[Federal Register Volume 63, Number 138 (Monday, July 20, 1998)]
[Proposed Rules]
[Pages 38788-38791]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-19294]
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DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
49 CFR Part 385
[FHWA Docket No. FHWA-98-3639]
RIN 2125-AE37
Safety Fitness Procedures
AGENCY: Federal Highway Administration (FHWA), DOT.
ACTION: Advance notice of proposed rulemaking (ANPRM); request for
comments.
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SUMMARY: On November 6, 1997, the FHWA published a final rule
incorporating the safety fitness rating methodology (SFRM) into 49 CFR
385 as appendix B. In that document the FHWA identified its ultimate
goal as creating a more performance-based means of determining the
fitness of carriers to conduct commercial motor vehicle (CMV)
operations in interstate commerce. The final rule announced that the
FHWA would publish an ANPRM shortly which would request comments on the
future evolution of a rating system that could be used both in making
safety fitness determinations and meeting the demands of shippers,
insurers and other present and potential users interested in evaluating
motor carrier performance. Since the final rule, legislation was
enacted that substantially heightens the importance of unsatisfactory
ratings. Accordingly, at this time the FHWA is seeking comments and
supporting data on what issues should be considered in constructing a
rating system for the future.
DATES: Comments must be received on or before September 18, 1998.
ADDRESSES: Submit written, signed comments to the docket number that
appears in the heading of this document to the Docket Clerk, U.S. DOT
Dockets, Room PL-401, 400 Seventh Street, SW., Washington, DC 20590.
All comments received will be available for examination at the above
address between 10 a.m. and 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 FURTHER INFORMATION CONTACT: Mr. William C. Hill, Office of Motor
Carrier Research and Standards, (202) 366-4009, or Mr. Charles Medalen,
Office of the Chief Counsel, (202) 366-1354, Federal Highway
Administration, 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 Access
Internet users can access all comments received by the U.S. DOT
Dockets, Room PL-401, by using the universal resource locator (URL):
http://dms.dot.gov. It is available 24 hours each day, 365 days each
year. Please follow the instructions online for more information and
help.
An electronic copy of this document may be downloaded using a modem
and suitable communications software from the Federal Register
Electronic Bulletin Board Service at (202) 512-1661. Internet users may
reach the Federal Register's home page at: http://www.nara.gov/nara/
fedreg and the Government Printing Office's database at: http//
www.access.gpo.gov/su__docs.
Background
Safety ratings for interstate motor carriers have been in use by
the Department of Transportation (DOT) since 1966 when Congress
transferred the responsibility for regulating motor carrier safety to
the Department from the Interstate Commerce Commission (ICC). Congress
delegated the authority to regulate qualifications and maximum hours-
of-service of drivers, and the safety of operations and equipment of
motor carriers in interstate commerce to the FHWA, an operating
administration of the DOT. Pub. L. 89-670, Sec. 6(f)(3)(B), Oct. 15,
1966, 80 Stat. 940, repealed and recodified by Pub. L. 97-449, Jan. 12,
1983, 96 Stat. 2415, 49 U.S.C. 104(c). Section 215 of the Motor Carrier
Safety Act (MCSA) of 1984 (Pub. L. 98-554, 98 Stat. 2844, 49 U.S.C.
31144) required the Secretary of Transportation to prescribe by
regulation procedures for determining the safety fitness of owners and
operators of CMVs in interstate commerce, including those seeking new
or additional operating authority from the ICC. It also stated that
``rules adopted under this section shall supersede all Federal rules
regarding safety fitness and safety rating of motor carriers in effect
on the date of enactment of this Act.'' The final rule implementing the
new safety fitness procedures mandated by the MCSA of 1984 became
effective in 1989 (53 FR 50968, Dec. 19, 1988, 49 CFR Part 385). The
procedures and rating methodology implementing the 1989 final rule were
recently modified in a rulemaking concluding in a final rule issued on
November 6, 1997, (62 FR 60035). This action was necessitated by a
ruling of the U.S. Court of Appeals for the D.C. Circuit in MST Express
et al. v. Department of Transportation (FHWA), 108 F.3d 401 (D.C. Cir.
