member on 
the Board, should have raised those deficiencies (and most of the 
substantive issues discussed below) directly with the UCR Plan Board. 
The Agency finds no deficiency with the information submitted or with 
the notice provided in the NPRM.
c. Suspending Fees for the UCR Plan and Agreement Currently in Effect 
Would Require a Recommendation From the Plan and a New Rulemaking
    Comment: OOIDA also claimed that the current fees in effect are 
higher than allowed under the statute, because the fees were authorized 
for registration year 2020, and subsequent years have resulted in 
excess revenues collected in the 2020 and 2021 registration years with 
no reduction in 2021 and 2022 fees. OOIDA thus contends that FMCSA must 
``immediately suspend'' the UCR fees. OOIDA also suggests that the UCR 
Plan should apply all excess revenue collected from prior years to 
reducing

[[Page 53683]]

the fee scale for registration year 2023 or to refund amounts already 
paid for registration year 2022 to fee payers.
    Response: By statute, the Secretary sets the registration fees 
based on a recommendation from the UCR Plan Board and only after 
providing opportunity for notice and public comment. (49 U.S.C. 
14504a(d)(7)(B), 14504a(f)(1)(B)). Accordingly, FMCSA believes that any 
change in fees, including suspension of fees, would require notice and 
comment rulemaking pursuant to the APA, with an NPRM that includes such 
action within its scope. The fees currently in effect, which have been 
applied to registration years 2020, 2021, and 2022, were properly 
adopted in a final rule for registration year 2020 and all succeeding 
years until a new fee is adopted. Fees for the United Carrier 
Registration Plan and Agreement, 85 FR 8192 (Feb. 13, 2020). No other 
fee has been recommended by the UCR Plan Board or authorized by the 
Secretary since the fee for the 2020 registration year, and subsequent 
years, was adopted.
    The UCR statute does not authorize direct refunding of fees after 
the fees have been established in a final rule but does explicitly 
provide for reduction of future fees based on excess collections in 
prior years. (49 U.S.C. 14504a(h)(4)). The statute does not provide any 
authority for suspension or reduction of current fees, certainly not 
without a rulemaking based on a recommendation from the UCR Plan Board. 
The UCR Plan Board now requests a fee reduction, which is the subject 
of this rulemaking. As addressed more fully elsewhere in this final 
rule, collection periods for each registration year span three calendar 
years, and excess or shortfalls in fees cannot be known, and thus 
cannot be applied, for potential fee changes in the next calendar year. 
Instead, excess (or shortfalls in) fees are applied to adjustments in 
fees for subsequent fee years. This creates a single calendar year gap 
between fee adjustments, with odd year collections available for 
adjusting (increasing or decreasing) future odd year fees and even year 
collections affecting possible adjustments to future even year fees. 
This is spelled out in the UCR Plan's Fee Change Recommendation Policy, 
which the UCR Plan Board adopted at the August 31, 2020, Board meeting, 
and revised at the June 8, 2021, Board meeting.\8\ FMCSA notes again 
that OOIDA is a voting member of the UCR Plan Board and was present at 
the UCR Plan Board meetings when the Fee Change Recommendation Policy 
was adopted and revised.
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    \8\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, titled ``Response 
of the Unified Carrier Registration Plan'', 5-6 (May 9, 2022).
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2. Fees and Fee Structure
a. The Fee Structure of the UCR Plan and Agreement Is Progressive
    Comment: OOIDA also contended that the current and proposed fee 
structure for the UCR Plan and Agreement is not ``progressive.'' OOIDA 
pointed out, through an elaborate mathematical exercise, that a carrier 
with a vehicle fleet size at the lower end of a fee bracket will pay 
less per vehicle than a carrier at the upper end of the next lower 
bracket. OOIDA relied on a definition of ``progressive'' that requires 
the tax rate to increase when one's income increases.\9\
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    \9\ OOIDA focuses on fee per truck in its analysis, but the fee 
is based on the number of CMVs that are self-propelled (i.e., not 
including trailers) in the carrier's fleet (see 49 U.S.C. 
14504a(a)(1)(A)(ii) and (f)(1)). For its definition of progressive, 
OOIDA relies on a paper by an anonymous contributor to an online tax 
software product, Intuit TurboTax. https://turbotax.intuit.com/tax-tips/general/understanding-progressive-regressive-and-flat-taxes/L917X2gBs (retrieved May 19, 2022).
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    OOIDA also stated that the fees were not fairly allocated, and that 
expected noncompliance by some who should pay led to higher fees for 
those who do pay. OOIDA suggested that this could be avoided through 
better State enforcement, which it thought FMCSA and the UCR Plan Board 
could compel.
    OOIDA also requested that FMCSA adopt a fee structure it deemed 
``constitutional'' that proportionately divided revenue collections by 
everyone required to pay, and also only collecting sufficient funds to 
cover entitlement distributions and administrative costs (without any 
reserves).
    Response: The starting point for any analysis of this issue is the 
statute, which contains several requirements for the fee structure. The 
fees are based either on the number of commercial motor vehicles (CMVs) 
operated by motor carriers, motor private carriers and freight 
forwarders or, for brokers and leasing companies, on the smallest fee 
charged. There must be not less than four and not more than six fee 
brackets. Brackets must be based on the size of the fleet of CMVs owned 
and operated. The fees are recommended to the Secretary by the UCR Plan 
Board. The fee scale shall be progressive in the amount of the fee. 49 
U.S.C. 14504a(f)(1)(A)-(D).
    The structure of the fees for the UCR Plan and Agreement was 
developed by the Plan and carefully considered and approved by FMCSA in 
a 2007 final rule. Fees for the Unified Carrier Registration Plan and 
Agreement, 72 FR 48585 (Aug. 24, 2007). That final rule explained the 
need to reflect all the statutory requirements in the fees and fee 
structure, even if in some situations the result appeared to be 
inequitable. For example, it was recognized that the fee structure must 
ensure that the fee scale is progressive across the brackets, such that 
the individual carrier fee increases as the size of the carrier 
increases. The fact that a registrant at the top of one bracket may pay 
less per vehicle than a registrant at the bottom of the next higher 
bracket is structurally embedded in the statute. The statute requires 
that the ``fee scale shall be progressive in the amount of the fee'' 
(49 U.S.C. 14504a(f)(1)(D)), across at least four and not more than six 
fee brackets, where the brackets are based on fleet size, (49 U.S.C. 
14504a(f)(1)(C)). The fee scale is clearly ``progressive'' in this 
sense, because the fee scale increases with each bracket containing a 
larger number of CMVs for the motor carrier entities included. 
Moreover, the statute also requires that the fees be applied uniformly 
to entities in each bracket ``based on the size of the fleet.'' (49 
U.S.C. 14504a(f)(1)(C)). For particular entities, the fee may or may 
not be progressive as compared to a carrier in another bracket that is 
close in size, or that has almost the same number of CMVs in its fleet, 
but that is an expected result of the fee scale under the UCR statute. 
(72 FR at 48586).
    Another appropriate consideration in determining whether the fees 
are progressive is whether the structure shifts the burden of paying 
the fees to those entities most likely to be able to pay. The fees are 
also progressive in this sense because all the motor carriers and other 
smaller entities, such as freight forwarders, brokers and leasing 
companies, in the lower brackets provide a smaller proportion of the 
total revenues than the larger motor carriers in the higher fee 
brackets. As shown in the following table, for the 2021 registration 
year motor carriers with 0-2 vehicles in their fleet, and brokers, 
freight forwarders and leasing companies paying fees in the same 
bracket were 73.02 percent of the total number of registrants but 
provided only 23.07 percent of the revenues collected for the UCR Plan. 
Entities in bracket 2 (3-5 vehicles in their fleets) were 13.63 percent 
of the total number of registrants and provided 12.84 percent of the 
revenues. On the other hand, in the 2021 registration year, motor 
carriers with large fleet sizes that placed them

[[Page 53684]]

in the last two brackets provided a proportionally much larger share of 
the revenues. In bracket 5 (101-1000 vehicles in their fleets), the 
number of registrants was 0.52 percent of the total number of 
registrations, and these entities provided 19.51 percent of the 
revenues. Motor carriers in bracket 6 (1001 or more vehicles) were only 
0.03 percent of the total registrants and provided 9.90 percent of the 
total revenues. Very similar distributions of registered entities and 
fee revenues are shown in the table for registration year 2020 and for 
2022, to date.

