Proposed Rule2023-18494
Safety Fitness Determinations
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
August 29, 2023
Issuing agencies
Transportation DepartmentFederal Motor Carrier Safety Administration
Abstract
FMCSA is interested in developing a new methodology to determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce. FMCSA requests public comment on the need for a rulemaking to revise the regulations prescribing the safety fitness determination process; the available science or technical information to analyze regulatory alternatives for determining the safety fitness of motor carriers; feedback on the Agency's current safety fitness determination (SFD) regulations, including the process and impacts; the available data and costs for regulatory alternatives reasonably likely to be considered as part of this rulemaking; and responses to specific questions in this advance notice of proposed rulemaking (ANPRM).
Full Text
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<title>Federal Register, Volume 88 Issue 166 (Tuesday, August 29, 2023)</title>
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[Federal Register Volume 88, Number 166 (Tuesday, August 29, 2023)]
[Proposed Rules]
[Pages 59489-59494]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18494]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
49 CFR Parts 350, 365, 385, 386, 387, and 395
[Docket No. FMCSA-2022-0003]
RIN 2126-AC52
Safety Fitness Determinations
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department
of Transportation (DOT).
ACTION: Advance notice of proposed rulemaking and request for comments.
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SUMMARY: FMCSA is interested in developing a new methodology to
determine when a motor carrier is not fit to operate commercial motor
vehicles (CMVs) in or affecting interstate commerce. FMCSA requests
public comment on the need for a rulemaking to revise the regulations
prescribing the safety fitness determination process; the available
science or technical information to analyze regulatory alternatives for
determining the safety fitness of motor carriers; feedback on the
Agency's current safety fitness determination (SFD) regulations,
including the process and impacts; the available data and costs for
regulatory alternatives reasonably likely to be considered as part of
this rulemaking; and responses to specific questions in this advance
notice of proposed rulemaking (ANPRM).
DATES: Comments on this notice must be received on or before October
30, 2023.
ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0003 using any of the following methods:
<bullet> Federal eRulemaking Portal: Go to <a href="https://www.regulations.gov/docket/FMCSA-2022-0003/document">https://www.regulations.gov/docket/FMCSA-2022-0003/document</a>. Follow the online
instructions for submitting comments.
<bullet> Mail: Dockets Operations, U.S. Department of
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor,
Room W12-140, Washington, DC 20590-0001.
<bullet> Hand Delivery or Courier: Dockets Operations, U.S.
Department of Transportation, 1200 New Jersey Avenue SE, West Building,
Ground Floor, Room W12-140, 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.
<bullet> Fax: (202) 493-2251.
To avoid duplication, please use only one of these four methods.
See the ``Public Participation and Request for Comments'' portion of
the SUPPLEMENTARY INFORMATION section for instructions on submitting
comments.
FOR FURTHER INFORMATION CONTACT: Ms. Stacy Ropp, (609) 661-2062,
<a href="/cdn-cgi/l/email-protection#f7a4969192838eb19e8399928484b3928392859a9e9996839e9899b7939883d9909881"><span class="__cf_email__" data-cfemail="db88babdbeafa29db2afb5bea8a89fbeafbea9b6b2b5baafb2b4b59bbfb4aff5bcb4ad">[email protected]</span></a>. FMCSA office hours are from 7:30
a.m. to 4 p.m., Monday through Friday, except Federal holidays. If you
have questions on viewing or submitting material to the docket, call
Dockets Operations at (202) 366-9826.
SUPPLEMENTARY INFORMATION:
I. Public Participation and Request for Comments
A. Submitting Comments
If you submit a comment, please include the docket number for this
ANPRM (FMCSA-2022-0003), indicate the specific section of this document
to which your comment applies, and provide a reason for each suggestion
or recommendation. You may submit your comments and material online or
by fax, mail, or hand delivery, but please use only one of these means.
FMCSA recommends that you include your name and a mailing address, an
email address, or a phone number in the body of your document so FMCSA
can contact you if there are questions regarding your submission.
To submit your comment online, go to <a href="https://www.regulations.gov/docket/FMCSA-2022-0003/document">https://www.regulations.gov/docket/FMCSA-2022-0003/document</a>, click on this ANPRM, click
``Comment,'' and type your comment into the text box on the following
screen.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
FMCSA will consider all comments and material received during the
comment period.
Confidential Business Information (CBI)
CBI is commercial or financial information that is both customarily
and actually treated as private by its owner. Under the Freedom of
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure.