1997), to the effect that the rating methodology had not been adopted
through notice and comment rulemaking as required by the Administrative
Procedure Act (5 U.S.C. 553).
In the Transportation Efficiency Act for the 21st Century (TEA-21),
Pub. L. 105-178, enacted June 9, 1998, Congress amended 49 U.S.C. 31144
to prohibit transportation of any property in interstate commerce by
motor carriers with unsatisfactory ratings, and provides such carriers
60 days within which to improve the rating (extendable another 60 days)
before the prohibition takes effect. This provision will be
incorporated into the current regulations in a subsequent rulemaking.
Safety Rating System
A safety fitness rating system was first used by the FHWA to
provide safety information to the ICC to assist in screening applicants
seeking operating authority. It evolved into a means to identify motor
carriers most likely to benefit from on-site compliance reviews (CRs).
Presently, safety ratings are made available to anyone upon request.
Shippers, including governmental agencies, use the ratings in making
carrier selections and insurers use them in making decisions regarding
coverage.
Safety ratings are developed in part through an on-site CR of a
motor carrier's records, operations and, when available, equipment. The
review is used to assess whether a commercial motor carrier's safety
management controls are functioning effectively to ensure acceptable
compliance with Sec. 385.5, safety fitness standard. Safety rating
factors are used in determining a safety rating. Four rating factors
relate to the regulatory requirements of the Federal Motor Carrier
Safety Regulations (FMCSRs) (general, driver, operational, vehicle) and
one to the Hazardous Materials Regulations
[[Page 38789]]
(HMR), if applicable. The carrier's accident rate is the remaining
factor. The rating factors are given equal weight, and one of three
safety ratings can be assigned: satisfactory, conditional, or
unsatisfactory. This process also identifies motor carriers needing
improvement in their compliance with the FMCSRs and HMRs. Motor
carriers rated unsatisfactory generally receive a higher priority for
future compliance and enforcement efforts.
Statutory Prohibitions
In 1991, following a mandate in the MCSA of 1990 (Pub. L. 101-500,
Sec. 15(b)(1), 104 Stat. 1218, 49 U.S.C. 5113), the FHWA promulgated
Sec. 385.13 which prohibits motor carriers of hazardous materials (in
quantities requiring placarding) and passenger carriers transporting
more than 15 passengers including the driver from operating with an
unsatisfactory safety rating unless the rating is improved within 45
days.
The prohibition against transportation of passengers or hazardous
materials was significant because it applied serious statutory
consequences to an unsatisfactory rating and limited the motor
carrier's ability to operate in interstate commerce. With this change,
Congress equated the unsatisfactory rating with unsafe operations. The
MCSA of 1990 also prohibited Federal agencies from using motor carriers
with an unsatisfactory rating to transport hazardous materials in a
quantity requiring placarding or more than 15 passengers.
Section 4009 of the TEA-21 now gives most carriers found by the
FHWA to be unfit a grace period 60 days. Those unable to improve their
fitness determination during that period will have to halt trucking
operations on the 61st day. However, passenger and hazardous materials
carriers found to be unfit remain subject to a 45-day grace period
before shutting down. A rule to implement TEA-21 will be proposed
later.
In the November 6, 1997, final rule, the FHWA included an amendment
which gives all motor carriers (not just those subject to operational
prohibitions) a 45-day grace period before a less-than-satisfactory
rating takes effect. Under the new procedures, motor carriers receive a
Notice of Proposed Rating when the rating would be less than
satisfactory. The notice informs the carrier of the reasons for the
unsatisfactory or conditional rating and that it will take effect in 45
days. It also advises the carrier of its procedural options under Part
385. During the exit interview at the conclusion of the CR, the motor
carrier also is informed of the safety violations discovered and is
advised how improvements can be made.