                                             2022 Registration Year
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                                              Number of fee-                       Percentage of
               UCR fee bracket                    paying       Total fee revenue    fee-paying     Percentage of
                                                registrants                         registrants     fee revenue
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1 (0-2 vehicles)............................         377,390         $22,266,010           69.32           19.47
2 (3-5 vehicles)............................          83,015          14,610,640           15.25           12.77
3 (6-20 vehicles)...........................          60,981          21,404,331           11.20           18.71
4 (21-100 vehicles).........................          19,322          23,650,128            3.55           20.68
5 (101-1000 vehicles).......................           3,531          20,603,385            0.65           18.01
6 (1001 or more vehicles)...................             208          11,851,216            0.04           10.36
                                             -------------------------------------------------------------------
    Totals..................................         544,447         114,385,710
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                                             2021 Registration Year
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                                              Number of fee-                       Percentage of
               UCR fee bracket                    paying       Total fee revenue    fee-paying     Percentage of
                                                registrants                         registrants     fee revenue
----------------------------------------------------------------------------------------------------------------
1 (0-2 vehicles)............................         481,497         $28,408,323           73.02           23.07
2 (3-5 vehicles)............................          89,859          15,815,184           13.63           12.84
3 (6-20 vehicles)...........................          64,836          22,757,436            9.83           18.48
4 (21-100 vehicles).........................          19,627          24,023,448            2.98           19.51
5 (101-1000 vehicles).......................           3,416          19,932,360            0.52           16.19
6 (1001 or more vehicles)...................             214          12,193,078            0.03            9.90
                                             -------------------------------------------------------------------
    Totals..................................         659,449         123,129,829
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                                             2020 Registration Year
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                                              Number of fee-                       Percentage of
               UCR fee bracket                    paying       Total fee revenue    fee-paying     Percentage of
                                                registrants                         registrants     fee revenue
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1 (0-2 vehicles)............................         376,868         $22,235,212           69.13           19.37
2 (3-5 vehicles)............................          83,211          14,645,136           15.26           12.76
3 (6-20 vehicles)...........................          62,589          21,968,739           11.48           19.14
4 (21-100 vehicles).........................          18,810          23,023,440            3.45           20.05
5 (101-1000 vehicles).......................           3,466          20,224,110            0.64           17.62
6 (1001 or more vehicles)...................             223          12,705,871            0.04           11.07
                                             -------------------------------------------------------------------
    Totals..................................         545,167         114,802,508
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    As shown in the discussion and analysis above, the fee structure 
satisfies the statutory requirement that it be progressive. The fees 
increase as the carriers' fleet sizes increase, and the fee amounts 
place a proportionally larger burden on those carriers with larger 
fleets that are more likely to be able to pay the fees.\10\
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    \10\ This table is based on information provided by the UCR Plan 
in the IR to FMCSA's RFI, at p. 17 and Tab I. The request and the 
response have been posted in the docket.
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b. Timing of Fee Adjustments and the Meaning of ``Fee Year''
    Comment: OOIDA contends that the fee adjustment is contrary to the 
statute (specifically 49 U.S.C. 14504a(f)(1)(E)(ii)) because, under the 
adopted procedures, excess funds are used to adjust the fees in 
alternating calendar years (with a one calendar year gap). For example, 
under the UCR Plan Board's policy, excess funds collected for 2021 
registrations are used to adjust the fees in 2023 and fees collected 
for 2022 registrations will be used to adjust fees for 2024. OOIDA 
states that the statute requires excess fee collections be used to 
reduce the fee charged in the next calendar year.
    Response: The statute is ambiguous because of its use of the term 
``next fee year'' in section 14504a(h)(4). In FMCSA's view, the statute 
allows an interpretation of the required timing for using excess funds 
to adjust the UCR Agreement fees. The UCR Plan's procedures, adopted by 
the UCR Plan Board, properly establish a 2-calendar year cycle for each 
``fee year.'' As OOIDA points out,\11\ the UCR statute provides that 
excess funds must be used to reduce the fees charged in the next ``fee 
year.'' 49 U.S.C. 14504a(h)(4). The term ``fee year'' is used only in 
that one instance and is undefined by the statute. Again, without 
definition, the statute uses the term ``calendar year'' in two 
instances: once for the limited purpose of defining commercial motor 
vehicle during calendar years 2008 and 2009, 49 U.S.C. 
14504a(a)(1)(A)(i), and the second, for setting forth the allocation of

[[Page 53685]]

fee payments under the new UCR Agreement structure, 49 U.S.C. 
14504a(g)(2). In five instances, the statute refers to ``registration 
year'' to explain the counting of the number of CMVs for registration 
purposes, (49 U.S.C. 14504a(f)(2), (3)), and setting the allocation of 
fee payments under the new UCR Agreement structure, (49 U.S.C. 
14504a(g)(1), (3)). Once more, the statute does not define 
``registration year.'' The use of various terms throughout the statute 
suggests nuance between the three, and that the terms are not 
unambiguously the same.
---------------------------------------------------------------------------

    \11\ OOIDA's First Comment, p. 5.
---------------------------------------------------------------------------

    The implemented ``fee year'' timeline is explained by the UCR Plan 
Board in both its Information Response \12\ and the UCR Plan's Fee 
Recommendation Policy,\13\ which was adopted by the UCR Plan Board on 
August 13, 2020, and revised on June 8, 2021. The Agency again notes 
that an OOIDA representative is a member of the UCR Plan Board and was 
present at the Board meetings when the Fee Recommendation Policy was 
adopted and revised. While phrased differently in different places, in 
practice, the registration year aligns with the calendar year for that 
registration. However, the ``administrative period'' during which fees 
are collected (in other words, the ``fee year'') spans more than two 
calendar years. The ``fee year'' begins on October 1 of the year prior 
to the ``registration year,'' continues through the calendar year that 
is the ``registration year,'' concluding on December 31 of the year 
after the ``registration year.'' This timeline provides a 3-month pre-
registration window before the date on which the fees are due (which is 
January 1 of the ``registration year''), as well as an audit and 
dispute resolution period in the calendar year following the 
registration year. Moreover, this timeline ensures sufficient fee 
collection data to reasonably and accurately determine whether fee 
reductions or increases are necessary.\14\ The timeline also provides a 
steady and consistent framework for the UCR Plan Board to calculate and 
submit a fee adjustment recommendation supported by accurate data to 
the Secretary, and for FMCSA to conduct the statutorily required 
notice-and-comment rulemaking and then publish a final rule setting the 
new fees sufficiently in advance of the start of the applicable fee 
year.\15\ In OOIDA's Second Comment (which is addressed at length 
below), it continues to miss the distinction between calendar year and 
fee year even while citing the UCR Plan's clear explanation of the 
timeline, and practical reasons of time and data collection that led to 
the distinction.\16\
---------------------------------------------------------------------------

    \12\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, titled ``Response 
of the Unified Carrier Registration Plan'', p. 5.
    \13\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0020, Tab K.
    \14\ Information Response, Docket No. 2022-FMCSA-0001-0010 at 5-
6, and Tab K.
    \15\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, titled ``Response 
of the Unified Carrier Registration Plan'', p. 5-6, tab K.
    \16\ OOIDA's Second comment, https://www.regulations.gov/comment/FMCSA-2022-0001-0113, p. 12.
---------------------------------------------------------------------------

    Further, in its Second Comment, OOIDA resumed questioning the 
validity of the ``fee year'' structure adopted by the UCR Plan 
Board.\17\ OOIDA again argued that the fee schedule does not comply 
with the statute and quoted at length from the IR wherein the UCR Plan 
Board explained the need for ``sufficient data'' on the actual revenues 
collected to be able to make a reasonable projection of the excess 
revenues for the registration year at the end of the fee year.\18\ 
OOIDA then argued that the record held no data on when in a calendar 
year sufficient registration data would be available to determine 
future fees with reasonable accuracy.\19\ While OOIDA raises an 
interesting idea, that perhaps sufficient data to make excess revenue 
projections is available earlier in the year, which in turn might 
enable a faster timeline for fee setting, OOIDA undermines its own 
argument by pointing out there is no data on that very point.\20\ 
Although OOIDA states that it was ``not proposing that the UCR Plan 
adopt any specific procedures that might best comply with the 
statute,'' it speculates that ``one can easily envision collection and 
accounting standards that would better serve the statute's 
requirements.'' \21\ As a member of the UCR Plan Board, OOIDA's comment 
rings hollow. Members of the UCR Plan Board are responsible for 
implementing the UCR Agreement in accordance with the statute. There 
are challenges to developing, implementing, and administering any 
program; that does not excuse members of the Board from speaking up 
when possible problems are identified and then working to develop, 
offer, and implement solutions.
---------------------------------------------------------------------------

    \17\ OOIDA's Second comment, p. 6-8.
    \18\ OOIDA's Second comment, p. 7.
    \19\ OOIDA's Second comment, p. 7.
    \20\ OOIDA's Second comment, p. 7.
    \21\ OOIDA's Second comment, p. 8.
---------------------------------------------------------------------------

    FMCSA concludes that the UCR Plan's alternating calendar-year fee 
adjustment schedule, which OOIDA contests, does comply with a 
reasonable interpretation of all the statutory requirements. The 
requirement to adjust fees in the next ``fee year'' in section 
14504a(h)(4) must be read together with the provisions of sections 
14504a(d)(7) and 14504a(f)(1)(E)(ii). Those paragraphs provide the UCR 
Plan and the Agency the opportunity, and, indeed the obligation, to 
adopt and implement a statutory interpretation that reflects the unique 
circumstances of the administration of the UCR Agreement.
3. Proper Use of Revenue
a. Reserve Accounts Are an Appropriate Means of Administering the UCR 
Agreement and Are Not Excess Funds
    Comment: OOIDA claims that the UCR Plan is ``not authorized'' by 
either the statute or the UCR Handbook to establish financial reserve 
accounts and allocate funds to such accounts. It claims that the UCR 
Plan needs specific authorization to establish and maintain such 
reserve accounts. As a corollary to this contention, OOIDA claims that 
the funds allocated by the UCR Plan to the reserve accounts over the 
past several years should be considered excess funds and instead be 
applied to adjust the fees.
    Response: The statute provides that the UCR Plan is the 
organization of State, Federal, and industry representatives 
responsible for developing, implementing, and administering the unified 
carrier registration agreement. 49 U.S.C. 14504a(a)(9). It also 
includes specific authority to provide for the administration of the 
UCR Agreement (established by 49 U.S.C. 14504(a)(8), (9)) by adopting 
rules and regulations. 49 U.S.C. 14504a(d)(2)(B). In addition, the UCR 
Plan Board is authorized to include in the structure of the fees 
charged to motor carriers, freight forwarders, brokers, and leasing 
companies an amount to pay the costs of administering the UCR 
Agreement. (49 U.S.C. 14504a(d)(7)(A)(i)). Accordingly, within the 
scope of the UCR Plan's statutory responsibility to administer the UCR 
Agreement is the need to adopt and apply appropriate policies and 
procedures to manage the funds collected by the UCR Plan that are then 
distributed both to the participating States and to the UCR Plan to be 
applied to the administrative costs of carrying out the UCR Agreement. 
However, a quirk of the statute states that revenues collected may not 
be used to pay administrative costs until all the participating States 
have received all their revenue entitlements. 49 U.S.C. 
14504a(h)(3)(B). As a practical matter, during a registration year, no 
funds

