Carrier Safety Fitness Determination

Federal RegisterJan 21, 2016

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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-2015-0001]

RIN 2126-AB11

Carrier Safety Fitness Determination

AGENCY:

Federal Motor Carrier Safety Administration (FMCSA), DOT.

ACTION:

Notice of proposed rulemaking (NPRM); request for comments.

SUMMARY:

FMCSA proposes to amend the Federal Motor Carrier Safety Regulations (FMCSRs) to revise the current methodology for issuance of a safety fitness determination (SFD) for motor carriers. The proposed new methodologies would determine when a motor carrier is not fit to operate commercial motor vehicles (CMVs) in or affecting interstate commerce based on the carrier's on-road safety data in relation to five of the Agency's seven Behavior Analysis and Safety Improvement Categories (BASICs); an investigation; or a combination of on-road safety data and investigation information. 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.

DATES:

FMCSA will be accepting both initial comments and reply comments in response to this NPRM. Send your initial comments on or before March 21, 2016 and reply comments on or before April 20, 2016.

ADDRESSES:

You may submit comments (initial and reply) identified by the docket number FMCSA-2015-0001 using any of the following methods:

•

Web site: http://www.regulations.gov

. Follow the instructions for submitting comments on the Federal electronic docket site.

•

Fax:

1-202-493-2251.

•

Mail:

Docket Services, U.S. Department of Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590-0001.

•

Hand Delivery:

Ground Floor, Room W12-140, DOT Building, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m. Monday through Friday, except Federal holidays.

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 below for instructions on submitting comments.

FOR FURTHER INFORMATION CONTACT:

Mr. David Yessen, (609) 275-2606,

David.Yessen@dot.gov

. 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 Docket Services, telephone 202-366-9826.

SUPPLEMENTARY INFORMATION:

This notice of proposed rulemaking is organized as follows:

Table of Contents

I. Acronyms and Abbreviations

II. Executive Summary

III. Legal Basis

IV. History of Past Actions

A. History of SFDs

B. Analytical Basis for the Proposed Changes

V. Existing Safety Monitoring and Data Quality Programs

A. Safety Measurement System (SMS)

B. Interventions

C. Current SFD Process

D. Data Quality Program

VI. Proposed SFD Changes

A. Numbers of Inspections and Violations Used in This Proposal

B. Only One SFD—Unfit

C. Three Paths to “Proposed Unfit”

D. MAP-21 Requirements for Motor Carriers of Passengers and Operators of Motorcoach Services

E. Summary Justification for SFD Proposal

VII. Revised SFD Appeals Process

A. Administrative Review of Material Errors

B. Claiming Unconsidered Inspection Data

C. Requests To Operate Under a Compliance Agreement

D. Requests To Resume Operations After a Final Unfit Determination

E. Carriers Expected To Receive a Final Unfit SFD

VIII. Implementation of and Transition to Final Rule

A. Proposed MCSAP Requirements

B. Implementation of a Final Rule and Transition Provisions

C. General Statements of Enforcement Policy Regarding Violation Severity Weights and Time Weights

IX. Section-by-Section Description of Proposed Rule

A. Part 350

B. Part 365

C. Part 385

D. Part 386

E. Part 387

F. Part 395

X. Regulatory Analyses and Notices

XI. Public Participation and Request for Comments

A. Submitting Comments

B. Viewing Comments and Documents

C. Privacy Act

I. Acronyms and Abbreviations

ATRI

American Transportation Research Institute.

BASIC

Behavior Analysis and Safety Improvement Categories.

CDL

Commercial Driver's License.

CMV

Commercial Motor Vehicle.

CVOR

Commercial Vehicle Operators Registration.

Compliance Review.

CSA

Compliance, Safety, Accountability.

DOT

United States Department of Transportation.

FHWA

Federal Highway Administration.

FMCSA

Federal Motor Carrier Safety Administration.

FMCSRs

Federal Motor Carrier Safety Regulations, 49 CFR parts 350 through 399.

Federal Register.

Hazardous Materials.

HMR

Hazardous Materials Regulations, 49 CFR parts 171 through 180.

MCMIS

Motor Carrier Management Information System.

MCSAC

Motor Carrier Safety Advisory Committee.

MCSAP

Motor Carrier Safety Assistance Program.

NPRM

Notice of Proposed Rulemaking.

NTSB

National Transportation Safety Board.

OMB

Office of Management and Budget.

PHMSA

Pipeline and Hazardous Materials Safety Administration.

Power Unit.

SFD

Safety Fitness Determination.

SMS

Safety Measurement System.

VMT

Vehicle Miles Traveled.

VOLPE

U.S. DOT Office of the Assistant Secretary for Research and Technology's John A. Volpe National Transportation Systems Center, Cambridge, MA.

II. Executive Summary

As the Federal government agency responsible for commercial motor vehicle (CMV) safety, FMCSA must identify unfit motor carriers. Under the existing regulations, a compliance review must be conducted to issue a Safety Fitness Determination (SFD) and, if a motor carrier receives a final unsatisfactory safety rating, FMCSA declares that motor carrier to be unfit to operate on the Nation's highways. The current SFD process does not permit the Agency to use all of the on-road safety data in the Motor Carrier Management Information System (MCMIS) in making each SFD. Based on experience and empirical data from the Safety Measurement System (SMS) and interventions, the integration of on-road safety data into the SFD process would improve the assessment of motor carriers and the identification of unfit motor carriers. Such integration is a longstanding recommendation of the National Transportation Safety Board (NTSB). Under this proposal, unfit determinations could be based on a carrier's on-road safety data alone. In this NPRM, FMCSA proposes to eliminate the current three-tier rating system (

i.e.,

satisfactory-conditional-unsatisfactory) for determining safety fitness in favor of a single determination of unfit. FMCSA's statutory requirement is to determine which owners or operators are unfit to operate on the Nation's roadways, and prescribe specific consequences for motor carriers found to be unfit. By statute, such carriers are prohibited from operating in interstate commerce or transportation that affects interstate commerce.