Other Uses of Ratings
As the safety rating system has evolved, the assignment of ratings
has taken on new importance to the public, particularly shippers and
insurance companies. The changing use and public perception of the
ratings provide the impetus for this rulemaking. Over time, the
reliance on the safety ratings to make important business decisions
regarding which carriers to use or which to insure has continued to
grow. The ability of the agency to maintain current ratings for all
motor carriers has not. Experience over the last eight years
illustrates the impracticality of attempting to rate all carriers in an
industry with high company turnover. The motor carrier industry has
also grown at a prodigious rate, especially since 1980. For example, in
1979, the year before deregulation, for-hire carriers holding
interstate authority from the ICC numbered under 20,000. Today that
group, which probably has the greatest demand for safety fitness
determinations, comprises nearly 80,000 registrants. The OMC census,
which includes private carriers and compensated carriers previously
exempt from ICC regulation, contains well over 400,000 companies.
Completing on-site rating reviews, bringing enforcement actions
against high-risk carriers, doing legislatively mandated complaint
investigations requiring on-site carrier reviews, and responding to
individual requests from motor carriers that need a satisfactory rating
for business purposes or that object to the ratings they have received,
all serve to contribute to a high demand the agency is not able to
fulfill with current resources.
New Demands
The Congress directed the FHWA in Sec. 4003 of the Intermodal
Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240,
105 Stat. 1914, 2144, to establish information systems containing
safety fitness data, including roadside inspections and out-of-service
orders for State commercial motor vehicle registrants (49 U.S.C.
31106). The Congress further directed the Department to demonstrate
methods of linking a carrier's safety fitness to vehicle registration
and to determine the types of sanctions and limitations which may be
imposed to ensure the safety fitness of the registrant. That
demonstration project, formerly known as the Commercial Vehicle
Information System (CVIS), developed a new methodology to prioritize
motor carriers for on-site reviews and monitor their safety
performance. It is now called the Performance and Registration
Information System Management (PRISM). The FHWA is planning to issue a
Notice of Proposed Rulemaking in the near future which will set forth
mechanisms to encourage carriers to improve their safety performance
and enhance the FHWA's ability to focus resources on poor performers,
i.e., those carriers over-involved in crashes or presenting the
greatest potential for crashes.
SAFESTAT
The demonstration project also produced a new safety risk
assessment model, the Motor Carrier Safety Status Measuring System or
SAFESTAT, which varies significantly from the current SFRM, because it
makes extensive use of performance data and assesses carrier
performance over time. A safety rating is static and does not change,
even though actual performance may improve or decline, until a new CR
is performed. In contrast, SAFESTAT uses all available safety
performance data to continuously assess the safety status of carriers
and generate a safety indicator. The indicator is a preliminary ranking
of carriers relative to their peers and is designed to identify those
carriers presenting potential risks that require additional attention.
In SAFESTAT, the results of a CR contribute additional data elements to
be considered along with safety performance data, such as accident
rates, roadside vehicle inspections, driver performance, and
enforcement actions. Other data elements, such as driver moving
violations, will be added to the model as they become more generally
available. SAFESTAT evaluates all data elements on the basis of
severity and time. For example, more weight is given to a fatal or
serious injury crash than a tow-away crash and recent crashes are
weighted more heavily than crashes occurring in the past. The CR
remains as an integral part of SAFESTAT, and is used to gather safety
data that cannot be obtained at the roadside. SAFESTAT represents
another method of assessing carrier safety, but at present it is not a
substitute for the current safety fitness rating process.
Third-party Ratings
Because of the increasing demand for safety fitness evaluations and
the realization that present resources are not likely to grow
dramatically, the FHWA is exploring the feasibility of using
[[Page 38790]]
third-party contractors to increase the pool of safety information
available. This is authorized by Sec. 4006 of TEA-21. Private rating
services could be used to meet the public demand for additional safety
information upon which to base business decisions. Federal resources
would be freed up to pursue corrective measures against poorly
performing carriers.
The U.S. Army's Military Traffic Management Command currently uses
third-party services to assess the safety fitness of motor carriers
under contract to the military. Private services could operate much
like those already providing consumer credit histories, significantly
increasing the availability of and access to relevant safety
information. The FHWA and the industry could join in a partnership to
set the standards for the conduct of safety fitness reviews, the use of
safety information, and other aspects of such a system. A large data
bank could be created into which safety information generated by
Federal, State and private sources would be deposited. So long as
shippers, insurers, and other stakeholders insisted on making decisions
about the use of motor carriers based, at least in part, on their
safety records, the demand for such a service would expand. Motor
carriers interested in marketing their services would inevitably need
to have a good safety rating to remain competitive. The FHWA is
particularly interested in the feasibility of such a system.
