[Federal Register Volume 63, Number 133 (Monday, July 13, 1998)]
[Notices]
[Pages 37613-37620]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-18539]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
[Docket No. FHWA-97-2287; MC-96-40]
Motor Carrier Regulatory Relief and Safety Demonstration Project;
Modifications
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Notice; request for comments.
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SUMMARY: The FHWA is extending the application period for the Motor
Carrier Regulatory Relief and Safety Demonstration Project (Project),
published in the Federal Register on June 10, 1997. The agency is also
seeking public comment upon proposed modifications to the entry
criteria and reporting requirements of the Project. In the June 1997
notice, the FHWA indicated that it would later publish additional
information clarifying the eligibility criteria and application
process. This notice is that clarifying document and proposes to
provide additional incentives to participating
[[Page 37614]]
motor carriers without adversely impacting highway safety. Motor
carriers operating commercial motor vehicles (CMVs) with a gross
vehicle weight rating (GVWR) between 10,001 and 26,000 pounds, in
interstate commerce, may qualify for exemptions from certain portions
of the Federal Motor Carrier Safety Regulations (FMCSRs) if they
exhibit exemplary safety records. Motor carriers participating in this
Project would have the opportunity to demonstrate they can maintain or
improve their safety records when they are given greater latitude to
select the means by which their safety performance is attained. The
FHWA seeks the comments of all interested parties regarding these
Project modifications, especially comments aimed at aiding the FHWA in
providing substantive industry incentives while maintaining the highest
degree of safety. Upon review of public comment, the FHWA intends to
modify the project, authorize qualified motor carrier participation,
and publish a supplemental notice of final determination.
DATES: Comments must be received no later than August 12, 1998. Written
comments addressing the information collection requirements of this
Project must be received on or before September 11, 1998. Applications
for participation in the Project must be submitted no later January 30,
1999.
ADDRESSES: Signed, written comments must refer to the docket number
appearing at the top of this document and must be submitted to the
Docket Clerk, Docket No. FHWA-97-2287; MC-96-40, U.S. DOT Dockets, Room
PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-0001. All
comments received will be available for examination at the above
address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except
Federal holidays. Those desiring notification of receipt of comments
must include a self-addressed stamped envelope or postcard.
For Internet users, all comments received will be available for
examination at the universal resource locator--http://dms.dot.gov--24
hours each day, 365 days each year. Please follow the instructions on-
line for more information and help.
FOR FURTHER INFORMATION CONTACT: Mr. Robert W. Miller, Office of Motor
Carriers, (202) 523-0178, or Mr. Charles Medalen, Office of the Chief
Counsel, (202) 366-1354, Federal Highway Administration, DOT, 400
Seventh Street, SW., Washington, D.C. 20590. Office hours are from 7:45
a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal
holidays.
SUPPLEMENTARY INFORMATION:
Electronic Availability
An electronic copy of this document may be downloaded using a
computer, modem, and suitable communications software from the
Government Printing Office (GPO) electronic bulletin board service
(telephone: 202-512-1661). Internet users may reach the GPO's web page
at: http://www.access.gpo.gov/su__docs/aces/aaces002.html.
Background
On November 28, 1995, the President signed the National Highway
System Designation Act of 1995 (NHS Act) (Pub. L. 104-59, 109 Stat. 568
(1995)). Section 344 of the NHS Act requires the FHWA to implement a
pilot program under which motor carriers operating CMVs with a GVWR
between 10,001 and 26,000 pounds, in interstate commerce, could qualify
for exemptions from the FMCSRs (49 CFR Part 325 et seq.). In accordance
with the NHS Act, the FHWA developed the Project and published a
detailed description of the Project in the Federal Register on June 10,
1997. There has been limited industry interest to participate in the
Project since the publication date.
Through a series of outreach sessions, the FHWA discovered the
absence of extensive industry interest is due, in part, to a lack of
understanding of how the Project would work and questions about
potential incentives for program participation. The purpose of this
notice is to provide the public with an opportunity to assist the FHWA
in determining whether clear and sufficient incentives have been
included, while maintaining the highest degree of safety. Modifications
have been made to the current details of the Project and additional
exemptions are proposed. The FHWA is seeking all points of view before
implementing these newly proposed parameters as part of the Project.
The FHWA will peruse all suggestions and weigh carefully the facts upon
which they are based.
The FHWA proposes that in order to participate in the Project, a
motor carrier would have to meet the criteria for admission developed
by the Secretary and outlined later in this notice. The criteria for
admission has been modified regarding the definition of ``accident''
and the Project entry accident rate threshold. Motor carriers seeking
to participate are still required to develop a written Safety Control
Plan for the Project. This plan should outline the measures which the
motor carrier would undertake to ensure its current level of safety is
not compromised while operating under the proposed exemptions. The
motor carrier would also enter into a written agreement of
participation with the FHWA in which it would agree to abide by its
Safety Control Plan and to work with the FHWA in generating and
monitoring certain Project data. The FHWA would grant, for the term of
the Project only, an exemption to participating motor carriers from
certain current requirements of the FMCSRs, but such exemption would
apply only to the eligible CMVs and drivers designated by the motor
carrier in its application. The FHWA will evaluate the Project data
throughout the Project, with particular focus upon the significance of
the data with regard to FHWA's regulatory reinvention and zero-base
initiatives. The FHWA would, in accordance with the NHS Act, use this
data to conduct a zero-base review of the need for, and the costs and
benefits of, all the FMCSRs.