[[Page 53686]]

collected can be used for current operations of the UCR Plan in 
administering the UCR Agreement until all the distributions have been 
made from the depository to the States that have not achieved their 
revenue entitlements. As a result of complying with this statutory 
requirement, at the beginning of each year's operations, the Plan is 
not receiving any funds budgeted for the administration of the UCR 
Agreement and cannot carry out its statutory obligations unless funds 
are available and held elsewhere.
    In order to administer the Agreement and to address this situation, 
at a meeting of the Board of Directors on December 14, 2017, the UCR 
Plan adopted a financial reserve policy, effective on January 1, 2018, 
to sustain financial operations in the unanticipated event of 
significant unbudgeted increases in operating expenses and/or losses in 
operating revenues.\22\ The financial reserve policy was adopted 
without objection or negative vote from any member of the Board, 
including all industry members and the representative from OOIDA. With 
regard to administrative costs, the policy provides for: (1) a 
liquidity reserve to address the lack of operating cash flow from fee 
collections during the registration period while all revenues are 
retained by or distributed to the participating States; (2) a reserve 
to address a shortfall in fee collections such that the participating 
States do not receive their revenue entitlements in full and the UCR 
Plan does not receive any funds for its administrative costs; and (3) a 
special or capital projects reserve to support future large capital 
projects.\23\ The liquidity reserve is limited to the current year's 
operating budget for administrative costs. The reserve for any 
shortfall in revenues is limited to the operating budget for the next 
two years. Funding for the capital projects reserve requires a majority 
vote at a meeting of the UCR Plan Board and is limited to one-half of 
any year's operating budget.
---------------------------------------------------------------------------

    \22\ Available in the docket for this rulemaking at https://www.regulations.gov/document/FMCSA-2022-0001-0010, Tab 1. The 
minutes of the December 14, 2017, meeting are available on the UCR 
Plan's website and have also been posted in the docket.
    \23\ The UCR Plan Board also later adopted an insurance reserve 
to provide contingency funds for the self-insurance plan for its 
officers and directors. See minutes of UCR Plan Board meeting of 
December 10, 2020, available in the docket for this rulemaking.
---------------------------------------------------------------------------

    The funds held in the reserve accounts by the UCR Plan are set out 
in the table below. The data are derived from the UCR Plan's statements 
of financial position provided in the IR at Tabs A, B, and C.

----------------------------------------------------------------------------------------------------------------
                       Reserve name                           Dec. 31, 2020     Dec. 31, 2021     Feb. 28, 2022
----------------------------------------------------------------------------------------------------------------
Capital...................................................                $0          $288,575          $288,575
Unbudgeted Expense........................................         2,500,000         1,750,000         1,750,000
Financial.................................................        12,000,000        12,000,000        12,000,000
Insurance.................................................                 0         1,750,000         1,750,000
                                                           -----------------------------------------------------
    Totals................................................        14,500,000        15,788,575        15,788,575
----------------------------------------------------------------------------------------------------------------

    These reserve funds are a portion of unrestricted net assets of the 
UCR Plan that are available for use in emergencies to sustain financial 
operations in the unanticipated event of significant unbudgeted 
increases in operating expenses and/or losses in operating revenues. 
FMCSA finds that this is a prudent and reasonable use of the funds 
available to the UCR Plan to prepare for and meet potential future 
events. This is especially appropriate considering that due to planned 
repeated reductions in fees, there is an increasing possibility that in 
upcoming years there may be a shortfall in the fee revenues. (February 
2022 Updated Fee Recommendation at 2.)
    Ensuring the availability of reserve funds to meet possible 
contingencies is an appropriate action for the UCR Plan Board to take 
in implementing the statute. As FMCSA found in the 2010 final rule that 
its responsibilities under 49 U.S.C. 14504a in setting fees for the UCR 
Plan and Agreement are guided by the primacy the statute places on the 
need both to set and to adjust the fees so that they ``provide the 
revenues to which the States are entitled.'' The statute links the 
requirement that the fees be adjusted ``within a reasonable range'' to 
the provision of sufficient revenues to meet the entitlements of the 
participating States (49 U.S.C. 14504a(f)(1)(E); see also 49 U.S.C. 
14504a(d)(7)(A)(ii)). (Fees for United Carrier Registration Plan and 
Agreement, 75 FR 21993 (Apr. 27, 2010) at 21995.)
    Because the allocation of funds to reserve accounts by the UCR Plan 
Board is proper, these funds are not available for adjustment of the 
fees in accordance with the statute. The statute provides that the UCR 
Plan Board and FMCSA shall consider whether the revenues generated in 
the previous fee year and any surplus or shortage from that or prior 
years enable the participating States to achieve in future registration 
years the revenue levels set by the UCR Plan Board. (49 U.S.C. 
14504a(d)(7)(A)(ii)). As the Plan explained in the Information Response 
(at 4, note 2):

    The amounts [in reserve accounts] are part of what the Board 
holds in reserve to cover the Plan's administrative costs for up to 
three registration years. As explained in the Plan's January 1, 2018 
Reserve Fund Policy . . . these administrative reserves (1) provide 
liquidity to the Plan during the current registration year (since, 
under the Unified Carrier Registration Act, participating states 
must receive their revenue entitlements in full before any collected 
fees are used to pay the Plan's administrative costs, 49 U.S.C. 
14504a(h)(3)); and (2) safeguard against the contingency that the 
Plan's collection of fees for a given registration year under the 
extant fee schedule produces a revenue shortfall (i.e., collections 
do not exceed the total revenue entitlement for participating 
states), which means that the Plan receives no funds to cover its 
administrative costs for that year, and the Board can rectify the 
problem only by recommending that the Agency increase the fees in a 
future registration year.

    The funds allocated to the reserve accounts, as part of the 
administrative costs of administering the UCR Agreement, are not 
available for reducing the fees, as the UCR Plan correctly states. (49 
U.S.C. 14504a(h)(3)(B)). The reserved funds are not ``excess funds'' 
within the meaning of section 14504a(h)(4). OOIDA's assertion that the 
funds in the reserve accounts are excess funds to be used to reduce the 
fees is therefore without merit.
b. Lawfulness and Oversight of UCR Plan and UCR Plan Board Expenses
    Comment: OOIDA also challenged the lawfulness of the proposed fees 
for the 2023 registration year because, it argued, the UCR Plan Board 
has authorized excessive administrative expenses, has improperly 
expended money engaging in enforcement activities, and has unfairly 
focused on

[[Page 53687]]

enforcement on motor carriers. As examples of unlawful administrative 
expenses, OOIDA cited the use of outside contractors to aid in carrying 
out the UCR Agreement, to support in-person meetings of the UCR Plan 
Board, and for other expenses. In support of the claim that the UCR 
Plan Board has improperly expended funds on enforcement efforts, OOIDA 
asserted that the UCR Plan Board's authority is limited to 
administering funds collected and distributed to states under the UCR 
statute. OOIDA further asserted that the Board has no authority to 
write rules, conduct enforcement related activities, or spend UCR fee 
revenues to improve enforcement. OOIDA also contended that only the 
States may engage in any enforcement efforts, and that such effort is 
allowed by the UCR statute, but not required. OOIDA asserted that to 
comply with the UCR statute, FMCSA must review the appropriateness of 
UCR administrative expenses before approving updated UCR Agreement 
fees.
    Response: FMCSA agrees with OOIDA that the Agency can consider the 
appropriateness of the costs incurred by the UCR Plan Board. Section 
14504a(d)(7)(A)(i) explicitly states that the UCR Plan Board and the 
Secretary must consider the administrative costs of the UCR Plan and 
UCR Agreement in setting the fee level. However, the Agency has no 
evidence that any of the costs identified by OOIDA are improper or fall 
outside the bounds authorized by the UCR statute.
    Preliminarily, OOIDA's comment misunderstands or misstates the 
authorities granted and reserved in the UCR statute. The statute 
provides that the UCR Plan is responsible for developing, implementing, 
and administering the UCR Agreement. (49 U.S.C. 14504a(a)(9)). The UCR 
Agreement is the agreement developed by the UCR Plan for governing the 
collection and distribution of fees paid, registration, and financial 
responsibility information by regulated entities. (49 U.S.C. 
14504a(a)(8)). Reading its requirements together, the UCR statute 
establishes a framework that presumes compliance via the payment of 
fees and efforts at ensuring compliance. (49 U.S.C. 14504a(f)(4)). 
Contrary to OOIDA's assertion that the UCR Plan Board's authority to 
issue rules and regulations is expressly limited by the statute, the 
provision OOIDA cited instead directs items for which the UCR Plan must 
issue rules and regulations. (49 U.S.C. 14504a(d)(2)). The statute says 
the UCR Plan Board ``shall'' issue rules and regulations to govern the 
UCR Agreement and that those rules and regulations ``shall'' include 
the items that follow. (49 U.S.C. 14504a(d)(2)). The rules and 
regulations the UCR Plan Board must issue include providing for the 
administration, in other words, the functioning, carrying out, or 
operation, of the UCR Agreement. (49 U.S.C. 14504a(d)(2)(B)). This 
explicitly includes procedures for amending the UCR Agreement and 
obtaining clarification of any provision of the UCR Agreement but does 
not preclude or prohibit other rules or regulations that ``provide for 
the administration'' of the UCR Agreement. (49 U.S.C. 14504a(d)(2)(B)).
    The additional enforcement provisions in section 14504a(i) relate 
to specific legal mechanisms and proceedings by other governmental 
entities to enforce the UCR Agreement but have no impact on efforts by 
the UCR Plan and the UCR Plan Board to ensure, or improve, compliance 
with the UCR Agreement, which is required by statute. Indeed, ensuring 
and improving compliance fall squarely within the purpose of the UCR 
Agreement and the responsibilities of the UCR Plan Board. Moreover, 
contrary to the assertion that section 14504a(i)(4) reserves 
enforcement solely to the participating States, section 14504a(i) 
begins by explicitly providing for civil lawsuits to be brought by the 
Attorney General of the United States to compel compliance. The 
provision OOIDA cites regarding State enforcement authority simply 
makes clear that State enforcement jurisdiction is not precluded by 
such Federal jurisdiction and the UCR statute. This provision does not 
preclude the UCR Plan from assisting the participating 41 States in 
improving compliance with the requirements of the UCR statute and the 
UCR Agreement.
    FMCSA agrees that much of the enforcement programing by the States 
has been focused on motor carriers. However, that does not inherently 
make it unfair. Motor carriers make up the vast majority of potential 
fee-payors in the UCR Agreement. It is not unreasonable that the UCR 
Plan and UCR Plan Board would first target compliance efforts at the 
largest group. As evidence of alleged unfair enforcement efforts 
directed at motor carriers OOIDA pointed to a report to the UCR Plan 
Board about the efforts to increase State UCR enforcement.\24\ To gain 
a fuller picture, in the RFI questions the Agency requested information 
about all enforcement initiative proposals received by the UCR Plan or 
UCR Plan Board since the start of 2020.\25\ In response, the UCR Plan 
provided details on four enforcement proposals: (1) adding an Auditor/
Enforcement Manager position, proposed by the UCR Plan Board Audit 
Chairperson; (2) mailing postcards to unregistered motor carriers, 
proposed by the UCR Plan Executive Director; (3) engaging a contractor 
to conduct three pilot programs targeting unregistered- and new-entrant 
motor carriers domiciled in non-participating States and roadside 
violations audits, proposed by the UCR Plan Executive Director and the 
outside contractor; and (4) developing, hosting, and maintaining a 
centralized International Registration Plan (IRP) fee calculator, 
proposed by the UCR Plan Executive Director.\26\ The first three 
proposals were discussed at UCR Plan Board meetings and adopted. The 
fourth proposal was discussed at a UCR Plan Board meeting, and approval 
was given to engage in discussions with the IRP (which rejected the 
idea).\27\ The UCR Plan noted in its response that the only mechanism 
for receiving suggestions and proposals is through the diverse UCR Plan 
Board membership and the UCR Plan itself.\28\ The UCR Plan has no 
employees and is staffed by contractors engaged by the UCR Plan Board 
under its statutory authority.
---------------------------------------------------------------------------