General Discussion
Since its adoption, the safety rating process has been the subject
of much confusion, controversy, and dispute. Although the FHWA had
preferred to use the process as a means of targeting scarce enforcement
and oversight resources, its use in making value judgments about the
quality of motor carriers has increasingly been perceived as a primary
function.
In a Notice of Proposed Rulemaking issued April 29, 1996, (61 FR
18870), the FHWA discussed the potential for the unsatisfactory rating
to become the equivalent of a judgment that the motor carrier is unfit
to operate in interstate commerce and to take on the aspect of a
debarment in fact, if not in law. The statutory prohibition against the
transportation of passengers or hazardous materials by a motor carrier
with an unsatisfactory rating is now, with the enactment of TEA-21, to
apply to all transportation of property. Most governmental shippers
consider the unsatisfactory rating a disqualifier, and many other
shippers treat it the same way. This is consistent with the FHWA's
belief that unsatisfactory carriers should be well below the average
and that the percentage of carriers earning such a rating ought to be
small. The unsatisfactory rating has become and will remain a judgment
that a carrier should discontinue operations until it can demonstrate a
commitment to maintain adequate safety practices. That judgment must be
correctly determined and fairly applied. In our system, a guilty
judgment follows the opportunity to be heard, and the notice procedure
adopted in the November 6, 1997, final rule should afford that
opportunity.
In view of recent developments regarding the current safety fitness
rating process and methodology and the obvious limitations on the
availability of resources required to maintain a safety fitness
evaluation process at the level many in the public and perhaps even the
Congress expect, the FHWA is asking for comments and suggestions for
changes through the following questions. In answering the questions, if
possible, please provide any statistical information or empirical
evidence to support your comments.
General
1. What do you believe should be the principal ingredients of a
rating system? What kind of a rating system would best suit your needs?
Why?
2. What benefits do you expect to gain from a rating system? What
business decisions do you presently base on carrier ratings?
3. Are there differences in the way ratings should be used? (e.g.,
by FHWA? By shippers? By others?).
4. If ratings must impact the continued operations of rated
carriers, what is the appropriate threshold for determining that a
carrier is unsatisfactory, meaning ``unfit to operate''?
Tiered System
5. Should the FHWA continue to maintain the three ratings:
satisfactory, conditional, or unsatisfactory? If yes, what benefits do
your perceive in maintaining the three ratings?
6. What should be the highest tier in such a system, and what
should it connote?
7. How long should any rating last?
8. Do you see any benefit to a single rating system by the FHWA
which would be concerned only with unsatisfactory carriers that would
have to improve or cease operating?
Criteria
9. Should such ratings be determined entirely by objective
(performance-based) criteria? Why?
10. What data elements best reveal the safety performance of the
motor carrier and should receive consideration in future safety fitness
determinations?
11. How should regulatory compliance be treated in safety fitness
determinations? Which regulations are most important in evaluating
safety fitness?
12. How should poor compliance be reconciled with good safety
experience? Should a motor carrier be rated unsatisfactory even if it
has a low accident rate?
Data Sources
13. Do you believe there is presently sufficient data available to
make judgments about a motor carrier's ability to stay in business?
14. Should carriers be grouped by similarity of operations? By
size?
Third-party System
15. Are there significant benefits to be derived from a third-party
on-site review system for evaluating motor carriers? What do you
perceive them to be?
16. If a third-party review system were to start up, what should be
the Federal role in such a system?
17. Could and should a private third-party review system coexist
with a Federal system? What would be their respective roles? What
relationships should there be, if any, between coexisting Federal and
private review systems?
18. What should be the effect of the third-party rating on the
carrier's operation? What kind of review procedures would be required?
19. Should the information from third-party on-site reviews become
a part of the FHWA data base? How should such information be treated?
20. Should a third-party reviewer have direct access to FHWA's data
base to a greater extent than such information is presently available
to the public?
21. Should there be standards for third-party reviews, including
the identification of the relevant data elements to be employed for
evaluative purposes? How should such standards be developed?