If your comments responsive to the ANPRM contain commercial or
financial information that is customarily treated as private, that you
actually treat as private, and that is relevant or responsive to the
ANPRM, it is important that you clearly designate the submitted
comments as CBI. Please mark each page of your submission that
constitutes CBI as ``PROPIN'' to indicate it contains proprietary
information. FMCSA will treat such marked submissions as confidential
under the Freedom of Information Act, and they will not be placed in
the public docket of the ANPRM. Submissions containing CBI should be
sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, Office
of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001.
Any comments FMCSA receives not specifically designated as CBI will be
placed in the public docket for this rulemaking.
B. Viewing Comments and Documents
To view any documents mentioned as being available in the docket,
go to <a href="https://www.regulations.gov/docket/FMCSA-2022-0003/document">https://www.regulations.gov/docket/FMCSA-2022-0003/document</a> and
choose the document to review. To view comments, click this ANPRM, then
click ``Browse Comments.'' If you do not have access to the internet,
you may view the docket online by visiting Dockets Operations in Room
W12-140 on the ground floor of the DOT West Building, 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.
C. Privacy
DOT solicits comments from the public to better inform its
regulatory process, in accordance with 5 U.S.C. 553(c). DOT posts these
comments, without edit, including any personal information the
commenter provides, to <a href="http://www.regulations.gov">www.regulations.gov</a>, as described in the system
of records notice (DOT/ALL 14--Federal Docket Management System
(FDMS)), which can be reviewed at <a href="http://www.transportation.gov/privacy">www.transportation.gov/privacy</a>.
II. Legal Basis for the Rulemaking
This rulemaking is based primarily on 49 U.S.C. 31144(a) and (b)
\1\ which
[[Page 59490]]
direct the Secretary of Transportation (Secretary) to determine whether
an owner or operator is fit to operate safely CMVs and to maintain by
regulation a procedure for determining the safety fitness of an owner
or operator. FMCSA's authority to determine the safety fitness of
owners or operators of CMVs was broadened with major amendments in 1998
\2\ and 2005,\3\ and another amendment in 2012.\4\
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\1\ Enacted by Motor Carrier Safety Act of 1984 (1984 Act), sec.
215, Public Law 98-554, Title II, 98 Stat. 2829, 2844-2845 (Oct. 30,
1984), now codified at 49 U.S.C. 31144.
\2\ Sec. 4009(a) of the Transportation Equity Act for the 21st
Century (TEA-21), Public Law 105-178, 112 Stat. 107, 405 (June 12,
1998).
\3\ Sec. 4114(a) of the Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public
Law 109-59, 119 Stat. 1144, 1725 (Aug. 10, 2005).
\4\ Sec. 32707(a), Div. C., Title II of the Moving Ahead for
Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126
Stat. 813 (July 6, 2012).
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As amended, section 31144(a) now requires the Secretary to: (1)
determine whether an owner or operator is fit to operate CMVs safely,
utilizing among other things the crash record of an owner or operator
operating in interstate commerce and the crash record and safety
inspection record of such owner or operator--(A) in operations that
affect interstate commerce within the United States; and (B) in
operations in Canada and Mexico if the owner or operator also conducts
operations within the United States; (2) periodically update such SFDs;
(3) make such final SFDs readily available to the public; and (4)
prescribe by regulation penalties for violations of 49 U.S.C. 31144
consistent with 49 U.S.C. 521.\5\
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\5\ 49 U.S.C. 31144(a).
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Section 31144(b) provides that the Secretary shall maintain by
regulation a procedure for determining the safety fitness of an owner
or operator. The procedure shall include, at a minimum, the following
elements: (1) specific initial and continuing requirements with which
an owner or operator must comply to demonstrate safety fitness; (2) a
methodology the Secretary will use to determine whether an owner or
operator is fit; and (3) specific time frames within which the
Secretary will determine whether an owner or operator is fit.\6\
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\6\ 49 U.S.C. 31144(b).
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This rulemaking also relies on 49 U.S.C. 31133, which gives the
Secretary broad administrative powers to assist in the implementation
of the provisions of subchapter III of chapter 311 of 49 U.S.C. These
powers include, among others, authority to conduct inspections and
investigations, compile statistics, require production of records and
property, prescribe recordkeeping and reporting requirements, and
perform other acts considered appropriate.\7\ The Agency also has broad
authority to conduct investigations and inspect equipment, lands,
buildings, and other property.\8\ These powers are exercised to obtain
the data used to issue SFDs.