Using data from inspections or investigations or both, FMCSA proposes to evaluate carriers monthly to determine if they failed two or more Behavior Analysis and Safety Improvement Categories (BASICs) and thus should be proposed unfit. A motor carrier would be proposed unfit if it: (1) Failed two or more BASICs based exclusively on on-road safety data from 11 or more inspections with 1 or more violations in each, in a single BASIC, before a carrier could fail the BASICs; (2) had violations of the proposed set of critical and acute regulations, identified through an investigation, that cause the motor carrier to fail two or more BASICs; or (3) failed two or more BASICs based on a combination of data from inspections and investigation results. The Agency's analysis and reasoning for these proposals is explained in more detail later in this document.

FMCSA's MCMIS automatically takes each motor carrier's safety data from on-road safety inspections and converts the data into a BASIC measure and a rank/percentile using the methodology in “Carrier Safety Measurement System (CSMS) Methodology.”

This methodology, available to the public since December 2010, provides the details of the SMS currently used for identifying unsafe behaviors and prioritizing and selecting motor carriers for interventions, including investigations and compliance reviews. Each motor carrier's measure in each BASIC is a quantifiable determination of safety behavior in that BASIC. Percentile ranking allows the safety behavior of a motor carrier to be compared with the safety behavior of carriers with similar numbers of safety events. Within each safety event group, a percentile is computed on a 0-100 scale for each motor carrier that receives a non-zero measure, with 100 indicating the worst performance. Currently, when a motor carrier's SMS measures percentile ranking meets or exceeds the intervention thresholds shown in Table 3 below, the Agency prioritizes the carrier for interventions, including possibly a compliance review.

See “Safety Measurement System Changes, June 2012” page 5 in docket FMCSA-2012-0074 at

http://www.regulations.gov/#!documentDetail;D=FMCSA-2012-0074-0039

referencing version 3.0 of “Carrier Safety Measurement System (CSMS) Methodology.” The latest version, 3.0.2 of June 2014, is available in the rulemaking docket and at

http://csa.fmcsa.dot.gov/Documents/SMSMethodology.pdf

In SMS, a carrier's performance is compared to other carriers in its safety event group every month. As a result, improved safety performance by other carriers could result in the carrier having higher (worse) percentiles without having committed any additional violations. In contrast, under the proposed SFD methodology, every month a carrier's performance would be compared to an absolute failure standard that would be set in regulation based on each safety event group. Because the absolute failure standard would not change from month to month, changes in another company's performance would not impact the motor carrier. The failure standard will only be changed after rulemaking by the Agency, with notice and comment. The carrier's SFD measure would reflect its own performance against the failure standard, and would not be impacted by other carriers' performance.

From the motor carrier's measures, percentile ranking, and intervention thresholds, FMCSA developed proposed SFD failure standards at higher levels of noncompliance with the FMCSRs and HMRs, which provide stronger correlations to previous crashes.

The proposed SFD failure standards would be equivalent to the measures that would determine a motor carrier unfit at the 96th percentile for the Unsafe Driving and HOS Compliance BASICs, that is, a person would know the carrier is in the worst 4 percent of carriers that have measurable (non-zero) data in the MCMIS. The proposed SFD standards would determine that a motor carrier is unfit at the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs. Likewise, a person would know the carrier is in the worst 1 percent of carriers that have measurable data in the MCMIS. A carrier's absolute BASIC performance measure in any given month,

not the carrier's percentile within a given month,

would be used to determine if the carrier failed the BASIC. A carrier with an absolute performance measure that equals or is greater than the failure standard proposed in this document for the carrier's safety-event group would fail that BASIC using only on-road safety data.

The term “crash” is synonymous to the term “accident” as defined in 49 CFR 390.5 and may be used interchangeably in this document. See 79 FR 59457, October 2, 2014.

Thus, the failure standards for a proposed unfit SFD would require significantly more evidence of non-compliance than the thresholds in SMS that the Agency uses to prioritize a carrier for interventions. The Agency's proposed approach would ensure that only the worst performing motor carriers would be issued a proposed unfit determination based solely on on-road safety performance data.

In addition, the proposed standards for an unfit SFD would be set at absolute values that would be higher measures (

i.e.

, poorer safety performance) than those used currently in SMS for interventions (see Table 3 below). The proposed SFD process would also require more inspections with violations—

i.e.

, 11 versus 3 to 5—to trigger a proposed SFD.

Failure standards would be established in each BASIC for several safety event groups. A carrier meeting or exceeding the failure standard in its safety event group would fail the BASIC.

The Crash Indicator BASIC and the Controlled Substances/Alcohol Compliance BASIC would be evaluated only during investigations, because the Crash Indicator BASIC currently does not include preventability determinations and controlled

substances and alcohol violations from on-road safety data would rarely meet the data sufficiency standards. Thus, these two BASICs would not be used to make a proposed unfit determination based on on-road performance data alone, although data relating to the Crash Indicator BASIC and Controlled Substances/Alcohol BASIC would certainly be used during investigations. To be proposed unfit based solely on on-road safety data, a motor carrier would have to meet or exceed the absolute failure standard established for its safety event group for two BASICs.

Further, only preventable crashes would be used in calculating an SFD. This differs from the current SFD process which only determines the preventability of crashes to contest a motor carrier's recordable crash rate after the SFD. As described below, crash data could trigger a failure in a BASIC during the investigative process only if a certified safety investigator makes a “preventability determination” on the crashes and the preventable crashes exceed the failure standard.

It is important to note that while the relative percentiles in SMS are not used in making Safety Fitness Determinations under this NPRM, the same data are used. Some groups have expressed concerns about that data, and many of those concerns are proactively addressed concerns about the SMS in the development of this SFD proposal. In addition to the differences noted above, it is important to point out that other concerns about the system including disparities for long-haul and short-haul carriers; differences for urban and rural motor carriers, and enforcement differences by the States have all been considered. The long and short haul differences are minimized by the combination (long-haul) and straight truck (short haul) segmentation. The impacts of urban and rural transportation are factored into the calculation of the Crash Indicator BASIC failure rates. Lastly, while enforcement differences exist between the States, the nature of the high failure standard in this rule is that the patterns of non-compliance for the carriers that are proposed unfit are not the result of these disparities but are the result of recurring non-compliance.