Rulemaking Analyses and Notices
All comments received before the close of business on the comment
closing date indicated above will be considered and will be available
for examination in the docket room at the above address. Comments
received after
[[Page 38791]]
the comment closing date will be filed in the docket and will be
considered to the extent practicable, but the FHWA may issue an NPRM at
any time after the close of the comment period. In addition to late
comments, the FHWA will also continue to file, in the docket, relevant
information that becomes available after the comment closing date, and
interested persons should continue to examine the docket for new
material.
Executive Order 12866 (Regulatory Planning and Review) and DOT
Regulatory Policies and Procedures
The FHWA has determined that this document does not contain a
significant regulatory action under Executive Order 12866. The FHWA
does not know what direction this rulemaking will take, however, it
does not expect that this rulemaking will be inconsistent with any
other agency actions or materially alter the budgetary impact of any
entitlements, grants, user fees, or loan programs. The FHWA anticipates
that the costs of any rulemaking action that might be implemented in
response to comments received would be no greater than the motor
carrier's current costs of complying with the regulatory requirements.
At this preliminary stage, we do not anticipate that any regulatory
action taken in response to comments introduced here would be of
sufficient economic magnitude to warrant a full regulatory evaluation.
Regulatory Flexibility Act
Although this document does not include any specific proposal at
this time, the FHWA believes this action will not lead to a proposed
rule that would have a significant economic impact on a substantial
number of small motor carriers.
To meet the requirements of the Regulatory Flexibility Act (5
U.S.C. 601-612), however, the FHWA would evaluate the effects on small
entities of any rule promulgated in subsequent phases of this
proceeding. Therefore, the agency is particularly interested in
comments from small entities on whether there are impacts from this
action and how those impacts may be minimized.
Unfunded Mandates Reform Act of 1995
The FHWA will analyze any proposed rule to determine whether it
would result in the expenditure by State, local, and tribal
governments, in the aggregate, or by the private sector, of $100
million or more in any one year, as required by the Unfunded Mandates
Reform Act of 1995 (2 U.S.C. 1532).
Executive Order 12612 (Federalism Assessment)
The FHWA will analyze any proposed rule using the principles and
criteria contained in Executive Order 12612 to determine whether the
proposal would have sufficient federalism implications to warrant the
preparation of a federalism assessment. The FHWA does not expect that
any action developed in response to comments introduced here would
infringe upon the State's ability to discharge traditional State
governmental functions because interstate commerce, which is the
subject of these regulations regarding interstate operations, has
traditionally been governed by Federal laws.
Executive Order 12372 (Intergovernmental Review)
Catalog of Federal Domestic Assistance Program Number 20.217, Motor
Carrier Safety. The regulations implementing Executive Order 12372
regarding intergovernmental consultation on Federal programs and
activities do not apply to this program.
Paperwork Reduction Act
The FHWA does not anticipate that any rulemaking action implemented
in subsequent phases of this proceeding would result in changes in the
collection of information requirements that are currently approved. The
FHWA does not foresee the likelihood of increased paperwork burdens
because what is being considered in this action is an evaluative
process to determine, in part, how regulated motor carriers are
complying with existing regulations. Should revisions to the safety
assessment and rating system be proposed in this proceeding, however,
the agency will evaluate carefully the information collection
implications of such revisions under the Paperwork Reduction Act of
1995, 44 U.S.C. 3501-3520.
National Environmental Policy Act
The agency will analyze any action implemented in subsequent phases
of this proceeding for the purposes of the National Environmental
Policy Act of 1969 (42 U.S.C. 4321-4347) to determine whether the
action would affect the quality of the environment.
Regulation Identification Number
A regulation identification number (RIN) is assigned to each
regulatory action listed in the Unified Agenda of Federal Regulations.
The Regulatory Information Service Center publishes the Unified Agenda
in April and October of each year. The RIN contained in the heading of
this document can be used to cross reference this action with the
Unified Agenda.
List of Subjects in 49 CFR Part 385
Highway safety, Highways and roads, Motor carriers, Motor vehicle
safety, and Safety fitness procedures.
Issued on: July 10, 1998.
Kenneth R. Wykle,
Federal Highway Administrator.
[FR Doc. 98-19294 Filed 7-17-98; 8:45 am]
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