The requirements for participation in the Project include several
information collection requirements which must be approved by the
Office of Management and Budget (OMB) under the Paperwork Reduction Act
(PRA) of 1995 (44 U.S.C. 3501-3520). On November 6, 1997, the OMB
reinstated the authorization for the FHWA's submission of these
information collection requirements as provided under OMB No. 2125-
0575, with an expiration date of November 30, 2000.
Analysis of Project data will occur throughout the Project, and
only at such time as that analysis is complete will the FHWA be in a
position to consider other performance-based initiatives. Given the
Project parameters, the FHWA believes that three years of continuous
and sustained motor carrier operations is the minimum amount of time
necessary to draw conclusions about operational safety. In view of the
customary level of activity for a motor carrier, the FHWA, after three
years, should be able to assert, with reasonable certainty, that the
data accumulated with respect to the activity of the class of motor
carriers in this Project is representative of future behavior.
Table of Contents
I. Introduction
II. Current Project Exemptions
III. Proposed Additional Project Exemptions
IV. Criteria For Admission to the Project
V. Applying for participation in the Project
VI. Safety Control Plans
VII. Eligible Drivers
VIII. The Agreement of Participation
IX. Removal from the Project
X. The Final Evaluation
[[Page 37615]]
XI. Preemption
XII. Paperwork Reduction Act of 1995
XIII. Conclusion
I. Introduction
Many commenters to the original June 10, 1997 proposal contended
the design of the Project would discourage motor carrier participation.
The explanation most frequently offered for this belief was that the
paperwork requirements of the Project, both at the time of application
and during the Project, were too burdensome and outweighed the
regulatory relief participating motor carriers would receive. The
commenters strenuously objected to the proposed paperwork requirements,
while noting that substantive exemptions weren't offered. For instance,
it was suggested that most motor carriers would continue to require a
pre-employment road test for new hires even if they were exempt from
that requirement. For these reasons and given the current level of
industry interest, clarifying and amending the Project requirements, as
well as providing additional incentives, seem to be in order. We
believe these modifications will reduce participants' burden and
improve industry interest.
II. Current Project Exemptions
In accordance with the NHS Act, qualified interstate motor carriers
would be exempt from certain regulatory requirements while
participating in the Project. In the June 10, 1997 Federal Register
notice, the regulations described below were those from which
participating motor carriers would be exempt. Those Project exemptions
would continue to be offered. No current exemptions would be removed.
Clarifications and modifications of these exemptions are explained in
this section. Motor carriers participating in the Project are only
exempt from the regulations specified in the Project. A participating
motor carrier may elect to voluntarily comply with any of the
requirements described below as part of its normal business practices.
For the purposes of the Project, however, the motor carriers would be
exempt from those requirements. Project motor carriers, and their
eligible drivers, would, with regard to the interstate operation of
CMVs with a GVWR between 10,001 and 26,000 pounds, be exempt from the
following requirements of the FMCSRs:
Driver Qualifications
Drivers would not be required to prepare, or furnish to the
employing motor carrier, an annual list of violations of motor vehicle
laws, or a certificate in lieu thereof, in accordance with 49 CFR
391.11(b)(8) and 391.27. Motor carriers, however, would be required to
obtain a State driving record as required by 49 CFR 391.23. Further,
drivers would not be required to successfully complete a Driver's Road
Test, or furnish an employing motor carrier an Application For
Employment, in accordance with 49 CFR 391.11(b)(10) and 391.31 and 49
CFR 391.11(b)(11) and 391.21. In addition, motor carriers would not
have to maintain ``complete'' Driver Qualification Files on each driver
in accordance with 49 CFR 391.51. The documents identified above would
not be required to be in the qualification file. Only those documents
from which participating motor carriers are not exempt would be
required to be in the driver qualification file.
Driver Hours-of-Service
Project drivers would not be required to comply with record of duty
status regulations, whether this entails maintenance of a record of
duty status (logbook) in accordance with 49 CFR 395.8, use of a time
card in accordance with 49 CFR 395.1(e), or the use of an interactive
automatic on-board recording device in accordance with 49 CFR 395.15.
Project motor carriers and drivers, however, must observe the
provisions governing maximum driving time, and the use of ill or
fatigued operators in accordance with 49 CFR 395.3 and 392.3.
Additionally, Project motor carriers and their drivers would not
forfeit any other exemptions available under the FMCSRs.