    \24\ Exhibit 1 of the first OOIDA comment available at https://www.regulations.gov/comment/FMCSA-2022-0001-0008.
    \25\ See FMCSA RFI, Q9.
    \26\ The Second UCR Plan Board response available at https://www.regulations.gov/comment/FMCSA-2022-0001-0116 on p. 27-30 (Q9).
    \27\ The UCR Plan Board RFI response available at https://www.regulations.gov/comment/FMCSA-2022-0001-0116 on p. 27-30 (Q9), 
and OOIDA's June 28 comment available at https://www.regulations.gov/comment/FMCSA-2022-0001-0113, p. 18-19.
    \28\ UCR Plan RFI Response, p. 27 (Q9).
---------------------------------------------------------------------------

    In response, OOIDA complained that the UCR Plan had not provided a 
complete response and proceeded to list five items that were all non-
responsive to FMCSA's original RFI question, which sought information 
on proposals or suggestions submitted to the UCR Plan.\29\ In the one 
item close to on-point, OOIDA raised concerns that the UCR Plan and UCR 
Plan Board were consistently not doing enough to enforce UCR fee 
compliance by brokers, freight forwarders, and leasing companies, and 
OOIDA even provided exhibits of emails and meeting minutes as evidence 
that its concerns were being deliberately ignored.\30\ Contrary to 
OOIDA's assertion of being ignored, however, the email chain shows 
other UCR Plan Board members and FMCSA working together to answer 
questions and attempt to identify the root of the problem of non-
compliance by these

[[Page 53688]]

non-motor carrier entities.\31\ A significant number of new brokers 
have entered the industry in the last few years. But brokers do not 
operate CMVs and are therefore not subject to roadside inspections that 
would disclose whether they have paid UCR fees. The most recent data 
from FMCSA and the UCR Plan shows that there are 24.615 active brokers 
registered at FMCSA, compared to the 22,508 mentioned in OOIDA's First 
Comment. FMCSA appreciates the difficulties that the UCR Plan has 
experienced in obtaining compliance by the significant number of 
brokers that have entered the industry recently. In any event, the 
impact of non-compliance by brokers is minimal. Even if all of the 
15,538 non-compliant active brokers paid the established fees in either 
2022 or during the upcoming 2023 registration year, the revenue 
contributed would be less than 1 percent.\32\ The UCR Plan Board has 
approved several initiatives presented by its contractors to assist the 
States in improving compliance by the large number of new brokers, and 
FMCSA expects that these efforts to improve compliance by brokers with 
be successful.
---------------------------------------------------------------------------

    \29\ OOIDA's Second comment, p. 15-17.
    \30\ OOIDA's Second comment, p. 16, Ex. A.
    \31\ OOIDA's 28Second comment, p. 16, Ex. A.
    \32\ This analysis is based on data presented to the UCR Plan 
Board at a meeting on August 11, 2022. When this data is made 
available in the minutes of the meeting, it will be added to the 
docket.
---------------------------------------------------------------------------

    However, while OOIDA notes that enforcement towards brokers, 
freight forwarders, and leasing companies would ``require some 
creativity, careful thought, and actual effort, since enforcement of 
these entities cannot be carried out via roadside inspections,'' the 
record provides no evidence that OOIDA has offered any proposals or 
suggestions for pilots or programs that could provide a solution. OOIDA 
concludes the section complaining about the pilots and initiatives 
undertaken by the UCR Plan Board and assails the Plan's Executive 
Director for improperly engaging in enforcement efforts. FMCSA notes 
that not all pilot programs will be successful but are tests, to try 
something new and see if it works. Upon the available record, the 
efforts of the UCR Plan's Executive Director might more accurately be 
viewed as those of an engaged organizational leader researching and 
developing potential solutions and presenting solution proposals to the 
Board of Directors, which oversees the UCR Plan's work and has the 
authority to remove him should he fail to adequately achieve the 
Board's goals.
    The Agency notes that OOIDA objects that insufficient enforcement 
efforts are targeted at brokers, freight forwarders, and leasing 
companies, yet OOIDA (unlike other industry members of the UCR Plan 
Board) did not support initiatives intended to improve compliance among 
this group.\33\ Further, based on the information provided by both 
OOIDA and the UCR Plan, OOIDA has not offered specific solutions, pilot 
programs, or projects to address the issue that all parties seem to 
agree is a problem.\34\ FMCSA does not see any improper expenditures of 
funds for enforcement activities in any of the materials submitted, nor 
any contravention of the UCR statute on such matters. The Agency also 
observes that OOIDA inconsistently objects to the UCR Plan's use of 
administrative funds to support efforts by the participating States to 
enforce compliance with registration requirements while simultaneously 
complaining about the alleged lack of such compliance.
---------------------------------------------------------------------------

    \33\ OOIDA's Second comment, p. 16, Ex. A, Ex. B.
    \34\ OOIDA's Second comment, p. 16, Ex. A, Ex. B.
---------------------------------------------------------------------------

    Elsewhere OOIDA expressed concern that fees are too high because of 
insufficient compliance and enforcement, but the association also 
objected to the Plan's efforts to improve UCR Agreement compliance 
through education and training by UCR contractors. OODIA cannot have it 
both ways. The UCR statute explicitly authorizes the UCR Plan Board to 
``contract with any person or any agency of a State to perform 
administrative functions required under the unified carrier 
registration agreement.'' (49 U.S.C. 14504a(d)(6)). The programs 
administered by all of the UCR contractors, including the operator of 
the online national registration system, have been implemented on 
behalf of, and at the direction of, the UCR Plan Board, and will result 
in greater fee-paying compliance generally. As more revenues are 
collected due to increased compliance, future UCR fees will be further 
reduced. Indeed, the 2010 final rule set targets for compliance by the 
States in order to justify the increased fees adopted. (75 FR 21993 at 
22003).
    It is also important to recognize that 100 percent compliance is 
not feasible for motor carriers and other entities such as brokers and 
freight forwarders, as FMCSA recognized in the 2010 final rule. The fee 
structure and fee levels were established in that final rule based on a 
compliance rate of 86.42 percent. (75 FR at 21997) The UCR Plan's 
support of the enforcement efforts by the States is an important 
element for ensuring compliance with the registration and fee payment 
requirements set out in the statute.
    Finally, OOIDA asserted in its comment that certain UCR Plan Board 
spending is inappropriate. Specifically, OOIDA objects to UCR Plan 
Board members' travel to Board meetings in different locations and 
other efforts to increase awareness in the industry (such as hats and 
shirts bearing the UCR logo) and the States (particularly the 10 non-
participating jurisdictions) about the Plan and the registration 
requirements imposed by the statute. The UCR statute specifies that the 
UCR Plan Board must meet at least once per year, and additional 
meetings may be called by the Board's Chairperson, a majority of the 
directors, or the Secretary. (49 U.S.C. 14504a(d)(4)). The UCR statute 
further explicitly requires that all directors on the UCR Plan Board be 
reimbursed for those travel expenses. (49 U.S.C. 14504a(d)(3)(B)). 
OOIDA submitted a copy of the UCR Plan Board's proposed meeting 
schedule for 2022 seemingly to show the misuse of UCR Agreement 
money.\35\ However, the planned schedule showed three planned Board 
meetings by teleconference and five at locations around the country. 
Similarly, subcommittee meetings were planned throughout 2022, with 
eleven scheduled via teleconference and seven in-person around the 
country (two of which were in conjunction with full UCR Plan Board 
meetings in the same location). The Agency is mindful that open public 
meetings held at different locations around the country provide an 
opportunity to increase awareness of the UCR Plan and its activities, 
and to enhance State enforcement with on-site training. These are 
common practices for national groups with geographically disbursed 
membership, and OOIDA has provided no data to support a decision that 
these expenditures are improper, excessive, or beyond the authority 
explicitly granted in the UCR statute. Indeed, the statute expressly 
provides that, even though board members do not receive any 
compensation from the U.S. government, board members and subcommittee 
members are reimbursed for travel expenses. (49 U.S.C. 14504a(d)(3)). 
This clearly indicates that in-person meetings at convenient locations 
are contemplated by the statute for all board members, including the 
OOIDA representative.
---------------------------------------------------------------------------