After a proposed unfit SFD, a motor carrier would have three different administrative proceedings available: (1) A review for material errors in assigning a proposed unfit SFD; (2) a review claiming unconsidered on-road performance inspection data; (3) a review after a request to operate under a compliance agreement. Consistent with current procedures, requests for one or more administrative reviews would not automatically stay a proposed unfit determination. After a final unfit determination, the motor carrier could request a review to resume operations.

The revised SFD methodology and rule would be used to identify and take legal action against unfit motor carriers that have failed to implement and maintain adequate safety management controls for achieving compliance with the FMCSRs and HMRs.

The Agency would maintain the current administrative review processes provided under § 385.15, would propose a compliance agreement procedure similar to the existing § 385.17 upgrade process for carriers with a proposed unfit SFD, and would add an opportunity to submit missing inspection data under § 385.16. FMCSA proposes to reduce the time for filing a petition for administrative review from the current 90 days to 15 days after the issuance of the proposed unfit SFD. Further, a new process, under § 385.18, explains the requirements for demonstrated corrective action and compliance agreements for entities with revoked registration due to an unfit safety rating.

Under this proposal, the Agency estimates in its separate Regulatory Evaluation that it would have proposed as unfit 3,056 motor carriers in 2011, about 2.5 times the number of proposed unfit SFDs relative to 1,232 under the current process, known as proposed unsatisfactory safety ratings. FMCSA estimates that the 3,056 proposed unfit SFD motor carriers would consist of:

• 262 motor carriers based solely upon on use of inspection data,

• 2,674 motor carriers based upon the result of investigations, and

• 120 motor carriers based on a combination of inspection and investigation data.

FMCSA then evaluated how many of these 3,056 motor carriers would have been in active service 12 months following a hypothetical final unfit determination in 2011 and found that most, 2,822 carriers, were active. The actual crash involvement and crash rates experienced by this population of 2,822 carriers over the course of the 12 months after the hypothetical final unfit determination provides a baseline and means of estimating benefits had these carriers been identified by the proposed process. The separate Regulatory Evaluation analyzing the costs and benefits of the proposed rule is available in the docket.

Application of the proposed method to data from a supporting analysis

identified 1,805 additional poor-performing carriers beyond those identified by the current SFD process, while the current SFD process identified 106 carriers that the proposed SFD method would not (1,017 carriers were identified by both the current and proposed methods). On net, of the 1,699 of these 1,805 carriers—the subset of carriers which remained in active operation during the twelve months following the date upon which each would have received a final unfit determination under the proposed rule—the switch from the current to the proposed method identifies carriers that were involved in 41 more fatal crashes, 508 more injury crashes, and 872 more tow-away crashes in those subsequent 12 months. The crash reduction elicited from these carriers constitutes the benefits of the rule.

“Estimating the Safety Impact of Proposed Safety Fitness Determination (SFD) Criteria,” FMCSA, May 2015.

The costs of the rulemaking are those incurred by:

(1) Drivers who were employed by additional carriers ordered out of service (OOS) who are now forced to seek new employment. It is estimated that 1,855 drivers would have been adversely affected in this manner annually.

(2) The additional carriers identified as deficient under the proposed SFD that opt to improve performance, thereby incurring costs to achieve compliance.

(3) FMCSA, resulting from information technology system update and modification expenses (estimated as a one-time cost of $3.0 million incurred in year 2017 under both Option 1 and Option 2).

Given (1) an assumed 2.17 percent annual increase in the carrier population, and hence the number of drivers, and (2) no change in real wages for drivers over time,

for the ten years from 2017 through 2026 the annualized costs (discounted at seven percent) of this proposed rule are estimated at $9.9 million. Were the real wages of drivers to increase by one percent annually, then the annualized cost from 2017 through 2026 rises to $10.6 million. Were drivers' real wages to increase by two percent annually, the annualized

cost of this proposed rule is $11.3 million.

This is a central assumption of the regulatory evaluation, and affects only the costs side of the net benefits projections. The Agency opted in this evaluation to consider costs under alternate 1% and 2% annual real wage growth assumptions to demonstrate the minimal degree to which potential growth in drivers' future real wages affects the net benefits of the rule.

Given (1) the estimated current monetized value of a statistical life component for a fatal crash of $10,885,000, for an injury crash of $393,000, and for a tow-away crash of $50,000, (2) annual increases in each of these values due to projected real growth of the value a statistical life of 1.18

percent, (3) additional fixed crash costs not projected to increase annually of $134,000 for each fatal crash, $60,000 for each injury crash, and $22,000 for each tow-away crash, (4) an assumed 2.17 percent annual increase in the carrier population and hence the number of crashes, (5) an estimated 52.8 percent improvement in the 16.1 percent of carriers placed out of service (OOS), and (6) an estimated 17.4 percent improvement in the 83.9 percent of carriers that opted to correct deficiencies and remain in service, for the ten years from 2017 through 2026, the annualized benefits of the rule (discounted at seven percent) would be $240.9 million.

The real growth rate of the VSL is in keeping with DOT's Office of the Secretary of Transportation guidance, available on the web at

http://www.dot.gov/sites/dot.gov/files/docs/VSL_Guidance_2014.pdf

. This growth factor represents real growth in the median hourly wage at a macroeconomic level and is not specific to drivers or the motor carrier industry. While real median hourly wages are projected to grow at 1.18% per year at a macroeconomic level, this assumption does not apply to drivers, as the real median hourly wage of drivers has declined or remained static in recent years. Nevertheless, the Agency considered a sensitivity analysis regarding real wage growth of drivers to demonstrate the costs of this proposed rule in the event that drivers' wages grow at 1 or 2 percent per year.

Comparisons of the crash rates of carriers identified as unfit under the current and proposed SFD are presented in Section 2 of this rulemaking's Regulatory Evaluation.

With $240.9 million in annualized benefits and $9.9 million in annualized costs with no projected real wage growth among drivers, the annualized net benefits of the proposed rule would be $231.1 million. Table 1 summarizes the Agency's annualized benefit, cost, and net benefit projections of this rule utilizing a 7 percent discount rate under a range of annual real wage growth assumptions of 0 to 2 percent.

Table 1—Annualized Net Benefits (7% Discount Rate) of the Rule From 2017 Through 2026

[in millions of 2013$]

Real wage growth

Benefits

$240.9

Costs

9.9

10.6

11.3

Net Benefits

231.1

230.4

229.6

Note: Compliance costs to carriers that improve performance to achieve compliance are not estimated.