CMV Inspections
While participating in the Project, motor carriers would be exempt
from those requirements pertaining to CMV inspection records and their
retention, in accordance with 49 CFR 396.3 (b) and (c). Exemption would
also be granted from the regulations pertaining to the preparation of
driver vehicle inspection reports and the driver vehicle inspection
requirements ( 49 CFR 396.11 and 396.13 (b) and (c)). In addition,
driveaway-towaway inspections would not be required of Project motor
carriers or their drivers (49 CFR 396.15). Periodic inspections and the
preparation of periodic inspection reports ( 49 CFR 396.17 and 396.21)
would also fall under the exemption. However, motor carriers would not
be relieved of their responsibility to inspect, repair and maintain
their motor vehicles in accordance with 49 CFR 396.3(a). Furthermore,
Project drivers and CMVs would be subject to roadside safety
inspections.
Accident Information
Project motor carriers would be exempt from the requirement that
they maintain an accident register in accordance with 49 CFR 390.15
(b)(1) and (2).
III. Proposed Additional Project Exemptions
The FHWA has received recommendations for additional incentives to
be included in the Project to increase industry interest. The FHWA has
analyzed those recommendations and has determined that the following
additional incentives should be offered:
Driver Qualifications
Drivers would not be required to read or speak the English language
in accordance with 49 CFR 391.11(b)(2), provided they can effectively
communicate with enforcement officials. Motor carriers would not be
required to document investigations of drivers' employment history in
accordance with 49 CFR 391.23(c). Motor carriers would also be relieved
from documenting the annual review of drivers' records in accordance
with 49 CFR 391.25. In addition, relief would be provided regarding
medical examinations and certifications. The current requirement for
drivers to be medically re-examined and certified each 24 months in
accordance with 49 CFR 391.45(b)(1) would be removed for the duration
of the Project, provided participating drivers have a current medical
examination certification prior to entry into the Project. Newly hired
drivers would be required to be medically examined once, prior to entry
into the Project, in accordance with 49 CFR 391.45(a). We believe
participating motor carriers will ensure drivers are physically fit for
duty as part of their normal business practices.
In addition to driver qualification exemptions, motor carriers
would be relieved from the unauthorized passenger transportation
prohibition of 49 CFR 392.60.
Driver Hours-of-Service
The industry has asked the FHWA to reconsider providing relief from
the underlying hours-of-service (HOS) regulations, not just
recordkeeping. The FHWA has evaluated this request and has determined
that some relief might be provided without reducing highway safety.
Most trucks in this weight range are used in local transportation
operations. Drivers return to the home terminal at the end of each work
shift and do not spend overnight periods on the road. If overnight
stays are needed, drivers generally sleep in motels
[[Page 37616]]
because these CMVs are usually not equipped with sleeper berths. These
are optimal conditions for obtaining restorative sleep. The vast
majority of drivers operating this class of CMV are local drivers
operating between 6 a.m. and 9 p.m. Their on-duty hours are usually
regular in nature. They are usually afforded ample time to obtain
sufficient recuperative sleep (9-12 hours off-duty in every 24) during
the optimal time for sleep (midnight to 6 a.m.). Due to the nature of
their operations, they are the least affected by regulatory
restrictions. Additionally, the largest fraction of non-local use is by
private motor carriers of freight, primarily driver-operators in
service industries. The nature of their work is such that they
generally set their own schedules and are not influenced by third-party
customers to the degree a for-hire motor carrier is affected.
The FHWA is, therefore, proposing to allow participating drivers to
be on duty for 12 consecutive hours with no mileage limit and no
constraints on their activities. The premise being that such drivers
perform other functions in addition to driving and will not exceed the
current 10-hour driving limitation. This action would parallel the
exemption allowed by 49 CFR 395.1 (e). As stated previously, drivers
will be required to comply with the driving-time provisions of 49 CFR
395.3(a) and (b).
CMV Inspections
In the June 10, 1997 Federal Register notice, the FHWA relieved
participating motor carriers from performing annual vehicle inspections
in accordance with 49 CFR 391.17. Since we are proposing to exempt
participating motor carriers from the annual inspection, the
participating motor carriers would be exempt from the annual inspector
qualification requirements set forth in 49 CFR 396.19 while
participating in the Project and inspecting program CMVs. Participating
motor carriers would also be relieved of the requirements for brake
inspector qualifications and recordkeeping in accordance with 49 CFR
396.25, except for inspectors working on air brake systems. The
rationale for this is that most of these vehicles are equipped with
hydraulic brakes.
The FHWA seeks public comment on whether these additional
exemptions are appropriate and whether these additional incentives will
increase the industry's interest in participating. The NHS Act requires
the FHWA to ensure the Project is designed to achieve a level of
operational safety ``equal to or greater than'' that under the current
requirements of the FMCSRs. In considering additional exemptions under
this Project, the FHWA carefully weighed whether adequate safety
measures exist to ensure the exemptions do not adversely affect highway
safety.