    \35\ OOIDA's First Comment, Ex. K. In any event, FMCSA 
understands that the UCR Plan is reducing the number of planned in-
person meetings for 2023.
---------------------------------------------------------------------------

    In OOIDA's Second Comment it explicitly challenged, for the first 
time, the proposed $250,000 UCR Plan budget increase contained in both 
the UCR Plan Board's August 2021 Fee Recommendation and February 2022

[[Page 53689]]

Updated Fee Recommendation, and it challenged the UCR Plan Board's 
description of ``cost escalations of various vendors'' as 
``questionable.'' \36\ In calling this budget increase request into 
question OOIDA noted that the UCR Plan has not fully used its 
authorized budget in recent years. However, the Agency cannot ignore 
the recent inflation occurring in the U.S. and global economy.\37\ The 
reason provided for the requested increase is anticipated increased 
costs. Particularly given the high inflation rates earlier this year, 
nothing in the record credibly calls into question the UCR Plan Board's 
request for additional funds due to anticipated increased costs in the 
next registration year. Moreover, the most recent allowance of 
administrative costs of $4,000,000 is a significant reduction from the 
$5,000,000 allowance initially approved in 2007. See Fees for Unified 
Carrier Registration Plan and Agreement, 72 FR 48585, 48587 (Aug 24, 
2007) (adopting proposal from NPRM, 72 FR 29472, 29474 (May 29, 2007)). 
In setting the UCR fees, the Secretary is required by statute to 
consider the costs associated with administering the UCR Plan and UCR 
Agreement and upon this record has determined that the proposed UCR 
Plan budget increase of $250,000, or 6.25 percent, is appropriate and 
lawful.
---------------------------------------------------------------------------

    \36\ OOIDA's Second comment, p. 11.
    \37\ https://www.washingtonpost.com/business/2022/07/13/inflation-june-cpi/.
---------------------------------------------------------------------------

    FMCSA has reviewed the appropriateness of the expenses authorized 
by the UCR Plan Board and questioned by OOIDA, as well as the requested 
increase in funds for the upcoming registration year. Upon this review, 
the Agency finds no evidence that the expenditures and requested budget 
increase exceed the authority established in the UCR statute.
    Finally, the Agency must address OOIDA's contentions regarding 
contractors working for the UCR Plan Board and the UCR Plan's Executive 
Director. The statute explicitly allows the UCR Plan Board, upon which 
a representative of OOIDA sits, to enter into contracts with any person 
or State agency to carry out administrative functions under the UCR 
Agreement, so long as the UCR Plan Board retains its decision or 
policy-making responsibilities. (49 U.S.C. 14504a(d)(6)). OOIDA 
inaccurately accused the UCR Plan Executive Director of improperly 
answering the Agency's RFI questions on behalf of the UCR Plan Board. 
The UCR Plan submitted an additional comment on July 11, 2022, that 
fully explained the Executive Director's role in submitting the 
Information Response requested by FMCSA:

    The preparation of the responses was thus purely an 
administrative task for the Plan, appropriately delegated to and 
overseen by . . . the Executive Director. The responses referred 
back to and supported the Board's August 26, 2021 and February 22, 
2022 fee change recommendations to the Agency; they did not change 
those recommendations in any way. The responses also referred the 
Agency to policies that the Board had duly voted on and passed 
(i.e., the January 1, 2018 Reserve Fund Policy and the June 8, 2021 
Fee Change Recommendation Policy, (Docket ID FMCSA-2022-0001-0010, 
at Tabs I and K, respectively)); they did not articulate or rely on 
any new or updated policy that would have required Board approval.

    As a member of the UCR Plan Board, OOIDA has the opportunity to 
engage in the oversight of the UCR Plan and the development, 
implementation, and administration of the UCR Agreement. However, OOIDA 
expressed concern that ``volunteer Board members do not have sufficient 
time to provide detailed oversight'' of the various contractors.\38\ 
FMCSA is unable to address these concerns, as the UCR statute 
establishes the structure wherein an unpaid Board of Directors 
implements and oversees the UCR Agreement and UCR Plan. (49 U.S.C. 
14504a(a)(8)-(9), (d)(3), (d)(7)). However, FMCSA urges all members of 
the UCR Plan Board to become knowledgeable about their individual and 
collective duties as members of the UCR Plan Board and to personally 
assess, periodically, whether they have the time and ability to fulfill 
those obligations.
---------------------------------------------------------------------------

    \38\ OOIDA's Second comment, p. 2.
---------------------------------------------------------------------------

4. Issues Beyond the Scope of This Rulemaking
    Comment: OOIDA commented about what it contends are FMCSA's past 
incorrect actions or inactions. OOIDA stated that FMCSA should have 
taken action to adjust the fees for 2021 and 2022.
    Response: These concerns, insofar as they might involve the fees 
that were in effect in 2021 and 2022 (as maintained in effect by 49 CFR 
367.60) are beyond the scope of this proceeding, which involves a 
recommended fee adjustment for 2023.

C. Reopening of Comment Period

    As discussed above, on March 22, 2022, FMCSA sent an RFI to the UCR 
Plan. On May 9, 2022, the UCR Plan provided an IR with the additional 
responsive information to FMCSA,\39\ which was posted to the public 
docket. Thereafter OOIDA requested an extension of the comment 
period,\40\ and on June 14, 2022, FMCSA announced the reopening of the 
public comment period in a Federal Register notice \41\ (87 FR 35941) 
with comments due June 28, 2022. FMCSA reopened the NPRM comment period 
for the limited purpose of allowing comments on the UCR Plan's IR (87 
FR 35940, June 14, 2022).
---------------------------------------------------------------------------

    \39\ The request and the response are available in the docket at 
https://www.regulations.gov/document/FMCSA-2022-0001-0010.
    \40\ Available in the docket at https://www.regulations.gov/document/FMCSA-2022-0001-0011.
    \41\ Available in the docket at https://www.regulations.gov/document/FMCSA-2022-0001-0012.
---------------------------------------------------------------------------

Comments During the Reopened Comment Period
    By the close of the reopened comment period on June 28, 2022, more 
than 100 comments were received, including OOIDA's Second Comment, and 
comments from the Western States Trucking Association. The UCR Plan 
Board submitted a late comment on July 11, responding to OOIDA's Second 
Comment, which FMCSA has considered, along with other submissions made 
after the comment period, in accordance with 49 CFR 5.5(a)(1). To the 
extent that comments OOIDA made in its Second Comment were directly 
relevant to the preceding discussion, those comments have already been 
addressed and will not be repeated here. The remaining issues in 
OOIDA's Second Comment are addressed below.
    Several of these comments contained similar language, and one 
included the full appeal an organization made to its members, which 
contained the language that was repeatedly submitted by other 
commenters. There were several identical comments submitted that were 
not germane to this rule, as they discussed or criticized the UCR Plan 
as a program and go far beyond the scope of the proposal at hand. Many, 
if not all such comments, were addressed to matters that would require 
a statutory change.
    OOIDA's Second Comment is far-ranging in scope, and the Agency has 
determined it would be useful to address the issues and concerns 
raised. Despite the objections voiced in OOIDA's Second Comment, the 
UCR Plan Board has complied with the law in providing the 2023 fee 
reduction recommendation. Further, many of the issues OOIDA raised in 
its Second Comment were out of scope for this comment period and, also, 
are not within FMCSA's authority to address under the UCR statute. In 
recurring objections to the UCR Plan Board's

[[Page 53690]]