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\7\ See Sen. Report No. 98-424 at 9 (May 2, 1984).
\8\ 49 U.S.C. 502, 504(c), 506, 5121 (as to persons subject to
49 U.S.C. Chapter 51), 14122 (as to brokers and motor carriers
providing motor vehicle transportation for compensation).
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FMCSA has authority to revoke the operating authority registration
of any motor carrier that has been prohibited from operating as the
result of a final unfit SFD.\9\ FMCSA has the authority to take similar
action to revoke or suspend a motor carrier's safety registration on
the same grounds.\10\ FMCSA also has statutory authority to adopt a
requirement that States receiving Motor Carrier Safety Assistance
Program (MCSAP) grants enforce orders issued by FMCSA related to CMV
safety and hazardous materials (HM) transportation safety. States
receiving MCSAP funds therefore must enforce FMCSA orders to cease
operation for lack of operating authority registration as the result of
a final unfit SFD.\11\
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\9\ 49 U.S.C. 13905(f)(1)(B).
\10\ 49 U.S.C. 31134(c).
\11\ 49 U.S.C. 31102(a) and (b).
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The Secretary has delegated the authority to carry out all these
functions to the FMCSA Administrator.\12\
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\12\ 49 CFR 1.87(a)(5), (f), and (j).
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III. Executive Order (E.O.) 12866 (Regulatory Planning and Review),
E.O. 13563 (Improving Regulation and Regulatory Review), AND E.O. 14094
(Modernizing Regulatory Review)
This ANPRM is a significant regulatory action under section 3(f) of
E.O. 12866, as supplemented by E.O. 13563 and amended by E.O. 14094.
Accordingly, the Office of Information and Regulatory Affairs within
the Office of Management and Budget has reviewed it under these E.O.s.
E.O.s 12866, 13563, and 14094 require agencies to provide a
meaningful opportunity for public participation. Accordingly, FMCSA has
asked commenters to answer a variety of questions to elicit practical
information about alternative approaches for safety fitness
determinations, including the associated costs and benefits of those
approaches, and relevant scientific, technical, and economic data.
IV. Background
History of SFDs
The Federal Highway Administration (FHWA), the predecessor of
FMCSA, first promulgated Safety Fitness Procedures in 1988 \13\ to
determine the safety fitness of motor carriers through an investigation
generally conducted at the motor carrier's premises and to establish
procedures to resolve safety fitness disputes with motor carriers, as
required by the 1984 Act.\14\ In 1991, FHWA issued an interim final
rule,\15\ based on provisions in the Motor Carrier Safety Act of 1990
(1990 Act).\16\ This interim final rule prohibited certain motor
carriers rated Unsatisfactory (i.e., Unfit) from operating CMVs in
interstate commerce by transporting more than 15 passengers or
placardable quantities of HM starting on the 46th day after being found
unfit. This regulation went into effect on the date of publication in
August 1991. FHWA stated that it would use a safety-rating formula to
determine safety ratings, but the formula, while publicly available,
was not included in the safety fitness regulation.
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\13\ 53 FR 50961 (Dec. 19, 1988).
\14\ Sec. 215, Public Law 98-554, 98 Stat. 2829, 2844-2845, now
codified, as amended, at 49 U.S.C. 31144.
\15\ 56 FR 40802 (Aug. 16, 1991).
\16\ Sec. 15(b), Public Law 101-500, 104 Stat. 1213, 1218 (Nov.
3, 1990).
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In March 1997, in MST Express v. Department of Transportation,\17\
the U.S. Court of Appeals for the District of Columbia Circuit ruled in
favor of a motor carrier that had appealed its conditional safety
fitness rating. The court found that FHWA did not carry out its
statutory obligation to establish, by regulation, a means of
determining whether a carrier has complied with the safety fitness
requirements of the 1984 Act. Because the carrier's conditional safety
rating was based, in part, upon the formula that was publicly
available, but was not included in the promulgated 1988 final rule or
1991 interim final rule, the court vacated the petitioner's conditional
safety rating and remanded the matter to FHWA for further action.
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\17\ 108 F.3d 401 (D.C. Cir. 1997).
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In response, FHWA issued a second interim final rule in May 1997
\18\ incorporating the safety fitness rating methodology into the
safety fitness regulations, and a companion notice of proposed
rulemaking (NPRM) published the same day \19\ proposed to adopt the
formula or methodology for use in assigning safety fitness ratings to
all classes of motor carriers. This companion NPRM discussed the public
comments received in response to the 1991 interim final rule.