IV. Criteria for Admission to the Project
The FHWA believes participation in this Project should be limited
to those motor carriers that have exemplary safety records. The agency
further believes that the best measure of an exemplary record would be
an accident rate equal to, or better than, that of the top 25 percent
of motor carriers. The FHWA estimates this accident rate to be 0.5, or
fewer, accidents per one million vehicle miles of travel. Accidents are
those incidents resulting in (1) a fatality, (2) bodily injury to a
person who, as a result of the injury, immediately receives medical
treatment away from the scene of the accident, or (3) one or more motor
vehicles incurring disabling damage as a result of the accident,
requiring the motor vehicle to be transported away from the scene by a
tow truck or other motor vehicle.
This rate is derived from an analysis of Compliance Review (CR)
data, collected for the years 1993 through 1997. The decision to base
this rate on accidents was made after discussions with representatives
from the motor carrier industry. This approach is consistent with the
FHWA's definition of the term ``accident'' as it appears in 49 CFR
390.5.
Note that the FHWA does not maintain any CR or other accident data
specific to motor carriers operating CMVs within the 10,000 pound to
26,000 pound range. Thus, the agency's analysis of the CR data could
not be limited precisely to the population targeted for this Project.
The analysis was, however, limited to only those motor carriers
operating at least one straight truck. The FHWA estimates that between
50 and 75 percent of all straight trucks are within the 10,000 pound to
26,000 pound range. Further, only those motor carriers, in the CR data
base, having three or more years of accident data were considered. The
analysis was further limited to those carriers averaging at least one
million vehicle miles traveled (VMT) over a three year period. This was
done to (1) be consistent with the carrier eligibility requirements
established for this Project, and (2) guard against any bias resulting
from including carriers having an insufficient number of VMT to
determine an accident rate accurately.
For the 271 motor carriers meeting these conditions in the analysis
file, 25 percent had an accident rate of 0.5 or fewer accidents per one
million VMT, based on three or more years of data. Hence, the cut-off
for identifying the top 25 percent of carriers based on this analysis
is 0.5.
Using CR data allows us to analyze accident data at the carrier
level. No other data base available to the agency allows for such an
analysis. Although it may be argued that by using such data, the agency
is basing its accident rate cut-off point on a group of motor carriers
already identified as substandard, only 36 out of 223, or 16 percent of
these carriers had a SafeStat crash safety evaluation area (SEA) score
greater than 75, thereby indicating a potentially high accident rate
(for 48 of the carriers, the SEA score could not be obtained or
inferred).
Furthermore, overall accident statistics produced from this file
are not dramatically different from accident statistics generated from
other data sources. For example, the average accident rate across all
carriers based on this analysis file (composed of carriers with
straight trucks, having at least three CRs between 1993 and 1997, and
an average three year VMT of one million or higher) is 0.75 accidents
per million VMT. If all motor carriers having had three or more CRs
between 1993 and 1997 are considered, with no constraints on power unit
composition or VMT, the accident rate drops slightly to 0.72. Using the
General Estimates System (GES) data base for purposes of comparison,
the overall accident rate between 1993 and 1996 for straight and
combinations trucks is 0.6 accidents per one million VMT.
The FHWA, therefore, proposes to modify the Project participation
requirement regarding accident rates by eliminating the ``police-
reportable'' accident definition and using the definition of an
``accident'' in 49 CFR 390.5. Furthermore, the FHWA proposes an
accident rate, for entry into and exit from the Project, of no more
than 0.5 accidents per million VMT, averaged over the most recent 36
months. Motor carriers with less than one million VMT in the most
recent 36 months would be eligible for the Project if they have no more
than one accident during that period of time. Two or more accidents
would result in a motor carrier being declared ineligible for this
Project. It is important to note that the accidents and mileage used in
calculating this accident rate only include vehicles eligible for the
Project and no others.
The FHWA seeks public comment on these proposed criteria. Is an
accident rate of no more than 0.5 accidents per 1,000,000 VMT a prudent
requirement in view of the need to limit
[[Page 37617]]
participation to those carriers with exemplary safety records? Are
there other tenable approaches? If yes, what data or rationale support
them?
The criteria for admission to the Project has otherwise remained
the same as published in the June 10, 1997 Federal Register, except for
the change regarding the definition of an accident and the accident
rate for Project eligibility described above. No other criteria
modifications are being proposed for admission to the Project. Each
motor carrier applying for admission to the Project must satisfy the
following 7 prerequisites:
1. The motor carrier operates in interstate commerce.
2. The motor carrier operates CMVs having a GVWR between 10,001 and
26,000 pounds.
Note: CMVs designed to transport more than 15 passengers
(including the driver), or used to transport hazardous materials in
placardable quantities, as defined in regulations issued by the
Secretary of Transportation under the Hazardous Materials
Transportation Act (49 U.S.C. 5101 et seq.), are not eligible to
participate in this Project.
3. The motor carrier does not currently have a Safety Fitness
Rating of ``Unsatisfactory'' issued by the FHWA. Motor carriers that
have not received a safety rating issued by the FHWA are eligible for
this Project.