proposed downward fee adjustment of nearly 31 percent, OOIDA's comment 
conveys significant criticisms of the UCR statute and OOIDA's 
displeasure with both the UCR Plan's business accounting practices, and 
the duties and time commitment involved with Board membership. Some of 
OOIDA's comments also indicate that it may not fully understand the 
legal obligations of volunteer members of a Board of Directors to 
collectively manage and conduct oversight of an organization. The 
Agency now addresses the issues raised in OOIDA's Second Comment.
    Comment: OOIDA complained that UCR Plan Executive Director did not 
address the legal arguments OOIDA made in its First Comment.
    Response: Again, this comment is out of scope. However, in this 
instance, the Agency has determined that a response is appropriate. 
OOIDA fails to recognize that FMCSA did not ask the UCR Plan to provide 
that information in the RFI questions. FMCSA only sought UCR Plan data 
and information that was factual and administrative in nature that 
would further enhance the administrative record for this rulemaking. 
Substantively, as discussed above regarding OOIDA's First Comment, the 
UCR Plan Board has adopted schedules and procedures that comply with 
the framework established by the UCR statute.
    Comment: OOIDA asserted that the UCR Fee adjustment is the 
government's only real oversight authority over the UCR Plan, without 
which, ``the administration of the UCR Plan is left entirely to its 
contractors.''
    Response: Again, this comment is out of scope. However, in this 
instance, the Agency has determined that a response is appropriate. It 
appears, through this comment, that OOIDA does not fully understand the 
role of the UCR Plan nor acknowledge or accept the authority and 
responsibility of the UCR Plan Board, upon which OOIDA holds a seat. By 
statute the UCR Plan Board may contract with individuals to carry out 
the work of the UCR Plan and underlying UCR Agreement, including 
administrative tasks. It is the statutory responsibility of the UCR 
Plan Board to conduct oversight of the UCR Plan and its contractors.
    Comment: OOIDA took issue with the Agency's 14-day re-opening of 
the comment period and noted the statutory timeline for FMCSA to 
publish the Fee Adjustment Final Rule is 90 days from receipt of the 
UCR Plan Board's recommendation.
    Response: Again, this comment is out of scope. However, it raises 
procedural issues, and, in this instance, the Agency has determined 
that a response is appropriate. FMCSA is aware of the statutory 
provision setting the deadline to issue fee adjustments following 
receipt of a UCR Plan Board recommendation. See 49 U.S.C. 14504a(d)(7). 
That provision requires notice and comment rulemaking and directs that 
fees be set within 90 days of receiving the Board's recommendation. See 
49 U.S.C. 14504a(d)(7)(B). FMCSA also recognizes that the UCR fee 
collection schedule, adopted and implemented by the UCR Plan Board and 
UCR Plan, is best administered if FMCSA's fee adjustment rulemaking is 
finalized sufficiently in advance of the opening of a new UCR fee 
collection window, or ``fee year,'' which opens October 1 of each year.
    FMCSA acknowledges that it was slow to initiate this rulemaking. 
FMCSA did not anticipate that, unlike previous UCR fee reduction 
rulemakings, this nearly 31 percent fee reduction would be contested 
and controversial. FMCSA is committed, whenever possible, to ensuring 
that UCR fees are finalized and published sufficiently in advance of 
the opening of the registration fee collection window to provide 
certainty to registrants, the UCR Plan Board, and the participating 
States that have statutory rights to UCR revenues.
    Comment: OOIDA reasserted its contention that the UCR Plan Board's 
adoption of policies establishing reserve funds exceeds the authority 
granted in the UCR statute. Further, OOIDA reasserted that the 
alternating year schedule for a UCR ``fee year'' violates the UCR 
statute.
    Response: Again, this comment is out of scope. However, in the 
interest of thoroughness, the Agency has determined that in this 
instance a response is appropriate. The Agency responds that both 
issues were previously raised in OOIDA's First Comment and 
substantively addressed by FMCSA above.
    Comment: In response to the UCR Plan's IR answers addressing 
FMCSA's RFI Questions 1 and 2, OOIDA reasserted the claim from its 
First Comment that the UCR Plan was improperly holding excess funds in 
violation of the UCR statute.
    Response: OOIDA's discussion of these UCR Plan responses restates 
arguments previously raised and does not provide new information. The 
comments do not enhance the Agency's understanding of the issue at 
hand. The issues raised regarding accounting, availability of funds for 
an adjustment in a specific fee year, and the legality of a reserve 
fund policy are all addressed above in response to OOIDA's First 
Comment, and nothing in OOIDA's Second Comment alters that analysis.
    Comment: In response to the UCR Plan's IR answers addressing 
FMCSA's RFI Question 3, OOIDA contests for the first time the UCR Plan 
Board's proposed budget increase of $250,000.00 for the UCR Plan. OOIDA 
also reiterates arguments it previously raised, and FMCSA has 
addressed, that contest the Board's authority to establish a ``fee 
year'' based on alternating calendar years.
    Response: OOIDA's objection to the requested UCR Plan budget 
increase is untimely. Nonetheless, FMCSA has addressed the argument 
substantively in the discussion above of OOIDA's First Comment 
regarding the ``Lawfulness and Oversight of UCR Plan and UCR Plan Board 
Expenses.'' Similarly, in Response to OOIDA's First Comment, FMCSA has 
already addressed the UCR Plan Board's authority to establish the 
alternating calendar year schedule for establishing ``fee years'' under 
the statute.
    Comment: In response to the UCR Plan's IR answers addressing 
FMCSA's RFI Question 4, OOIDA argued that the UCR Plan response did not 
follow FMCSA's directions to use plain language that could be 
understood by a non-technical audience.
    Response: OOIDA's comment is non-substantive, but for the sake of 
completeness, FMCSA will address it. The issues being discussed are 
technical in nature and require some technical language. However, to 
aid readers without technical training, FMCSA sought to obtain through 
RFI number four data, with a corresponding ``narrative explanation,'' 
to more clearly lay out what the UCR Plan Board was requesting and how 
the numbers and data supported that request. The Agency directed the 
UCR to avoid ``shorthand, abbreviations, or acronyms,'' as these queues 
may not be readily understood by those not active on the UCR Plan Board 
or employed in math-related fields. The UCR response satisfied the 
request to further explain the data in the Fee Calculations 
spreadsheet.
    Comment: In response to the UCR Plan's IR answers addressing 
FMCSA's RFI Question 5, OOIDA reiterated its contention that the UCR 
Plan Board cannot implement a ``fee year'' schedule that differs from a 
``calendar year.''
    Response: This comment is redundant with arguments made in OOIDA's 
First Comment. Accordingly, the Agency has substantively addressed it 
above in the response under the heading ``Timing of Fee Adjustments and 
the Meaning of ``Fee Year.''

[[Page 53691]]

    Comment: In response to the UCR Plan's IR answers addressing 
FMCSA's RFI Questions 6 and 7, OOIDA noted that the UCR Plan had 
already collected fees for the 2022 registration year that surpassed 
the revenue needed to fulfill the UCR Agreement's statutory 
obligations, and that the UCR Plan had provided the requested 
information.
    Response: In the sixth and seventh RFI questions, which sought 
revenues and registrants broken down by UCR Fee brackets, FMCSA sought 
to gather data to examine the claim in OOIDA's First Comment that the 
fees are not adequately ``progressive'' as required by statute. OOIDA 
did not recognize the Agency's effort on this point, as evidenced by 
OOIDA's (incorrect) assertion that the Agency did not seek information 
on this topic in the RFI. See OOIDA's Second Comment, pg. 22.
    To the extent these comments relate to the argument in OOIDA's 
First Comment, that the fees are not progressive as required by 
statute, the Agency has addressed the issue substantively above.
    Regarding OOIDA's assertion that the fees collected for the 2022 
registration year have already exceeded the UCR's statutory 
obligations, as discussed above, the UCR statute explicitly 
contemplates the possibility of overcollection of UCR fees and 
subsequent adjustments of fees in the next ``fee year,'' which has 
lawfully been established as the second, or alternating, calendar year.
    Comment: In response to the UCR Plan's IR answers addressing 
FMCSA's RFI Question 8, OOIDA contended that the data provided by the 
UCR Plan demonstrated the consistent under-enforcement of UCR fees 
against brokers, freight forwarders, and leasing companies, and 
resulted in ``indefensibly higher'' fees for motor carriers. The UCR 
Plan's IR response showed total freight forwarder and broker 
registrations for 2020 as 22,638, and for 2021 as 29,476. OOIDA next 
referred to its First Comment to say that there were 22,508 freight 
forwarders and brokers registered with the Agency in calendar year 2020 
(based on the date of emails in OOIDA's Ex. L). OOIDA again complained 
that enforcement efforts are unfairly focused on motor carriers.
    Response: According to the numbers provided, the UCR Plan collected 
fees from more than 100% of FMCSA's registered brokers and freight 
forwarders for calendar year 2020. This is clearly an issue that 
deserves further attention from all parties. However, the data and 
information provided does not support OOIDA's claim of egregious under-
compliance and under-enforcement of UCR fee payment by freight 
forwarders and brokers. FMCSA also notes that adding the numbers OOIDA 
cited (see OOIDA's First Comments, Ex. L) regarding freight forwarder 
and broker registrations produces a total of 22,587 registered 
entities, not 22,508 as OOIDA asserted.
    OOIDA's repeated complaint that enforcement efforts unfairly target 
motor carriers is addressed above in response to its First Comment.
    Comment: In response to the UCR Plan's IR answers addressing 
FMCSA's RFI Question 9, OOIDA asserted that the UCR Plan response was 
incomplete. OOIDA then provided a listing and discussion of items that 
it presumably believed were responsive to the question asked.
    Response: OOIDA's comment responding to the UCR Plan's response to 
the ninth RFI question was largely non-responsive but is otherwise 
addressed above in the section entitled ``Lawfulness and Oversight of 
UCR Plan and UCR Plan Board Expenses.'' In short, OOIDA complains that 
the UCR Plan unfairly focuses enforcement on motor carriers. Yet the 
available record does not show any meaningful efforts by OOIDA to use 
its position on the UCR Plan Board to suggest and advocate for pilots 
or programs to improve enforcement targeting non-MC registrants.
    Comment: OOIDA also raised, for the first time, the idea that the 
UCR Plan Board may not consider any matter unless it has first been 
considered by the Industry Advisory Subcommittee (IAS) and the IAS has 
provided a recommendation to the Board. OOIDA contended that any action 
by the UCR Plan Board that was not first considered by the IAS was 
contrary to law and thus invalid. OOIDA contends that the IAS had 
lapsed after the prior Chairperson stepped down, that the UCR fee 
adjustment recommendations had thus not been considered by the IAS, and 
therefore any fee adjustment would be unlawful. In support, OOIDA cited 
49 U.S.C. 14504a(d)(5)(A), which states that the UCR Plan Board must 
appoint an IAS and that the IAS ``shall consider any matter before the 
board and make recommendations to the board.'' 49 U.S.C. 
14504a(d)(5)(A). OOIDA further complained that every other UCR Plan 
Board subcommittee is statutorily required to have at least one member 
representing the motor carrier industry, 49 U.S.C. 14504a(d)(5)(D), but 
that in practice, this is not followed and, specifically, no motor 
carrier representative sat on the Audit Subcommittee during development 
of the 2023 fee proposal.
    Response: OOIDA's comment is out of scope for the second comment 
period. However, it raises issues of procedure and statutory authority, 
and, in this instance, the Agency has determined it is appropriate to 
address. OOIDA claimed for the first time that the industry advisory 
subcommittee authorized by 49 U.S.C. 14504a(d)(5)(A) has not considered 
the current fee adjustment. The statute, however, contains no express 
language prohibiting the UCR Plan Board from considering matters that 
have not first been considered by the IAS, and FMCSA does not infer 
congressional intent to create such a prohibition. The Plan Board is 
the principal governing body for implementation of the URC Agreement. 
The IAS is, by definition and statute, its subcommittee. Therefore a 
more logical inference of congressional intent, consistent with the 
ordinary functioning of subcommittees, is that through section 
14504a(d)(5)(A) Congress intended to restrict the universe of matters 
the subcommittee could consider to just those matters that come before 
the Plan Board. If the committee decides not to consider such a matter, 
or is unable to do so, the UCR Plan Board nevertheless may consider and 
act on the matter. During such consideration by the UCR Plan Board, the 
five industry members, including a member from OOIDA, have an 
opportunity to consider the matter and express the industry's views. 
Regarding composition of the other subcommittees and any absence of a 
motor carrier representative, the OOIDA representative and other 
members could have raised any issue about the activities of the IAS or 
other subcommittees during any board meeting.
    The statute explicitly directs the Chairperson to appoint an IAS. 
The statute also states that the chair of each subcommittee must be a 
director on the UCR Plan Board and that for the IAS, membership is 
reserved exclusively to representatives of entities that are required 
to pay the UCR fees. 49 U.S.C. 14504a(d)(5)(C), (D). For the IAS then, 
the chairperson must be one of the five directors representing the fee-
paying industry. This point was also highlighted in an exchange OOIDA 
provided in its Second Comment, that when OOIDA asked why the IAS had 
lapsed the response was that ``it hadn't'' but that the IAS's role had 
diminished since the former IAS chair retired--this was viewed as 
acceptable since everyone on the IAS was also already a member of the 
UCR Plan Board. It followed, then, that the IAS work was