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\18\ 62 FR 28807 (May 28, 1997).
\19\ 62 FR 28826 (May 28, 1997).
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[[Page 59491]]
In November 1997, FHWA published a final rule \20\ incorporating
the Agency's revised safety fitness rating methodology in appendix B to
49 CFR part 385, Safety Fitness Procedures. In November 1998, FHWA
published amendments to the rule that corrected several minor
errors.\21\ These changes withstood judicial review in 1999 in American
Trucking Associations, Inc. v. U.S. DOT.\22\ The court in the American
Trucking Associations case gave deference to FHWA's interpretation of
its statutory directive as it related to the level of specificity
required in regulation and related interpretive guidance. Regarding
FHWA's reason for using interpretive guidance rather than notice and
comment rulemaking to implement aspects of the methodology, the court
noted: ``It is easy to imagine an affirmative reason for the agency's
decision not to subject the sampling procedure to notice and comment
rulemaking--the desire to be able to vary these technical elements of
the process without excessive delay as experience accrues.''
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\20\ 62 FR 60035 (Nov. 6, 1997).
\21\ 63 FR 62957 (Nov. 10, 1998).
\22\ 166 F.3d 374 (D.C. Cir. 1999).
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In 1998, TEA-21 added a prohibition \23\ applicable to all owners
and operators of CMVs not previously subject to the 1990 Act's
prohibition--that is, those CMV owners and operators not transporting
more than 15 passengers or HM in quantities requiring placarding.
Following that change, starting on the 61st day after being found
unfit, all owners and operators, including those not transporting more
than 15 passengers or HM in quantities requiring placarding, were
prohibited from operating CMVs in interstate commerce. It also
prohibited Federal agencies from using any unfit owner or operator to
provide any transportation service. FHWA proposed the regulations
implementing the TEA-21 amendments in 1999, and FMCSA, which was
established in 2000, published the final rule on August 22, 2000.\24\
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\23\ Sec. 4009(a), Public Law 105-178, 112 Stat. 107, 405,
codified in amended 49 U.S.C. 31144.
\24\ 65 FR 50919 (Aug. 22, 2000).
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FMCSA published several additional amendments earlier in 2000.\25\
These changes updated the list of acute and critical regulations to
conform with changes in FMCSA and the Pipeline and Hazardous Materials
Safety Administration regulations. In 2007,\26\ the Agency further
revised the safety fitness procedures regulations and appendix B to
implement SAFETEA-LU statutory amendments.\27\
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\25\ 65 FR 11904 (Mar. 7, 2000).
\26\ 72 FR 36760 (July 5, 2007).
\27\ Sec. 4114(a), Public Law 109-59, 119 Stat. 1144, 1725,
codified in amended 49 U.S.C. 31144.
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In 2007, in response to a motorcoach fire with numerous fatalities,
the National Transportation Safety Board (NTSB) recommended that FMCSA
use all motor carrier violations when assessing a carrier's safety
fitness. (See NTSB recommendation H-07-003 in ``Highway Accident
Report: Motorcoach Fire on Interstate 45 During Hurricane Rita
Evacuation Near Wilmer, Texas, September 23, 2005.''). A copy of the
NTSB report and a related Motor Carrier Safety Advisory Committee
(MCSAC) report have been placed in the docket. The MCSAC recommended
unanimously to FMCSA that it implement the NTSB proposal to use all
motor carrier violations when assessing a carrier's safety fitness.
NTSB closed the recommendation on September 15, 2015, after NTSB
accepted FMCSA's alternative action of including severity weights for
violations of the regulations and including them in its Safety
Measurement System (SMS). A copy of NTSB's letter closing the
recommendation is also in the docket.
Current SFD Process
SFDs are currently determined based on an analysis of existing
motor carrier data and data collected during an investigation (referred
to as a ``compliance review'' (CR) in Sec. 385.3). The CR may be
conducted on-site at the motor carrier's place of business and/or
remotely through a review of its records using a secure portal. The
existing SFD process analyzes six factors to assign a carrier's safety
fitness rating. Federal Motor Carrier Safety Regulations (FMCSRs) and
Hazardous Materials Regulations (HMRs) with similar characteristics are
grouped together in the six factors as follows:
<bullet> Factor 1 General--Parts 387 and 390
<bullet> Factor 2 Driver--Parts 382, 383, and 391
<bullet> Factor 3 Operational--Parts 392 and 395
<bullet> Factor 4 Vehicle--Parts 393 and 396
<bullet> Factor 5 HM--Parts 171, 177, 180, and 397
<bullet> Factor 6 Accident factor--Recordable accident rate per million
miles
FMCSA calculates a vehicle out-of-service rate, reviews crash
involvement, and conducts an in-depth examination of the motor
carrier's compliance with the acute and critical regulations of the
FMCSRs and HMRs, currently listed in 49 CFR part 385, appendix B, part
VII.