4. For CMVs eligible for this Project, the motor carrier has an
accident rate equal to or less than 0.5 accidents per million VMT,
averaged over the most recent 36 months. The term ``accident'' is
defined in 49 CFR 390.5. For example, a motor carrier which has had 2
accidents and has 5 million VMT by eligible CMVs over the most recent
36 months would be eligible for the Project based upon the following
calculation: 2 divided by 5 equals 0.4, which is less than 0.5. This
calculation is to be based solely upon the accidents and mileage of
those CMVs which have a GVWR between 10,001 pounds and 26,000 pounds.
Motor carriers with less than one million VMT in the most recent 36
months are eligible for the Project if they have not had more than 1
accident during that period of time. Two or more accidents would result
in ineligibility for this Project.
5. The motor carrier is active on a year-round basis. ``Seasonal''
motor carriers are not eligible for the Project.
6. The drivers assigned by the motor carrier for participation in
the Project have not been convicted, in the past three years, of:
(a) An offense that directly arose out of a fatal traffic accident;
(b) Driving a CMV while under the influence of alcohol, including;
(i) Driving a CMV while the person's alcohol concentration is 0.04
percent or more;
(ii) Driving under the influence of alcohol, as prescribed by State
law; and
(iii) Refusal to undergo testing for alcohol or controlled
substances as required by any State or jurisdiction;
(c) Driving a CMV while under the influence of a controlled
substance;
(d) Leaving the scene of an accident involving a CMV; or
(e) A felony involving the use of a CMV, including the use of a CMV
in the commission of a felony involving manufacturing, distributing, or
dispensing a controlled substance.
7. The motor carrier has a written Safety Control Plan for this
Project. This plan must, in some form, clearly detail the measures
which the motor carrier will undertake to ensure the current level of
safety is not compromised by the operation of the Project exemptions.
This document may entail no more than submitting pertinent portions of
a company's current Operating Plan or similar document. An outline for
the creation of this document is also available, upon request, from the
FHWA. In its application, the motor carrier would agree to abide by its
Safety Control Plan. More detailed information regarding the Safety
Control Plan is provided later in this document.
V. Applying for the Project
In the Notice of Final Determination published in the Federal
Register on June 10, 1997, motor carriers were required to submit, in
writing, their requests for admission to the Project within 180 days of
the publication of the notice. The application deadline was extended to
June 30, 1998 (See the December 16, 1997 issue of the Federal
Register). The FHWA also made known that additional information
clarifying the eligibility criteria and application process would be
published at a later date. This notice is that clarifying document. To
ensure a continuous opportunity for interested motor carriers to apply
for the Project under the new criteria, the FHWA is further extending
the application deadline until January 30, 1999.
There will be no change in the application process during this
notice and comment period. Interested motor carriers should submit, in
writing, to the FHWA, the following:
(1) A completed Motor Carrier Identification Report (Form MCS-150),
which would provide updated information about the overall operation of
the motor carrier;
(2) The following certification, duly executed by the Chief
Operating Officer of the motor carrier:
I certify that (Name of motor carrier) operates CMVs having a GVWR
between 10,001 pounds and 26,000 pounds in interstate commerce, on a
year-round basis, and is not rated ``Unsatisfactory'' by the FHWA. I
certify the company has approved the attached Safety Control Plan and
will employ these controls throughout the Project. I certify that the
motor carrier EITHER: (1) has an accident rate equal to or less than
0.5 accidents per million vehicle miles traveled (VMT), averaged over
the most recent 36 months, based upon ________ accidents and ________
VMT, by CMVs having a GVWR between 10,001 pounds and 26,000 pounds, OR
(2) has ________ actual VMT (less than one million) over the most
recent 36 months and has experienced ________ (less than 2) accidents
involving the subject vehicles over that period of time.
I hereby submit a roster of ______ company drivers for
participation in the Project. The roster includes driver names, license
numbers, State of licensure, and dates of employment. I certify that
(1) each driver is eligible to participate in the Project, (2) each
operates CMVs having a GVWR between 10,001 pounds and 26,000 pounds,
and (3) I have independently verified that the driving record of each
does not include any convictions within the past 3 years of any of the
disqualifying offenses enumerated in the Project criteria. I have read
and agree to be bound by the requirements for notification and
submission of information to the FHWA outlined in the section entitled
``The Agreement'' in the Notice of Final Determination of this Project.
Signature:-------------------------------------------------------------
Name:------------------------------------------------------------------
Title:-----------------------------------------------------------------
Name of Motor Carrier:-------------------------------------------------
(3) A Safety Control Plan;
(4) A driver roster containing drivers' names, driver license
numbers, State of licensure, and dates of employment. This would enable
the FHWA to advise enforcement officers of the identity of Project
drivers and to monitor their driving performance.
Note: The motor carrier applicant would be required to submit
the names of ALL drivers eligible for participation in the Project.
The FHWA is aware that some motor carriers with large operations
may wish to volunteer a particular terminal, geographic region, or
State operation for this Project. The FHWA anticipates no difficulty in
affording motor carriers flexibility with this form of selection.