[[Page 53692]]

simply occurring within the larger Board meetings. OOIDA finds this 
answer unsatisfactory, and so does the Agency. However, there is scant 
evidence in the record that any member of the UCR Plan Board or 
professional contractors identified this issue for some time. However, 
the failure of the IAS to be formally appointed, meet, consider matters 
before the UCR Plan Board and provide recommendations does not render 
all actions of the UCR Plan Board unlawful, as OOIDA suggested. The 
instructions that the IAS consider any matter before the UCR Plan Board 
is a directive to the IAS, spelling out its obligations to those who 
would hold a seat on that subcommittee. The alternative reading that 
OOIDA advocates would have the absurd result that the IAS could prevent 
the UCR Plan Board from taking action on any matter simply by declining 
to consider it. The statute does not state that the UCR Plan Board has 
an obligation to receive a recommendation from the IAS before acting. 
FMCSA does agree, however, that the IAS should be formally 
reconstituted and understands that this process has begun with the May 
19, 2022, initial organization meeting.
    FMCSA also agrees with OOIDA regarding the concern that the motor 
carrier industry is not consistently represented on all subcommittees. 
Consistent compliance with this statutory requirement would provide 
additional oversight on the UCR Plan activities. FMCSA believes it is 
appropriate for OOIDA and all other industry representatives on the 
Board to use their positions to ensure that such participation happens, 
whether by UCR directors representing the motor carrier industry or 
non-directors, as allowed by statute. (49 U.S.C. 14504a(d)(5)(C)). 
Again though, a mere opportunity for improved motor carrier 
representation on UCR subcommittees does not render actions of the Plan 
Board, including these proposed fee adjustments, unlawful or invalid.

VI. Changes From the NPRM

    The proposed fees in the NPRM are modified based upon the UCR Plan 
Board's updated recommendation submitted in its February 2022 Fee 
Recommendation. Instead of a fee reduction for the 2023 registration 
year of approximately 27 percent for all fee brackets, as proposed in 
the NPRM, this final rule adopts an even greater fee reduction of 
approximately 31 percent for all fee brackets. See the section-by-
section discussion below for additional detail.

VII. International Impacts

    Motor carriers and other entities involved in interstate and 
foreign transportation in the United States that do not have a 
principal office in the United States are nonetheless subject to the 
fees for the UCR Plan. They are required to designate a participating 
State as a base State and pay the appropriate fees to that State (49 
U.S.C. 14504a(a)(2)(B)(ii) and (f)(4)).

VIII. Final 2023 State UCR Revenue Entitlements and Revenue Targets

    The recommendation from the UCR Plan, as indicated above, is an 
adjustment from $4,000,000 to $4,250,000 for administrative costs, 
resulting in a total revenue target of $112,027,060. The adjustment is 
based on an analysis approved by the board of directors that indicated 
that legal expenses for the administration of the UCR Agreement will be 
higher on an ongoing basis. Therefore, in accordance with 49 U.S.C. 
14504a(d)(7) and (g)(4), FMCSA approves the following table of State 
revenue entitlements, administrative costs, and the total revenue 
target under the UCR Agreement, as proposed in the NPRM. These State 
revenue entitlements, the administrative costs, and the total revenue 
target will remain in effect for 2023 and subsequent years unless and 
until approval of a revision occurs.

   State UCR Revenue Entitlements and Final 2023 Total Revenue Target
------------------------------------------------------------------------
                                                         Total 2023 UCR
                         State                               revenue
                                                          entitlements
------------------------------------------------------------------------
Alabama...............................................     $2,939,964.00
Arkansas..............................................      1,817,360.00
California............................................      2,131,710.00
Colorado..............................................      1,801,615.00
Connecticut...........................................      3,129,840.00
Georgia...............................................      2,660,060.00
Idaho.................................................        547,696.68
Illinois..............................................      3,516,993.00
Indiana...............................................      2,364,879.00
Iowa..................................................        474,742.00
Kansas................................................      4,344,290.00
Kentucky..............................................      5,365,980.00
Louisiana.............................................      4,063,836.00
Maine.................................................      1,555,672.00
Massachusetts.........................................      2,282,887.00
Michigan..............................................      7,520,717.00
Minnesota.............................................      1,137,132.30
Missouri..............................................      2,342,000.00
Mississippi...........................................      4,322,100.00
Montana...............................................      1,049,063.00
Nebraska..............................................        741,974.00
New Hampshire.........................................      2,273,299.00
New Mexico............................................      3,292,233.00
New York..............................................      4,414,538.00
North Carolina........................................        372,007.00
North Dakota..........................................      2,010,434.00
Ohio..................................................      4,813,877.74
Oklahoma..............................................      2,457,796.00
Pennsylvania..........................................      4,945,527.00
Rhode Island..........................................      2,285,486.00
South Carolina........................................      2,420,120.00
South Dakota..........................................        855,623.00
Tennessee.............................................      4,759,329.00
Texas.................................................      2,718,628.06
Utah..................................................      2,098,408.00
Virginia..............................................      4,852,865.00
Washington............................................      2,467,971.00
West Virginia.........................................      1,431,727.03
Wisconsin.............................................      2,196,680.00
                                                       -----------------
    Subtotal..........................................    106,777,059.81
Alaska................................................        500,000.00
Delaware..............................................        500,000.00
                                                       -----------------
    Total State Revenue Entitlement...................    107,777,060.00
    Administrative Costs..............................      4,250,000.00
        Total Revenue Target..........................    112,027,060.00
------------------------------------------------------------------------

IX. Section-by-Section Analysis

    In this rule, FMCSA removes 49 CFR 367.20, 367.30, 367.40, and 
367.50. These sections established fees applicable for registration 
years from 2007 to and including 2019. The UCR Plan is no longer 
collecting fees for those registration years, and these sections are 
removed to avoid confusion or uncertainty about the applicable fees.
    FMCSA redesignates 49 CFR 367.60 as 49 CFR 367.20 and revises the 
provisions of that section (which were adopted in the 2020 final rule) 
so that the fees apply to registration years 2020, 2021, and 2022 only. 
A new 49 CFR 367.30 establishes new reduced fees applicable beginning 
in registration year 2023, based on the revised recommendation 
submitted by the UCR Plan Board in its February 2022 Updated Fee 
Recommendation, which it submitted as a comment to the public docket 
for the NPRM. These fees will remain in effect for subsequent 
registration years after 2023 unless revised by a future rulemaking. 
The fees in this section are lower than proposed in the NPRM in 
recognition of the updated recommendation submitted by the UCR Plan 
Board in its February 2022 Updated Fee Recommendation.

[[Page 53693]]

X. Regulatory Analyses

A. Executive Order (E.O.) 12866 (Regulatory Planning and Review), E.O. 
13563 (Improving Regulation and Regulatory Review), and DOT Regulatory 
Policies and Procedures

    FMCSA has considered the impact of this final rule under E.O. 12866 
(58 FR 51735, Oct. 4, 1993), Regulatory Planning and Review, E.O. 13563 
(76 FR 3821, Jan. 21, 2011), Improving Regulation and Regulatory 
Review, and DOT's regulatory policies and procedures. The Office of 
Information and Regulatory Affairs within OMB determined that this 
final rule is not a significant regulatory action under section 3(f) of 
E.O. 12866, as supplemented by E.O. 13563, and does not require an 
assessment of potential costs and benefits under section 6(a)(3) of 
that Order. Accordingly, OMB has not reviewed it under these Orders.
    The changes in this rule reduce the registration fees paid by motor 
carriers, motor private carriers of property, brokers, freight 
forwarders, and leasing companies to the UCR Plan and the participating 
States. While each motor carrier will realize a reduced burden, fees 
are considered by OMB Circular A-4, Regulatory Analysis as transfer 
payments, not costs. Transfer payments are payments from one group to 
another that do not affect total resources available to society. By 
definition, transfers are not considered in the monetization of 
societal costs and benefits of rulemakings.
    This rule reduces annual registration fees for the UCR Plan and 
Agreement. The entities affected by this rule are the participating 
States, motor carriers, motor private carriers of property, brokers, 
freight forwarders, and leasing companies, and the fee reduction for 
these entities is the rule's primary impact. Because the State UCR 
revenue entitlements remain unchanged by this rule, the participating 
States are not economically impacted. The recommended reduction from 
the current 2020 registration year fees (approved by the Board on 
August 12, 2021) and modified in February 2022, is just under 31 
percent, or about $18 in the lowest bracket and $17,688 in the highest 
bracket, per entity, depending on the number of vehicles owned or 
operated.