``Acute regulations'' are those where noncompliance is so severe as
to require immediate corrective action, regardless of the overall
safety management controls of the motor carrier.
``Critical regulations'' are related to management or operational
systems controls. Overall noncompliance is calculated and rated on a
point system within the six factors. During the investigation, for each
instance of noncompliance with an acute regulation or each pattern of
noncompliance with a critical regulation one point is assessed. Each
pattern of noncompliance with a critical regulation in part 395, Hours
of Service of Drivers, is assessed two points. For a critical
regulation, the number of violations required to meet the threshold for
a pattern is equal to at least 10 percent of those sampled, and more
than one violation must be found to establish a pattern. In addition,
on-road safety data is used in calculating the vehicle and crash
factors.\28\
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\28\ This is referred to as the Accident Factor in 49 CFR part
385 appendix B. Under Sec. 390.5, Accident and Crash have the same
meaning.
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If any factor is assessed one point, that factor is rated as
``conditional.'' If any factor is assessed two points, that factor is
rated as ``unsatisfactory.'' Two or more individual factors rated as
``unsatisfactory'' will result in an overall rating of
``Unsatisfactory.'' One individual factor rated as ``unsatisfactory''
and more than two individual factors rated as ``conditional'' will also
result in an ``Unsatisfactory'' rating overall (see Table 1 below).
Table 1--Current SFD Rating Table
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Factor ratings
-------------------------------------------------- Overall safety rating
Unsatisfactory Conditional
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0............................. 2 or fewer....... Satisfactory.
0............................. More than 2...... Conditional.
[[Page 59492]]
1............................. 2 or fewer....... Conditional.
1............................. More than 2...... Unsatisfactory.
2 or more..................... 0 or more........ Unsatisfactory.
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The Agency's current SFD process is resource-intensive and reaches
only a small percentage of motor carriers. In fiscal year (FY)
2019,\29\ FMCSA and its State partners conducted 11,671 CRs out of a
population of more than 567,000 active interstate motor carriers.\30\
The Agency conducts CRs that are either comprehensive, reviewing all
regulatory factors in full, or focused, reviewing fewer than all of the
factors. A comprehensive CR may result in a satisfactory, conditional,
or unsatisfactory safety rating. A focused CR may result in a
conditional or unsatisfactory safety rating or may not result in a
safety rating.
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\29\ FY 2019 was the last year prior to the COVID-19 pandemic.
In FY 2020 and FY 2021, the pandemic limited the number of CRs
conducted due to restrictions on travel and safety concerns.
\30\ This does not include intrastate HM motor carriers. <a href="https://ai.fmcsa.dot.gov/registrationstatistics/CustomReports">https://ai.fmcsa.dot.gov/registrationstatistics/CustomReports</a>, last
accessed April 26, 2022.
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Of the CRs conducted in FY 2019, 306 resulted in a final safety
rating of Unsatisfactory, 1,842 resulted in a final safety rating of
Conditional, and 2,701 resulted in a final safety rating of
Satisfactory.\31\ Only a small percentage of carriers with safety
management control deficiencies are required to submit corrective
action to continue operating and avoid a final unfit determination
based on an unsatisfactory rating.
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\31\ <a href="https://ai.fmcsa.dot.gov/SafetyProgram/spRptReview.aspx?rpt=RVFR">https://ai.fmcsa.dot.gov/SafetyProgram/spRptReview.aspx?rpt=RVFR</a>, last accessed April 26, 2022.
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FMCSA's SMS currently is not used in any way to generate SFDs. SMS
is FMCSA's prioritization system to identify motor carriers for
investigation that demonstrate through safety data that they pose
safety risk. SMS organizes inspection and crash data into seven
categories of violations known as Behavior Analysis and Safety
Improvement Categories (BASICs). SMS generates absolute measures of a
carrier's safety performance and then creates percentile rankings
within each BASIC that compare carriers' safety performance to
similarly sized carriers. Carriers whose relative percentiles exceed
established intervention thresholds are considered to be in ``alert''
status and may receive an FMCSA intervention, such as a warning letter
or investigation.