[[Page 37618]]
The FHWA would carefully scrutinize any suggested ``subunits'' to be
certain they advance the congressional mandate, particularly the
requirement that this Project examine a broad cross-section of the
motor carrier industry. All of the above items should be assembled and
submitted to: United States Department of Transportation, Federal
Highway Administration, 10-26 Safety Demonstration Project, HMT-1, 400
Seventh Street, SW., Washington, D.C. 20590-0001.
VI. Safety Control Plans
Motor carriers interested in applying for the Project must submit a
Safety Control Plan (SCP). Through outreach sessions with the industry,
the FHWA has discovered there is some confusion regarding the content
of such a plan. For the purposes of this Project, the SCP should
provide the answers to the following:
During the Project, how will the motor carrier applicant ensure:
(1) Project drivers are qualified to operate commercial motor
vehicles,
(2) Project vehicles are in safe operating condition,
(3) Project drivers are complying with the maximum hours-of-service
requirements, and
(4) It will receive a timely warning if Project drivers are
violating the FMCSRs or the Agreement of Participation.
The FHWA believes the preparation of the SCP should be
straightforward for most motor carriers which have the exemplary safety
record required to qualify for the Project. Experience has shown that
the vast majority of motor carriers who have exemplary safety records
also have a well-defined set of safety controls. For this Project, the
FHWA proposes that an existing set of company operating instructions,
whether currently included in a manual or are a set of policy
documents, could be used to satisfy the SCP requirement, if the motor
carrier applicant directed the FHWA to the sections which satisfy the
SCP requirements.
Where an initial SCP must be created, the FHWA believes that an
explanation of the day-to-day safety practices and controls which the
motor carrier employs, or will employ, should suffice. Upon review of
the motor carrier's SCP, the FHWA must be able to identify what safety
controls are in place, and be able to evaluate them in terms of the
level of safety they could be expected to produce. A model outline of
an SCP is available from the FHWA upon request.
VII. Eligible Drivers
Drivers operating CMVs with a GVWR between 10,001 pounds and 26,000
pounds are eligible for the Project. The FHWA will, however, permit a
Project motor carrier to direct Project drivers to operate vehicles
outside of the Project weight class if: (1) the driver operates Project
vehicles at least 25 percent of the time, and (2) the motor carrier can
provide the FHWA with a reasonable calculation of the total number of
VMT accrued outside the Project, and the total number of VMT accrued
within the Project, for each such driver. The FHWA can take such
information into account when conducting its evaluation of the Project,
and thus preserve the integrity of that evaluation. Motor carriers and
their drivers are advised to be alert to the fact that when activity is
conducted outside the Project, that activity is subject to all
provisions of the FMCSRs. For instance, a driver who operates a CMV
with a GVWR in excess of 26,000 pounds must, in accordance with 49 CFR
395.8, account for his or her hours-of-service for the previous 8
consecutive days even though the driver, during the earlier period, was
exempt from the requirements of 395.8 by virtue of being engaged in
Project activity.
VIII. The Agreement of Participation
If the FHWA finds that a motor carrier applicant is qualified for
admission to the Project, it will, by letter, admit the motor carrier
to the Project. Participation in the Project may commence immediately
upon receipt of the admission letter. A copy of this letter should be
made available to each Project driver to serve as the credential
authorizing his/her participation in the Project.
By agreement, Project motor carriers promise to report certain
information to the FHWA. The reporting requirements have remained
relatively the same as in the June 10, 1997 notice. The changes in the
reporting criteria primarily relate to accident reporting and
notification of changes to the Safety Control Plan. To assist motor
carriers in better understanding these reporting criteria, the
following additional guidance is being provided:
(1) Within 10 business days following the occurrence of a fatal
accident, and within 30 business days following the occurrence of a
non-fatal accident, involving a Project driver, the motor carrier would
be required to submit details of that accident to the FHWA. The
information would have to be sufficient enough to enable the FHWA to
locate the corresponding police accident report. The actual police
accident report will not be required to be submitted. Normally, it
would be sufficient to provide the date and physical location of the
accident, the vehicle number, and the driver's name and license number.
If the FHWA needs nonconfidential insurance-related information, it
would so advise the motor carrier.
Note: This information would have to be accompanied by a revised
calculation of accidents per million VMT, indicating the figures
used to make the calculation.
The motor carrier would be subject to removal from the Project (see
below) should this accident rate exceed 0.5 accidents per million VMT
for the most recent 36 month period. Project motor carriers with less
than one million VMT in the most recent 36 months and having two or
more accidents occur during the most recent 36 months would also be
subject to removal.
(2) Immediately following the addition of a new driver eligible for
the Project, the motor carrier would be required to submit an update to
the roster of Project drivers, including the name, driver's license
number, and date of employment of each driver added. A new and complete
driver roster would not be required each time the motor carrier intends
to use a new driver in the Project. This could be accomplished via
facsimile (FAX) , the U.S. Mail, or E-Mail and will be explained in
detail in the agreement letter. Without a complete and accurate roster
of the drivers participating in the Project, the FHWA would be unable
to offer real-time assistance to enforcement personnel at roadside
inspection locations.