Cumulative benefits, costs, and net benefits of the proposed rule are presented in Table 2 for not discounted, 3% discounted, and 7% discounted bases. For brevity, corresponding tables associated with the 1% and 2% annual real wage growth scenarios are not included here as the projections are nearly identical under these alternate assumptions, and the minimal differences resulting from utilization of positive real wage growth assumptions are demonstrated in the annualized values in the preceding table.

Table 2—Cumulative Benefits and Costs of the Rule From 2017 Through 2026

[in millions of 2013$]

Discount rate—>

Benefits

$2,290.9

$1,997.5

$1,692.0

Costs

92.2

81.0

69.2

Net Benefits

21,98.7

1,916.5

1,622.8

Note: Compliance costs to carriers that improve performance to achieve compliance are not estimated.

III. Legal Basis

The proposed rule would replace the current safety fitness rating methodology with new methodologies. The new methodologies incorporate on-road safety data and the results of safety investigations.

This rulemaking is based primarily on the authority of section 215 of the Motor Carrier Safety Act of 1984 (1984 Act),

which directs the Secretary of Transportation (Secretary) to determine whether an owner or operator is fit to operate safely commercial motor vehicles and to maintain by regulation a procedure for determining the safety fitness of an owner or operator. [49 U.S.C. 31144(a), (b)] Congress intended that the safety fitness procedure required by this section would supersede all previous rules regarding DOT safety fitness assessments and ratings of motor carriers.

FMCSA's authority to determine the safety fitness of owners or operators of CMVs was broadened with major amendments in 1998 by the Transportation Equity Act

for the 21st Century (TEA-21)

and in 2005 by the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU).

Another amendment was made by the Commercial Motor Vehicle Safety Enhancement Act of 2012, part of the Moving Ahead for Progress in the 21st Century Act (MAP-21).

Motor Carrier Safety Act of 1984, sec. 215, Pub. L. 98-554, Title II, 98 Stat. 2829, 2844-2845, Oct. 30, 1984, now codified at 49 U.S.C. 31144. See

http://www.gpo.gov/fdsys/pkg/STATUTE-98/pdf/STATUTE-98-Pg2829.pdf

(PDF page 16 of 25).

Sen. Report No. 98-424 at 16, May 2, 1984. Federal Highway Administration (FHWA) had been required to determine the safety fitness of for-hire motor carriers seeking operating authority from the Interstate Commerce Commission since 1967 when the Department of Transportation was created (see section 1653(e) of the Department of Transportation Act of 1966, Pub. L. 89-670, Oct. 15, 1966 (DOT Act)), see sec. 4(e) at

http://www.gpo.gov/fdsys/pkg/STATUTE-80/pdf/STATUTE-80-Pg931.pdf

(PDF page 4 of 20). FHWA codified in 49 CFR part 385 the for-hire motor carrier safety fitness regulations to address the DOT Act on June 17, 1982 (47 FR 26137) and revised them on May 19, 1983 (48 FR 22566). The 1984 Act expanded the Agency's safety fitness determinations to all motor carriers and owners and operators of CMVs operating in interstate commerce.

Sec. 4009(a) of the Transportation Equity Act for the 21st Century (TEA-21), Pub. L. 105-178, 112 Stat. 107, 405 (June 12, 1998). See

http://www.gpo.gov/fdsys/pkg/STATUTE-112/pdf/STATUTE-112-Pg107.pdf

(PDF page 299 of 403).

Sec. 4114(a) of the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Pub. L. 109-59, 119 Stat. 1144, 1725 (Aug. 10, 2005). See

http://www.gpo.gov/fdsys/pkg/STATUTE-119/pdf/STATUTE-119-Pg1144.pdf

(PDF page 582 of 835).

Sec. 32707(a), Div. C., Title II of the Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 813 (July 6, 2012). See

http://www.gpo.gov/fdsys/pkg/PLAW-112publ141/pdf/PLAW-112publ141.pdf

(PDF page 409 of 584).

As amended, the statute now requires the Secretary to: (1) Determine whether an owner or operator is fit to operate safely commercial motor vehicles, utilizing among other things the accident record of an owner or operator operating in interstate commerce and the accident 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 safety fitness determinations; (3) make such final safety fitness determinations 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.

49 U.S.C. 31144(a). See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31144.pdf

It also 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; (3) specific time frames within which the Secretary will determine whether an owner or operator is fit.

49 U.S.C. 31144(b).

This proposed rule also relies on 49 U.S.C. 31133, which gives the Secretary broad administrative powers to assist in the implementation of the provisions of the 1984 Act.

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. The Agency also has broad authority to inspect the equipment of a motor carrier or lessor, and to inspect and copy any record of a motor carrier or person controlling, controlled by, or under common control with, a motor carrier.

These powers are exercised to obtain the data used in the proposed new methodology for SFDs.

See Sen. Report No. 98-424 at 9 (May 2, 1984). The amended provisions of the Motor Carrier Safety Act of 1984 are now found in subchapter III of chapter 311 of 49 U.S.C. See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII.pdf

49 U.S.C. 504(c). See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleI-chap5-subchapI-sec504.pdf

The statute provides FMCSA authority to determine the safety fitness of both motor carriers and employers owning and operating CMVs and drivers or other employees operating CMVs. Cf. 49 U.S.C. 31132(2) and (3). See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31132.pdf

. This proposed rule involves the procedures and standards for determination of the safety fitness of only motor carriers and other employers that own or lease CMVs.

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.

MAP-21 grants FMCSA the authority to take similar action to revoke or suspend a motor carrier's safety registration on the same grounds.

FMCSA also has statutory authority to adopt a requirement that States receiving MCSAP grants enforce orders issued by FMCSA related to CMV safety and hazardous materials (HM) transportation safety.

49 U.S.C. 13905(f)(1)(B). See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleIV-partB-chap139-sec13905.pdf

49 U.S.C. 31134(c). See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31134.pdf

49 U.S.C. 31102(a) and (b). See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapI-sec31102.pdf

The Secretary has delegated the authority to carry out all of these functions to the FMCSA Administrator.