2016 NPRM
On January 21, 2016, FMCSA published an NPRM titled ``Carrier
Safety Fitness Determination'' (81 FR 3562, available at <a href="https://www.regulations.gov/document/FMCSA-2015-0001-0076">https://www.regulations.gov/document/FMCSA-2015-0001-0076</a>). That NPRM proposed
SFDs based on the carrier's on-road safety data; an investigation; or a
combination of on-road safety data and investigation information.
The 2016 NPRM proposed SFD methodology would have used a carrier's
absolute measure, but not its relative percentile ranking, in SMS to
generate unfit SFDs. The intended effect of that proposal was to more
effectively use FMCSA data and resources to identify unfit motor
carriers and to remove them from the Nation's roads. The previous NPRM
also proposed eliminating the current rating terms of Satisfactory,
Unsatisfactory, and Conditional and transitioning to a single
determination of Unfit.
The Agency concluded that many reasons supported changing the SFD.
First, the current SFD methodology evaluates a motor carrier's
compliance using only a limited range of roadside and other inspection
data. Additionally, the current process does not integrate all the data
available in the Motor Carrier Management Information System (MCMIS).
Approximately 3.5 million inspections are conducted each year, and this
information is not effectively used to remove unsafe operators from our
Nation's roadways.
Second, the safety rating is a snapshot of a company's safety
performance at the time of the investigation. Because the Agency has
resources to issue safety ratings to only a small percentage of motor
carriers each year, a safety rating does not necessarily reflect the
current safety posture of a motor carrier.
Third, the current SFD process is not designed to continually
monitor motor carrier on-road safety data.
Fourth, the assignment and perpetual existence of a Satisfactory
safety rating (until the rating is replaced after a subsequent CR), may
be misconstrued as an FMCSA approval of the current operations of a
motor carrier, when instead, it reflects FMCSA's evaluation of a motor
carrier's operations at the time of the investigation.
Fifth, under the current SFD process, a motor carrier is not
prohibited from operating with a Conditional rating even though a
ratable review reveals breakdowns in safety management controls in
multiple areas. For example, a motor carrier with documented
noncompliance in areas such as vehicle maintenance (factor 4) and
controlled substances and alcohol testing (factor 2) would receive only
a proposed Conditional rating, which, if it became final, would still
allow the motor carrier to continue operating.
Sixth, under present and foreseeable staffing levels, the current
regulations allow the Agency and its State partners to assess or rate
the safety fitness of only a small population of motor carriers on an
annual basis. The 2016 proposal would have expanded the number of
assessed and rated carriers.
Lastly, FMCSA has agreed to take action on an NTSB recommendation
related to changing the safety fitness methodology, H-12-017: Include
SMS rating scores in the methodology used to determine a carrier's
fitness to operate in the safety fitness rating rulemaking for the new
Compliance, Safety, Accountability initiative.
The Agency received 153 initial comment period submissions and 17
reply comment period submissions in response to the 2016 NPRM. While
many commenters favored the proposal, including most safety advocacy
and State law enforcement groups, others opposed it, including large
and small motor carriers and some trade associations. More information
about this rulemaking action can be found in the docket for the 2016
NPRM.
FAST Act Impacts
Section 5221 of the Fixing America's Surface Transportation (FAST)
Act \32\ required the National Academy of Sciences (NAS) to conduct an
independent study of SMS. In 2017 FMCSA withdrew the 2016 NPRM to
[[Page 59493]]
await the completion of the correlation study by NAS, and an analysis
of any corrective actions.\33\
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\32\ Public Law 114-94, div. A, title V, subtitle B, part II,
129 Stat. 1538 (Dec. 4, 2015), 49 U.S.C. 31100 note.
\33\ (82 FR 14848), March 23, 2017.
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On June 27, 2017, NAS published the report titled, ``Improving
Motor Carrier Safety Measurement.'' The report is available in the
docket for this ANPRM and also available at <a href="https://www.nap.edu/catalog/24818/improving-motor-carrier-safety-measurement">https://www.nap.edu/catalog/24818/improving-motor-carrier-safety-measurement</a>.