(3) Removal of Project drivers would call for a procedure similar
to that described in (2) above.
(4) Within 10 business days, the motor carrier would be required to
notify the FHWA when the motor carrier is sold, goes out of business,
changes its name, ceases to operate, ceases to operate in interstate
commerce, ceases to operate CMVs with GVWRs between 10,001 pounds and
26,000 pounds, or ceases to conduct operations on a year-round basis.
(5) Within 30 business days, the motor carrier would be required to
notify the FHWA when the motor carrier chooses to amend its Safety
Control Plan, or is unable, for any reason, to carry out the terms of
the Safety Control Plan which it developed for this Project. A
resubmission of the entire Safety Control Plan would not be necessary.
Participating motor carriers would submit, in writing, an addendum to
the plan which describes the changes made.
(6) Semi-annually, Project motor carriers would be required to
provide the FHWA with a current calculation of
[[Page 37619]]
accidents per million VMT for the preceding 36 months and indicate the
figures used to arrive at the calculation. The first calculation would
be submitted upon the sixth-month anniversary of the date of admission
to the Project. Subsequent calculations would be due every six months
thereafter.
IX. Removal From the Project
The FHWA does not anticipate that any motor carrier which has
satisfied the stringent admission criteria of this Project will
experience any deterioration of its safety record. However, should this
occur, the FHWA would, consistent with its duty under the NHS Act, take
all steps necessary to protect the public interest, as well as the
integrity of the Project. Participation in this Project is voluntary,
and the FHWA would retain the right to revoke a motor carrier's
privilege to participate in the Project if its safety performance poses
a threat to highway safety. Participating motor carriers would not be
exempt from roadside inspections, compliance reviews or enforcement
actions pertaining to the remaining regulations from which they are not
exempt, or on those portions of their operations which would not be a
part of the Project. Also, Project drivers who pose a threat to highway
safety would, at a minimum, be subject to immediate revocation of their
privilege to participate in the Project.
Should the FHWA find the highway operations of a Project motor
carrier have placed the safety of the public in jeopardy, the agency
would remove the motor carrier from the Project. Should the three-year
accident rate of a Project motor carrier exceed 0.5 per million VMT for
the most recent 36 month period, the motor carrier would be subject to
disqualification. Additionally, Project motor carriers that incur two
or more accidents while accruing less than one million VMT in the most
recent 36 months would also be subject to disqualification.
The FHWA would also immediately remove any Project driver convicted
of any of the offenses enumerated under item 6 of the Criteria for
Admission to the Project. Such driver convictions would not necessarily
result in the Project motor carrier's removal. It could, however,
result in more intensive scrutiny of the Project motor carrier's
operation.
X. The Final Evaluation
At the conclusion of the Project, the FHWA would conduct an
evaluation of the Project. The principal objective of the evaluation
would be to provide input to the FHWA's ongoing zero-base regulatory
review. Simply put, we would determine whether a group of exemplary
motor carriers can operate a specific class of CMVs as safely without a
lot of regulation as it could when subject to the entire body of the
FMCSRs.
The evaluation will focus upon operational safety by comparing the
collective experience of Project motor carriers and drivers during the
Project with that prior to the Project. The evaluation will also
compare the collective experience of Project motor carriers with the
experience of motor carriers not participating in the Project. These
comparisons will be accomplished through the use of motor carrier
performance data obtained from Federal and State information systems,
as well as Project data reported to the FHWA by the participating motor
carriers.
The FHWA is cognizant of the economic realities which underlie the
suggestion that it should assure motor carriers that the exemptions
that would be allowed during this Project would continue beyond the
three-year life of this pilot. It is possible that the exemptions would
continue in some form. The case for permanent regulatory change,
however, must be made by using valid supporting data. The agency
recognizes that strong participation in this Project could generate
data which may support meaningful, performance-based improvements of
the current regulatory scheme. The FHWA cannot predict what the Project
data will show, or what regulatory changes, if any, would be supported.
After the first two years of the Project, the FHWA would analyze the
Project data. Depending upon the data and its analyses, indications of
possible regulatory changes could result.
XI. Preemption
In response to docket comments expressing concern about the
possible enforcement of intrastate regulations that would not be
compatible with the requirements of this Project, a supplemental notice
was published on October 29, 1996 (61 FR 55835) seeking comment on the
appropriate use of Federal preemption in this Project. Eight comments
to the supplemental notice were received. Five were from trade groups,
one from a motor carrier, one from a union, and one from a safety
advocacy group. Four were in favor of the exercise of Federal
preemption, two were opposed to it, and two offered no opinion. No
comments were received from the States.
The FHWA will not pursue preemption with regard to this Project.
For some time, however, through various Federal initiatives, foremost
of which is the program of grants to States known as the Motor Carrier
Safety Assistance Program (MCSAP), the States and the Federal
government have been working together to achieve a high degree of
uniformity between State and Federal motor carrier regulation and their
enforcement. At the same time, the Federal-State partnership has
resulted in a better understanding of regulatory and enforcement
problems. Thus, a new Federal program, though it may necessitate
corresponding changes in State enforcement activity, is more readily
understood by State officials. The FHWA believes that the Federal-State
partnership is capable of absorbing the changes which this Project
requires.