49 CFR 1.87(f).

IV. History of Past Actions

A. History of SFDs

The Federal Highway Administration (FHWA), the predecessor of FMCSA, promulgated Safety Fitness Procedures

in 1988 to determine the safety fitness of motor carriers through an onsite visit at the motor carrier's premises and to establish procedures to resolve safety fitness disputes with motor carriers, as required by the 1984 Act.

In 1991, FHWA issued an interim final rule

based on provisions of the Motor Carrier Safety Act of 1990 (1990 Act).

This interim final rule prohibited certain motor carriers rated unsatisfactory from operating CMVs in interstate commerce to transport more than 15 passengers or placardable quantities of HM starting on the 46th day after being found unfit. The regulation has been in effect since 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.

53 FR 50961 (Dec. 19, 1988), codified at 49 CFR part 385.

FHWA codified safety fitness regulations for motor carriers seeking operating authority from the Interstate Commerce Commission (for-hire motor carriers) in 49 CFR part 385 on June 17, 1982 (47 FR 26137) and revised them on May 19, 1983 (48 FR 22566). The 1984 Act expanded the Agency's safety fitness determinations from for-hire motor carriers to all motor carriers operating in interstate commerce.

56 FR 40802 (Aug. 16, 1991), Regulatory Identification Number (RIN) 2125-AC71.

Motor Carrier Safety Act of 1990, Pub. L. 101-500, sec. 15(b)(1), 104 Stat. 1218 (Nov. 3, 1990). See

http://www.gpo.gov/fdsys/pkg/STATUTE-104/pdf/STATUTE-104-Pg1213.pdf

. These provisions formerly found at 49 U.S.C. 5113 are now found at 49 U.S.C. 31144(c)(2) and (3) and (f) (as amended later). See

http://www.gpo.gov/fdsys/pkg/USCODE-2013-title49/pdf/USCODE-2013-title49-subtitleVI-partB-chap311-subchapIII-sec31144.pdf

56 FR at 40803.

In March 1997, in

MST Express

Department of Transportation

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.

108 F.3d 401 (D.C. Cir. 1997).

49 U.S.C. 31144.

In response, FHWA issued a second interim final rule in May 1997 incorporating the safety fitness rating

methodology into the safety fitness regulations

and a companion NPRM published the same day

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.

62 FR 28807 (May 28, 1997) adding appendix B to 49 CFR part 385. RIN 2125-AC71.

62 FR 28826 (May 28, 1997), discussion of 1991 interim final rule comments at page 28827, RIN 2125-AC71.

In November 1997, FHWA published a final rule 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.

These changes withstood judicial review in 1999 in

American Trucking Associations, Inc.

U.S. DOT.

The court in the

ATA

case gave deference to the FHWA's interpretation of its statutory directive as it related to the level of specificity required in regulation and related interpretive guidance. On the reason for the Agency's use of 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.”

62 FR 60035 (Nov. 6, 1997). RIN 2125-AC71.

63 FR 62957 (Nov. 10, 1998). RIN 2125-AC71.

166 F.3d 374 (D.C. Cir. 1999).

166 F.3d at 378-380. See also

Animal Legal Defense Fund, Inc.

Glickman

, 204 F.3d 229, 235 (D.C. Cir. 2000) and cases therein cited.

In 1998, TEA-21 added a prohibition 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, 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, starting on the 61st day after being found unfit.

It also prohibited Federal agencies from using those owners and operators that were prohibited from operating to provide interstate transportation of non-HM freight. 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.

Section 4009 of the Transportation Equity Act for the 21st Century, Pub. L. 105-178, 112 Stat. 107, at 405, June 9, 1998. Section 4009 added the additional prohibition and recodified the statutory prohibitions of using unsatisfactory-rated motor carriers in 49 U.S.C. 5113 to 49 U.S.C. 31144.

65 FR 50919 (Aug. 22, 2000).

FMCSA published several additional amendments in 2000.

These changes updated the list of acute and critical regulations

to conform it to changes in FMCSA and the Pipeline and Hazardous Materials Safety Administration (PHMSA) regulations. In 2007, the Agency further revised the safety fitness procedures regulations and appendix B to implement SAFETEA-LU statutory amendments.

65 FR 11904 (Mar. 7, 2000).

FHWA proposed acute and critical regulations for determining safety fitness in 59 FR 47203 (Sept. 14, 1994) and made them final in 62 FR 28807 (May 28, 1997).

72 FR 36760 (July 5, 2007).

In 2007, in response to a motorcoach crash with numerous fatalities, 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 actions. A copy of NTSB's letter closing the recommendation is also in the docket.

Report No. NTSB/HAR-07/01, PB2007-916202, Notation 7774C, Adopted Feb. 21, 2007. You may download the report by visiting

http://www.ntsb.gov/investigations/AccidentReports/Reports/HAR0701.pdf

on the Internet. H-07-003: “To protect the traveling public until completion of the Comprehensive Safety Analysis 2010 Initiative, immediately issue an Interim Rule to include all FMCSRs in the current CR process so that all violations of regulations are reflected in the calculation of a carrier's final rating.” See also NTSB recommendations H-99-006 “Change the safety fitness rating methodology so that adverse vehicle and driver performance-based data alone are sufficient to result in an overall unsatisfactory rating for the carrier” and H-12-017 “Include safety measurement system 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.”

B. Analytical Basis for the Proposed Changes

FMCSA proposes to base SFDs on data from driver/vehicle inspections and investigations. Three reports regarding the Agency's existing SMS form the technical basis for the proposed methodology for this rulemaking. Two of the reports were prepared by FMCSA. The third report was developed and published by the American Transportation Research Institute (ATRI). Copies of all three reports are in the docket for this document.

The most recent report is titled “Carrier Safety Measurement System (CSMS) Methodology-Version 3.0.2” (June 2014).

It provides the details of the measurement system currently used for identifying unsafe carriers and prioritizing and selecting them for interventions under the Compliance, Safety, Accountability (CSA) initiative.

John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Methodology-Version 3.0.2” FMCSA, June 2014.

The second report, “Carrier Safety Measurement System (CSMS) Violation Severity Weights” (December 2010),

involved quantifying the relative crash risk of violations of the FMCSRs and HMRs. The results from this study were used to assign risk-based weights to driver/vehicle inspection violations in the SMS which would also be used in the proposed methodology for determining safety fitness. (See proposed appendix B to part 385.)