The NAS report concluded that SMS, in its current form, is
structured in a reasonable way and its method of identifying motor
carriers for alert status is defensible. The NAS agreed that FMCSA's
overall approach, based on crash prevention rather than prediction, is
sound. The NAS provided six recommendations. The primary recommendation
was for FMCSA to develop a complex statistical model known as item
response theory (IRT) and ``[i]f it is then demonstrated to perform
well in identifying motor carriers for alerts, FMCSA should use it to
replace SMS in a manner akin to the way SMS replaced SafeStat.'' FMCSA
accepted all the NAS recommendations and developed an implementation
plan, as required by the FAST Act. A copy of the action plan is
available in the docket of this ANPRM.
In addition, section 5223 of the FAST Act (49 U.S.C. 31100 note)
prohibits FMCSA from using information regarding the SMS percentiles
and alerts for SFDs until the DOT's Office of the Inspector General
makes five certifications required by the FAST Act. The OIG has not
issued the five certifications, and this statutory limitation therefore
currently prevents FMCSA from using SMS percentiles or alerts for SFDs,
as was recommended by the NTSB.
Current Status of SMS
This ANPRM does not make any specific proposals but asks for input
on the potential use of the SMS methodology to issue SFDs in a manner
similar to the 2016 FMCSA proposed rule.\34\ To inform that input,
FMCSA provides an update on its work related to SMS here and in the
Agency's Federal Register notice titled, ``New Carrier Safety
Assessment System,'' which was published at 88 FR 9954 (February 15,
2023). As recommended by NAS, FMCSA developed and tested an IRT model.
To do so, FMCSA contracted with NAS for the establishment and operation
of a standing committee of experts, as well as with subject matter
experts from academia with experience in large-scale IRT modeling, to
provide advice and guidance to the Agency during the development and
testing of the IRT model. The IRT model was designed and tested using
inspection data from FMCSA's MCMIS database. The full modeling report
titled, ``Development and Evaluation of an Item Response Theory (IRT)
Model for Motor Carrier Prioritization,'' which details the statistical
methodologies applied in developing and testing the IRT model, is
available in the docket of the February 15, 2023, notice regarding SMS.
---------------------------------------------------------------------------
\34\ SMS methodology is a generalized motor carrier assessment
tool and differs from the use of SMS percentiles and alerts. The use
of SMS methodology for SFDs, as previously proposed in 2016, is not
prohibited by statute.
---------------------------------------------------------------------------
The Agency's IRT modeling work revealed many complications of using
an IRT model. As a result, the Agency has concluded that IRT modeling
does not perform well for FMCSA's use in identifying motor carriers for
safety interventions and thus is not a useful tool for improving safety
through FMCSA's safety fitness authority. First, the IRT model
developed by FMCSA is heavily biased towards identifying smaller
carriers that have few inspections with violations and limited on-road
exposure to crash risk. When the safety event groups and data
sufficiency standards used in SMS were applied to the IRT model, the
IRT produced similar results to SMS.
Second, the IRT does not use vehicle miles traveled or power units
to adjust for on-road exposure in the Unsafe Driving BASIC. As a
result, the IRT identified carriers with much lower crash rates in that
BASIC compared to SMS.
Third, IRT modeling is not understandable by most stakeholders or
the public. IRT's inherent complexity makes it challenging for the
industry and public to replicate and interpret results. While SMS
results using FMCSA's existing processes can be reproduced and
explained using mathematical calculations, IRT requires an advanced
understanding of statistical modeling and analysis.
Fourth, a motor carrier could not independently compute its IRT
results. IRT results can be computed only for the entire carrier
population. A carrier would not be able to identify how specific
violations or areas of regulatory noncompliance impacted its
prioritization status or how it could improve its status.
Finally, IRT's runtime is incompatible with FMCSA's operational
needs for monthly updates. The FMCSA IRT model takes 4 weeks to run as
compared to 2 days for SMS. The long runtime would make it difficult to
make even minor changes to the system.
Because IRT is overly complex and adopting the IRT model would
reduce transparency and does not improve overall safety, FMCSA will not
replace SMS with an IRT model. Instead, as noted in the notice, FMCSA
is committed to continuously improving SMS to identify motor carriers
that present the highest crash risk through a transparent and effective
system. Those improvements include reorganizing the BASICs to better
identify specific safety problems, combining the 958 violations used in
SMS in 116 violation groups, simplifying violation and crash severity
weights, removing percentile jumps that occur when carriers move into a
new safety event group, and adjusting the intervention thresholds to
improve SMS.