B. Congressional Review Act

    This rule is not a major rule as defined under the Congressional 
Review Act (5 U.S.C. 801-808).'' \42\
---------------------------------------------------------------------------

    \42\ A ``major rule'' means any rule that OMB finds has resulted 
in or is likely to result in (a) an annual effect on the economy of 
$100 million or more; (b) a major increase in costs or prices for 
consumers, individual industries, geographic regions, Federal, 
State, or local government agencies; or (c) significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or on the ability of United States-based enterprises to 
compete with foreign-based enterprises in domestic and export 
markets (49 CFR 389.3).
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C. Regulatory Flexibility Act (Small Entities)

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA), as 
amended by the Small Business Regulatory Enforcement Fairness Act of 
1996 (SBREFA),\43\ requires Federal agencies to consider the effects of 
the regulatory action on small business and other small entities and to 
minimize any significant economic impact. The term small entities 
comprises small businesses and not-for-profit organizations that are 
independently owned and operated and are not dominant in their fields, 
and governmental jurisdictions with populations of less than 50,000 (5 
U.S.C. 601(6)). Accordingly, DOT policy requires an analysis of the 
impact of all regulations on small entities, and mandates that agencies 
strive to lessen any adverse effects on these businesses.
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    \43\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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    This rule directly affects the participating States, motor 
carriers, motor private carriers of property, brokers, freight 
forwarders, and leasing companies. Under the standards of the RFA, as 
amended by the SBREFA, the participating States are not small entities. 
States are not considered small entities because they do not meet the 
definition of a small entity in section 601 of the RFA. Specifically, 
States are not considered small governmental jurisdictions under 
section 601(5) of the RFA, both because State government is not 
included among the various levels of government listed in section 
601(5), and because, even if this were the case, no State or the 
District of Columbia has a population of less than 50,000, which is the 
criterion by which a governmental jurisdiction is considered small 
under section 601(5) of the RFA.
    The Small Business Administration's (SBA) size standard for a small 
entity (13 CFR 121.201) differs by industry code. The entities affected 
by this rule fall into many different industry codes. In order to 
determine if this rule impacts a significant number of small entities, 
FMCSA examined the 2017 Economic Census data \44\ for two different 
industries, truck transportation (Subsector 484) and transit and ground 
transportation (Subsector 485).
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    \44\ U.S. Census Bureau, 2017 US Economic Census. Available at 
https://data.census.gov/cedsci/table?q=United%20States&t=Value%20of%20Sales,%20Receipts,%20Revenue,%20or%20Shipments&n=484&tid=ECNSIZE2017.EC1700SIZEREVEST&hidePreview=true (accessed Dec. 28, 2021).
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    According to the 2017 Economic Census, approximately 99.4 percent 
of truck transportation firms, and approximately 99.2 percent of 
transit and ground transportation firms, had annual revenue less than 
the SBA's revenue thresholds of $30 million and $16.5 million, 
respectively, to be defined as a small entity. Therefore, FMCSA has 
determined that this rule impacts a substantial number of small 
entities. However, FMCSA has determined that this rule will not have a 
significant impact on the affected entities. The effect of this rule is 
to reduce the annual registration fee motor carriers, motor private 
carriers of property, brokers, freight forwarders, and leasing 
companies are currently required to pay. The reduction will range from 
$18 to $17,688 per entity, depending on the number of vehicles owned 
and/or operated by the affected entities.
    Consequently, I certify that this action will not have a 
significant economic impact on a substantial number of small entities.

D. Assistance for Small Entities

    In accordance with section 213(a) of the Small Business Regulatory 
Enforcement Fairness Act of 1996,\45\ FMCSA wants to assist small 
entities in understanding this final rule so they can better evaluate 
its effects on themselves and participate in the rulemaking initiative. 
If the final rule will affect your small business, organization, or 
governmental jurisdiction and you have questions concerning its 
provisions or options for compliance, please consult the person listed 
under FOR FURTHER INFORMATION CONTACT.
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    \45\ Public Law 104-121, 110 Stat. 857, (Mar. 29, 1996).
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    Small businesses may send comments on the actions of Federal 
employees who enforce or otherwise determine compliance with Federal 
regulations to the Small Business Administration's Small Business and 
Agriculture Regulatory Enforcement Ombudsman (Office of the National 
Ombudsman, see https://www.sba.gov/about-sba/oversight-advocacy/office-national-ombudsman) and the Regional Small Business Regulatory Fairness 
Boards. The Ombudsman evaluates these actions annually and rates each 
agency's responsiveness to small business. If you wish to comment on 
actions by employees of FMCSA, call 1-888-REG-

[[Page 53694]]

FAIR (1-888-734-3247). DOT has a policy regarding the rights of small 
entities to regulatory enforcement fairness and an explicit policy 
against retaliation for exercising these rights.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538) 
requires Federal agencies to assess the effects of their discretionary 
regulatory actions. In particular, the Act addresses actions that may 
result in the expenditure by a State, local, or Tribal government, in 
the aggregate, or by the private sector of $170 million (which is the 
value equivalent of $100 million in 1995, adjusted for inflation to 
2020 levels) or more in any 1 year. Although this rule would not result 
in such an expenditure, the Agency discusses the effects of this rule 
elsewhere in this preamble.

F. Paperwork Reduction Act

    This rule contains no new information collection requirements under 
the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

G. E.O. 13132 (Federalism)

    A rule has implications for federalism under section 1(a) of E.O. 
13132 if it has ``substantial direct effects on the States, on the 
relationship between the national government and the States, or on the 
distribution of power and responsibilities among the various levels of 
government.''
    FMCSA has determined that this rule would not have substantial 
direct costs on or for States, nor would it limit the policymaking 
discretion of States. Nothing in this document preempts any State law 
or regulation. Therefore, this rule does not have sufficient federalism 
implications to warrant the preparation of a Federalism Impact 
Statement.

H. Privacy

    The Consolidated Appropriations Act, 2005, requires the Agency to 
assess the privacy impact of a regulation that will affect the privacy 
of individuals. This final rule would not require the collection of 
personally identifiable information.
    The Privacy Act (5 U.S.C. 552a) applies only to Federal agencies 
and any non-Federal agency that receives records contained in a system 
of records from a Federal agency for use in a matching program.
    The E-Government Act of 2002, requires Federal agencies to conduct 
a Privacy Impact Assessment (PIA) for new or substantially changed 
technology that collects, maintains, or disseminates information in an 
identifiable form. No new or substantially changed technology would 
collect, maintain, or disseminate information as a result of this rule. 
Accordingly, FMCSA has not conducted a PIA.

I. E.O. 13175 (Indian Tribal Governments)

    This rule does not have Tribal implications under E.O. 13175, 
Consultation and Coordination with Indian Tribal Governments, because 
it does not have a substantial direct effect on one or more Indian 
Tribes, on the relationship between the Federal Government and Indian 
Tribes, or on the distribution of power and responsibilities between 
the Federal Government and Indian Tribes.

J. National Environmental Policy Act of 1969

    FMCSA analyzed this rule pursuant to the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.) and determined this action 
is categorically excluded from further analysis and documentation in an 
environmental assessment or environmental impact statement under FMCSA 
Order 5610.1 (69 FR 9680), Appendix 2, paragraph 6.h. The Categorical 
Exclusion (CE) in paragraph 6.h. covers regulations and actions taken 
pursuant to regulation implementing procedures to collect fees that 
will be charged for motor carrier registrations. The requirements in 
this rule are covered by this CE and do not have any effect on the 
quality of the environment.

List of Subjects in 49 CFR Part 367

    Intergovernmental relations, Motor carriers, Brokers, Freight 
Forwarders.

0
 In consideration of the foregoing, FMCSA revises 49 CFR chapter III, 
part 367 to read as follows:

PART 367--STANDARDS FOR REGISTRATION WITH STATES

Sec.
367.20 Fees under the Unified Carrier Registration Plan and 
Agreement for registration years beginning in 2020 and ending in 
2022
367.30 Fees under the Unified Carrier Registration Plan and 
Agreement for Registration Years Beginning in 2023 and Each 
Subsequent Registration Year Thereafter.

    Authority: 49 U.S.C. 13301, 14504a; and 49 CFR 1.87. Sec. Sec.  
367.20, 367.30 367.40, 367.50.


Sec.  367.20   Fees under the Unified Carrier Registration Plan and 
Agreement for registration years beginning in 2020 and ending in 2022.

 Table 1 to Sec.   367.20--Fees Under the Unified Carrier Registration Plan and Agreement for Registration Years
                                      Beginning in 2020 and Ending in 2022
----------------------------------------------------------------------------------------------------------------
                                            Number of commercial motor
                                            vehicles owned or operated    Fee per entity for
                                             by exempt or non-exempt     exempt or non-exempt    Fee per entity
                 Bracket                       motor carrier, motor      motor carrier, motor    for broker or
                                           private carrier, or freight   private carrier, or    leasing company
                                                    forwarder             freight forwarder
----------------------------------------------------------------------------------------------------------------
B1.......................................  0-2........................                    $59                $59
B2.......................................  3-5........................                    176
B3.......................................  6-20.......................                    351
B4.......................................  21-100.....................                  1,224
B5.......................................  101-1,000..................                  5,835
B6.......................................  1,001 and above............                 56,977
----------------------------------------------------------------------------------------------------------------


[[Page 53695]]

Sec.  367.30   Fees under the Unified Carrier Registration Plan and 
Agreement for Registration Years Beginning in 2023 and Each Subsequent 
Registration Year Thereafter.

 Table 1 to Sec.   367.30--Fees Under the Unified Carrier Registration Plan and Agreement for Registration Years
                       Beginning in 2023 and Each Subsequent Registration Year Thereafter
----------------------------------------------------------------------------------------------------------------
                                            Number of commercial motor
                                            vehicles owned or operated    Fee per entity for
                                             by exempt or non-exempt     exempt or non-exempt    Fee per entity
                 Bracket                       motor carrier, motor      motor carrier, motor    for broker or
                                           private carrier, or freight   private carrier, or    leasing company
                                                    forwarder             freight forwarder
----------------------------------------------------------------------------------------------------------------
B1.......................................  0-2........................                    $41                $41
B2.......................................  3-5........................                    121
B3.......................................  6-20.......................                    242
B4.......................................  21-100.....................                    844
B5.......................................  101-1,000..................                  4,024
B6.......................................  1,001 and above............                 39,289
----------------------------------------------------------------------------------------------------------------


    Issued under authority delegated in 49 CFR 1.87.
Robin Hutcheson,
Deputy Administrator.
[FR Doc. 2022-18944 Filed 8-31-22; 8:45 am]
BILLING CODE 4910-EX-P