John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Violation Severity Weights,” December 2010.

The third report, a study titled, “Compliance, Safety, Accountability: Evaluating a New Safety Measurement System and Its Impacts” (December 2012), ATRI, involved an analysis of carriers assessed by BASICs. The results from this study confirmed that SMS is better at targeting carriers and identifying safety problems. In addition, the ATRI study indicated that the number of “alerts” a carrier has is the best indicator of future crashes.

Additionally, the Agency's CSA Operational Model Test

and additional analysis by the University of Michigan Transportation Research Institute

and FMCSA indicate that

SMS is more effective than SafeStat, the Agency's previous intervention prioritization system, because it improves identification of high-risk carriers and provides information for determining the specifics of their safety performance problems.

The CSA operational model test was a two-phase, 30-month (February 2008 to December 2010) field test to assess the validity, efficiency, and effectiveness of the CSA operational model.

Green and Blower, “Evaluation of the CSA 2010 Operational Model Test,” FMCSA, August 2011, Report No. MC-RRA-11-019,

http://csa.fmcsa.dot.gov/Documents/Evaluation-of-the-CSA-Op-Model-Test.pdf

V. Existing Safety Monitoring and Data Quality Programs

The CSA program, implemented in December 2010, is FMCSA's current initiative to improve large truck and bus safety. It is a set of enforcement and compliance tools that allow FMCSA and its State partners to address the safety and compliance problems of motor carriers before crashes occur. There are two elements of the Agency's existing CSA Program that are part of the Agency's safety monitoring programs: (1) The Safety Measurement System (SMS); and (2) the use of a varied set of interventions on motor carriers identified by SMS. FMCSA has provided significant information about the CSA program and its initiatives through public listening sessions,

Federal Register

notices, a comments docket, and a dedicated Web site. As a result, this rulemaking provides only summary level information about CSA to explain its relationship to the proposed changes in the SFD process.

For more detailed information, please go to the CSA Web site at

http://csa.fmcsa.dot.gov/

and review documents in the program's docket at

www.regulations.gov

, docket number FMCSA-2004-18898. In a one year period from 2012 to 2013, there were 46 million visits to the SMS Web site. Therefore, FMCSA believes that the industry and the public are already very familiar with this system and the information it provides.

The remaining element of the Agency's existing safety monitoring programs is the compliance review or investigation that results in a safety rating.

A. Safety Measurement System (SMS)

The SMS is an automated system that runs monthly and measures on-road safety performance of motor carriers to: (1) Identify candidates for intervention, (2) identify specific safety problems, and (3) monitor whether a carrier's performance is improving or getting worse. SMS groups the safety performance data of motor carriers and drivers into seven BASICs. The BASICs are:

1. Unsafe Driving BASIC

The Unsafe Driving BASIC addresses the requirement to avoid driving a CMV in a dangerous or careless manner, and it includes driving and parking rules for drivers transporting HM. Some safety violations that may cause a motor carrier to rank poorly in this BASIC include speeding, reckless driving, improper lane change, distracted driving, failure to wear safety belt while operating a CMV, and texting or using a mobile telephone while operating a CMV.

2. Hours of Service (HOS) Compliance BASIC

The HOS Compliance BASIC addresses the requirements to obey the HOS rules and not to drive when fatigued. This BASIC includes violations of the regulations pertaining to maximum driving time during the work day, maximum on-duty time that may be accumulated before driving is prohibited during the work day and during the work week, and preparation in proper form and manner and retention of records of duty status (RODS) as they relate to HOS requirements. Safety violations that may cause a motor carrier to rank poorly in this BASIC include a driver operating more hours than allowed under HOS regulations, failure to prepare and maintain RODS and falsification of RODS.

3. Driver Fitness BASIC

The Driver Fitness BASIC addresses the requirements concerning commercial driver's licenses (CDLs) and disqualifying offenses for persons operating CMVs, as defined in 49 CFR 383.5. This BASIC also captures violations of the regulations for driver qualifications, including medical qualifications for interstate drivers of CMVs, as defined in 49 CFR 390.5. High scores in this BASIC are an indication that a carrier has allowed the operation of CMVs by drivers who are not qualified due to a lack of knowledge, skills, medical qualifications, or a valid license.

4. Controlled Substances/Alcohol BASIC

The Controlled Substances/Alcohol BASIC addresses the requirements for controlled substances and alcohol testing for CDL holders. Safety violations that may cause a motor carrier to rank poorly in this BASIC include a driver found to be in possession of alcoholic beverages or operating under the influence of a controlled substance.

5. Vehicle Maintenance BASIC

The Vehicle Maintenance BASIC addresses the requirements for equipment inspection, proper maintenance, and repair of a CMV, and the prevention of shifting loads and spilled or dropped cargo. Proper maintenance includes ensuring that lamps or reflectors are working, brakes are in proper working condition, and tires are not dangerously worn. Some safety violations that may cause a motor carrier to rank poorly in this BASIC are operating a vehicle with inoperative brakes, lights, or other mechanical defects; failure to make required repairs; improper load securement to prevent shifting upon or within the CMV to such an extent that the CMV's stability or maneuverability is adversely affected; or operating a vehicle placed OOS for safety deficiencies.

6. HM Compliance BASIC

The HM Compliance BASIC addresses the Federal safety regulations related to the packaging, transportation, and identification of HM. In the event of a crash or spill, the HM Compliance BASIC also covers the proper communication of the hazard of the cargo on board. The general public is subject to a greater safety risk if HM is involved in a motor carrier crash; and unmarked or poorly marked HM cargo can result in less effective emergency response, as well as injuries and fatalities for emergency responders and others. At present, the HM Compliance BASIC scores can be seen only by enforcement personnel and by a motor carrier that accesses its own safety profile; it is not publicly available. The public can, however, see information on the number and types of HM violations involving the motor carrier.