Currently, 26 States and Territories automatically adopt revisions
to the FMCSRs. It is reasonable to believe those States and Territories
would accept the pilot Project and its attendant exemptions while
permitting examination of the effect of performance-based standards on
highway safety. The FHWA will renew it's dialogue with the various
States to reaffirm their understanding of the Project and ensure proper
coordination and communication is accomplished.
XII. Paperwork Reduction Act of 1995
The FHWA is aware that this Project would impose special
recordkeeping and reporting requirements upon participating motor
carriers. The FHWA believes the paperwork requirements proposed in this
document are absolutely necessary to conduct this Project and to ensure
the safety of the public on the highways. For instance, in the absence
of a roster of drivers participating in the Project, the FHWA would be
unable to assist roadside enforcement officials in the conduct of their
duties. The FHWA also believes that most of the remaining records which
would be required by this Project are routinely maintained by most
motor carriers in the course of their day-to-day operations.
The voluntary participants in this program would be required to
comply with information collection requirements which are subject to
review by the OMB under the PRA. Persons are not required to respond to
a collection of information unless it displays a valid OMB control
number. The information collection requirements related to this Project
have been approved by the OMB until November 30, 2000, and assigned OMB
Control No. 2125-0575.
[[Page 37620]]
Generally, Federal Register concerning each collection of
information. Comments on the information collections proposed in this
notice will be considered by the FHWA in its request for long-term
approval. With respect to the collections of information described
below, the FHWA invites comments on: (1) Whether the proposed
information collections are necessary for the proper performance of the
functions of the agency, including whether the information will have
practical utility; (2) the accuracy of the FHWA's estimate of the
burden of the proposed information collections, including the validity
of the methodology and assumptions used; (3) ways to enhance the
quality, utility, and clarity of the information to be collected; (4)
ways to minimize the burden of these information collections upon those
who are to respond, including the use of automated collection
techniques, and other forms of information collections technology.
The title used to identify the information collections proposed in
this notice and submitted for OMB's approval is ``Motor Carrier
Regulatory Relief and Safety Demonstration Project.''
This Federal Register notice proposes a voluntary pilot Project. In
return for receiving exemptions from certain requirements of the
FMCSRs, each Project motor carrier would be required to develop and/or
furnish certain information about its operations. It is anticipated
that the initial application will require about one-half hour to
complete. This document is necessary to identify those motor carriers
that believe they are eligible to participate in the Project, and to
indicate their desire to participate in the Project. The Safety Control
Plan, outlining the safety management measures the motor carrier would
have in place to ensure that it would achieve the appropriate level of
operational safety during the Project, would require approximately one
and one-half hours to prepare. This document would be subject to
examination by the FHWA, and would be used to assist the FHWA in
ensuring that Project participants did not neglect those aspects of
motor carrier safety which are normally addressed by the regulations
from which they are temporarily exempt. The Safety Control Plan would
require approximately one and one-half hours to prepare. Further,
participating motor carriers would be required to submit to the FHWA
the name, driver's license number, and date of employment of each
participating driver. The motor carrier would also be required to
advise the FHWA immediately of any changes in this information. These
collections and submissions of information are necessary in order to
effectively grant Project exemption to identifiable operators of CMVs
and to permit the performance of each to be monitored and evaluated. It
is estimated that the reporting and recordkeeping burden for these
items would be one hour.
It is also proposed that each accident involving Project drivers
and/or Project vehicles would be reported to the FHWA as it occurs
(within 10 or 30 business days, depending upon severity). Each Project
motor carrier would also calculate and submit its accident rate per
million VMT on a semi-annual basis, and advise the FHWA if that rate
exceeds 0.5. This information is necessary in order to identify those
motor carriers whose safety performance is declining during the Project
and would also be used to assist in comparing the performance of the
exempt motor carriers with the performance of those which remain
subject to the FMCSRs. The annual reporting and recordkeeping burden
for this information collection is estimated to be one-half hour.
The most likely respondents to this information collection will be
motor carriers operating CMVs with a GVWR between 10,001 pounds and
26,000 pounds, operated in interstate commerce, have a satisfactory
safety rating or is not rated, and have an accident rate less than 0.5
per million VMT. The approximate number of motor carriers currently
eligible to participate in the Project is 33,000. Therefore, it is
estimated that the total annual reporting and recordkeeping burden will
be 275 hours.
XIII. Conclusion
The FHWA welcomes comment on any and all aspects of these proposed
changes to the Project from all interested parties. Upon review of
public comment, the FHWA intends to modify the project, authorize
qualified motor carrier participation, and publish a supplemental
notice of final determination.
(49 U.S.C. 31136 and 31141; 49 CFR 1.48)
Issued on: July 7, 1998.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-18539 Filed 7-10-98; 8:45 am]
BILLING CODE 4910-22-P