V. Discussion
This ANPRM seeks input regarding new methodologies that would
determine when a motor carrier is not fit to operate CMVs in or
affecting interstate commerce. The intended effect of this action is to
more effectively use FMCSA data and resources to identify unfit motor
carriers and to remove them from the Nation's roadways. A successful
SFD methodology may: target metrics that are most directly connected to
safety outcomes; provide for accurate identification of unsafe motor
carriers; and incentivize the adoption of safety-improving practices.
Though FMCSA is not making any proposals at this time, the Agency
is seeking input on several of the topics discussed in the 2016 NPRM.
Questions
FMCSA specifically requests responses to the following questions:
1. Should FMCSA retain the current three-tiered rating system of
Satisfactory, Unsatisfactory, and Conditional? Why or why not?
A. In the 2016 NPRM, FMCSA proposed replacing the three-tiered
structure with a single rating of Unfit. Under such a structure,
carriers that completed safety fitness reviews successfully would
continue operating and not appear different, in terms of their SFD,
from carriers that had not yet been reviewed. Would this approach be
sufficient to ensure safety? Please explain your views.
B. What are the costs and/or benefits to a motor carrier associated
with each current possible rating? Please provide data or information
relating to the costs and/or benefits for motor carriers who are issued
final ratings for each of the ratings listed below:
<bullet> Unsatisfactory rating (Unfit)
[[Page 59494]]
<bullet> Conditional rating
<bullet> Satisfactory rating
2. Should FMCSA include additional HM regulatory requirements in
appendix B to part 385 (Explanation of Safety Rating Process) in the
SFD calculation?
3. Currently, the table of regulatory factors in appendix B to part
385 (at II(C)(b)) excludes parts 172 and 173. However, there are
violations in these parts included in the list of critical and acute
violations in appendix B. Should they be included in the SFD
calculations?
4. Should motor carriers of passengers be subject to higher
standards than other motor carriers in terms of safety fitness rating
methodology? If yes, what should these higher safety standards or
thresholds be, and why are they appropriate? If no, why not?
5. Is there a specific aspect of safety management, such as driver
training, driver fatigue management and mitigation, vehicular
maintenance and repair, etc., that is so fundamentally different in
passenger transportation, relative to CMVs transporting property, that
FMCSA's safety fitness rating methodology should take this aspect into
special consideration? If yes, what is this specific aspect of safety
management, and how do you recommend FMCSA handle the matter within its
safety fitness rating methodology? If no, why are the safety management
aspects the same?
6. How will States be affected if the Agency changes the SFD? What
resources might be needed to accommodate any changes, and how long
would it take to incorporate any proposed changes?
7. The current SFD does not use all available safety data, such as
all inspection-based data. Should the SMS methodology be used to issue
SFDs, in a manner similar to what was proposed in the 2016 NPRM? If so,
what adjustments, if any, should be made to that proposal? If not,
should the Agency include more safety data in the SFD process in other
ways and, if so, how? The Agency is interested in comments specifically
on whether the integration of on-road safety data into the SFD process
would improve the assessment of motor carriers' safety posture and the
identification of unfit motor carriers.
8. Given the importance of driver behavior in preventing crashes,
how would you recommend the Agency incorporate driver behavior data
into the SFD? What data should the agency use? How should this
methodology distinguish between data resulting in a conviction and data
without a conviction?
9. What changes, additions, or deletions, from the current list of
critical and acute violations should be included in the NPRM, and why?
Should the list be retained? Why or why not?
10. Should SFD consider motor carriers' adoption and use of safety
technologies in a carrier's rating? How should this fit into the SFD
methodology?
11. Should the Agency revise the current administrative review
procedures in Sec. Sec. 385.15 and 385.17(j) related to administrative
review and corrective action? Which of those procedures should be
changed or discarded? Please give the reasons for your views.
12. Given that unsafe driving behaviors, such as speeding and
texting while driving, are highly correlated with crash risk, should
the safety fitness rating methodology give more weight to unsafe
driving violations of Sec. 392.2? For example, each pattern of
noncompliance with a critical regulation relative to part 395, Hours of
Service of Drivers, is assessed double the points in the safety fitness
rating methodology. Should violations of Sec. 392.2, or a subset of
those violations, be treated in a similar manner?
Robin Hutcheson,
Administrator.
[FR Doc. 2023-18494 Filed 8-28-23; 8:45 am]
BILLING CODE 4910-EX-P
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