7. Crash Indicator BASIC

The Crash Indicator BASIC identifies histories or patterns of crash involvement, such as frequency and severity. It is based on information from State-reported crashes that meet recordable crash standards. Multiple State-reported crashes raise the percentile rank of the Crash Indicator BASIC, which signals potential safety problems. The SMS cannot currently factor in the role of the carrier in causing the crash—or crash preventability. (See discussion of crashes below.) At present, the Crash Indicator BASIC can be seen only by enforcement personnel and by a motor carrier that accesses its own safety profile; it is not publicly available. The public can, however, see information on the number and severity of crashes involving the motor carrier.

B. Interventions

Interventions are a suite of enforcement tools ranging from warning letters to comprehensive investigations that provide carriers with the information necessary to understand

their safety problems and to change unsafe behavior.

Currently, when a motor carrier's SMS scores meet or exceed established intervention thresholds the Agency prioritizes it for investigations or enforcement. The SMS intervention thresholds are as follows:

Table 3—Intervention Thresholds for SMS

Basic

•

SMS Intervention thresholds

Passenger

All others

Unsafe Driving, HOS, Crash Indicator

Greater than or equal to (≥) 50%

≥60%

≥65%

Driver Fitness, Controlled Substances/Alcohol, Vehicle Maintenance

≥65%

≥75%

≥80%

≥80

≥80%

It is important to note that the thresholds FMCSA currently uses to select carriers for an intervention, using SMS, are not the same measures that are being proposed in this NPRM for the SFD failure standards. (See Section 2.4 of proposed appendix B to part 385 below.)

C. Current SFD Process

SFDs are currently determined based on data collected during a CR or other investigation. The existing SFD process uses six factors to rate carriers' safety performance. Portions of the regulations (the FMCSRs and the HMRs) with similar characteristics are grouped together into six factors:

Factor 1 General—Parts 387 and 390

Factor 2 Driver—Parts 382, 383, and 391

Factor 3 Operational—Parts 392 and 395

Factor 4 Vehicle—Parts 393 and 396

Factor 5 HM—Parts 171, 177, 180, and 397

Factor 6 Accident

factor—Recordable accident rate per million miles

The term “crash” is synonymous to the term “accident” as defined in 49 CFR 390.5 and may be used interchangeably in this document. See 79 FR 59457, October 2, 2014.

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 VI.

• “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 according to 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. Patterns of noncompliance with HOS are 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.

If any of the six factors is assessed one point, then that factor is rated as “conditional.” If any of the six factors is assessed two points, then 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 4 below:

Table 4—Current SFD Rating Table

Factor ratings

Unsatisfactory

Conditional

Overall safety rating

2 or fewer

Satisfactory

More than 2

Conditional

2 or fewer

Conditional

More than 2

Unsatisfactory

2 or more

0 or more

Unsatisfactory

The Agency's current SFD process is resource-intensive and reaches only a small percentage of motor carriers. In FY 2012, FMCSA and its State partners conducted approximately 17,000 ratable reviews out of a population of more than approximately 525,000 active motor carriers. A ratable review is one that could potentially result in a conditional or unsatisfactory safety rating. Table 5 presents the distribution of ratable reviews conducted.

Motor Carrier Safety Progress Report, FMCSA, as of March 31, 2013. Under the “Carrier Reviews” section, figures are summed to obtain counts in Table 5. Accessed April 29, 2015 at

https://cms.fmcsa.dot.gov/safety/data-and-statistics/motor-carrier-safety-progress-report-33113

Table 5—Distribution of Ratable Investigations Types in FY 2012

Investigation type

Number

Ratable Full CRs/Comprehensive On-Site Investigations

6,641

Ratable Focused CRs/Focused On-Site Investigations

10,361

Total

17,002

Of the 17,002 ratable reviews conducted in FY 2012, 1,013 resulted in a proposed unsatisfactory safety rating, while an additional 3,618 resulted in a proposed or final safety rating of conditional.

The Agency concludes that changes to the SFD process are needed for many reasons. First, the current SFD methodology evaluates a motor carrier's compliance using only a limited range of inspection data. Additionally, the current process does not integrate all of the data that is available in MCMIS. Over 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 on a specific date. The Agency's MCMIS database reflects safety ratings dating back to 1986, and many of the ratings are not likely to reflect the carriers' current safety compliance.

Third, the current SFD process is not designed to continually monitor motor carrier on-road safety data. In addition, the assignment of a “satisfactory” safety rating implies to the public, correctly or not, that the Agency has approved the current operations of a motor carrier, when actually FMCSA has merely rated the operations for the specific period covered by the CR. The assigned safety rating thus may not reflect the company's current compliance and could be misleading to those who might interpret it as a reflection of a motor carrier's current safety status.

Fourth, under the current SFD process, a motor carrier may continue to operate indefinitely with a conditional rating even if a ratable review reveals breakdowns in safety management controls in multiple areas. For example, a motor carrier with noncompliance documented by an investigation 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, still allows the motor carrier to continue operating.

Fifth, as noted above, the current regulations only allow the Agency and its State partners to assess or rate the safety fitness of a small population of motor carriers on an annual basis. This proposal expands the number of assessed and rated carriers.

Lastly, FMCSA has two open NTSB recommendations related to changing the safety fitness methodology on which the Agency has agreed to take action:

These recommendations are available through the NTSB Safety Recommendations-Search and View Web pages. Retrieved April 6, 2015, from:

http://www.ntsb.gov

• H-99-006: Change the safety fitness rating methodology so that adverse vehicle and driver performance-based data alone are sufficient to result in an overall unsatisfactory rating for the carrier.

• H-12-017: Include safety measurement system 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.

For these reasons, the Agency proposes to make the changes to the SFD process reflected in this NPRM.

D. Data Quality Program

Over the past several years, the Agency has significantly improved the quality of safety data on motor carriers and considers the State-reported driver and vehicle inspection and crash data to be reliable. All of the States receive MCSAP grant funds from FMCSA and are required to establish programs to “ensure that . . . accurate, complete, and timely motor carrier safety data is collected and reported” and to participate in a national motor carrier safety data correction system.

FMCSA sets a goal for States to provide standard, basic information about large truck and bus crashes within 90 days of the crash event and results of driver/vehicle inspections within 21 days. In addition, FMCSA implemented a comprehensive set of data quality initiatives to assist the States in improving the accuracy, timeliness, completeness, and consistency of crash and inspection data. The process provides the States and FMCSA with a monthly report that summarizes the latest performance results and tracks progress toward meeting FMCSA's goals. Also, evaluation teams made up of technical experts from the DOT's John A. Volpe National Transportation Systems Center and FMCSA conduct reviews of the data collection processes for State-reported crash and inspection data. These reviews identify areas for potential process improvement. These initiatives have resulted in a significant improvement in the quality of State-reported data over the past several years.

49 U.S.C. 31102(b)(1)(Q). See also (1) section 4128 of SAFETEA-LU, Pub. L. 109-59, 119 Stat. 1144, 1742 (Aug. 10, 2005) (providing for State Safety Data Improvement Program Grants “to improve the accuracy, timeliness, and completeness of . . . safety data”), (2) section 32603(c) of Moving Ahead for Progress in the 21st Century Act (MAP-21), Pub. L. 112-141, 126 Stat. 405 (July 6, 2012) (additional State Safety Data Improvement grant funding was provided for fiscal years 2013 and 2014), and (3) 49 CFR 350.201(s), 350.211, 350.327(b)(3) and (5).

In addition, FMCSA developed the DataQs online system to facilitate data corrections and to track corrective actions.

DataQs provides a single, Web-based location that allows the industry to file and monitor Requests for Data Review (RDRs) concerning Federal and State data released to the public. Through the DataQs system, data concerns are forwarded automatically to the appropriate office for resolution, including State partners. The system also allows filers to monitor the status of each request. Requests for changes to data based on adjudicated citations are also processed through the DataQs system.

FMCSA established the DataQs system in accordance with the Office of Management and Budget (OMB) Guidelines for Implementing Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554). OMB directed Federal agencies subject to the Paperwork Reduction Act (44 U.S.C. Chapter 35) to establish and implement written guidelines to ensure and maximize the quality, utility, objectivity, and integrity of the information they disseminate.

FMCSA also evaluates State-reported crash and inspection data and releases evaluation data to the public on a quarterly basis on the FMCSA Web site. The evaluation uses the State Safety Data Quality map to rate the States on the completeness, timeliness, accuracy, and consistency of State-reported crash and inspection data reported to MCMIS (

http://ai.fmcsa.dot.gov/DataQuality/dataquality.asp

). As of October 2015, only the District of Columbia and Massachusetts had a “poor” rating and two States (Connecticut and Maryland) have “fair” ratings. All other States have “good” ratings.

Accessed on April 6, 2015.

VI. Proposed SFD Changes

A. Numbers of Inspections and Violations Used in This Proposal

FMCSA uses 11 inspections as the minimum number for several different analyses and considerations in Tables 6 through 16. Table 6 below is provided to clarify the various applications of the 11-inspection requirement. To receive a safety fitness determination based on inspections a motor carrier must have had at least 11 inspections in the previous 24 months.

Table 6—Number of Inspections With Violations Required

Action

Minimum number

of inspections

required

Minimum number

of inspections

with violations

required

Explanation

Assess

If a motor carrier has 11 inspections in MCMIS, the Agency has sufficient information to assess it.

Data Sufficiency for Potential to Fail a BASIC

This is the data threshold that must be met before a carrier could fail a BASIC.

B. Only One SFD—Unfit

In this NPRM, FMCSA proposes to eliminate the current three-tier rating system (

i.e.

, satisfactory-conditional-unsatisfactory). FMCSA proposes to change its SFD system to a single determination—unfit. The Agency has statutory discretion to establish the nomenclature for safety fitness determinations.

In addition, the safety fitness statute requires FMCSA to determine only “whether an owner or operator is fit” to continue to operate on the Nation's roadways, and it prescribes specific consequences for motor carriers found to be not fit. It prohibits such carriers from engaging in interstate transportation

or transportation that affects interstate commerce.

It also prohibits any U.S. Government agency from using such carriers for transportation.

49 U.S.C. 31133(a)(10), 31144(b).

49 U.S.C. 31144(c)(1)-(3).

49 U.S.C. 31144(c)(5).

49 U.S.C. 31144(f).

This change to the SFD process would address some of the shortcomings of the current safety rating system. Most importantly, it would help focus the Agency's resources on removing unsafe carriers from the Nation's highways. In addition, it would eliminate the misperception that a satisfactory rating means that FMCSA approves of the current operations of a motor carrier. FMCSA believes that the term “unfit” conveys a clearer and more accurate message to the public than the term “unsatisfactory.” These changes better align the safety fitness regulations with the Agency's mission to remove unsafe operators from the Nation's roadways. At the same time, the change makes clear that the Agency will not devote its limited enforcement resources toward reviews initiated for the sole purpose of assigning a more positive safety rating label to carriers that are not prohibited from operating in interstate or intrastate commerce.

C. Three Paths to “Proposed Unfit”

Based on the Agency's experience with SMS and interventions, FMCSA believes that integration of on-road safety data into the SFD process would improve the safety evaluation of motor carriers and the identification of unsafe motor carriers as unfit. Under this proposal, unfit determinations could be based on one of three methodologies.

• Unfit Method 1: Carrier with Two or More Failed BASICs from On-Road Safety Performance

• Unfit Method 2: Carrier with Violations of the Revised Critical and Acute Regulations Identified Through an Investigation

• Unfit Method 3: Combination of Inspection Data and Investigation Results

Figures 1, 2, and 3 illustrate how, under this proposal, carriers could receive proposed unfit safety fitness determinations. This information is also provided in appendix B. Extensive detail for each method is provided below. These paths to a proposed unfit determination are not mutually exclusive. For example, even though an owner or operator regularly undergoes the monthly assessment under Unfit Method 1, at any time, if circumstances warrant, FMCSA can conduct an investigation under Unfit Method 2 to determine whether the owner or operator is fit.

EP21JA16.000

EP21JA16.001

1. Unfit Method 1: Carrier With Two or More Failed BASICs From On-Road Safety Performance Is Proposed Unfit

Under Unfit Method 1, violations recorded on inspections would be sorted into the five BASICs for which on-road safety data is considered under the proposed SFD process: Unsafe Driving, HOS Compliance, Driver Fitness, Vehicle Maintenance, and HM Compliance. (Under the proposed SFD process, a motor carrier can fail the Crash Indicator BASIC or the Controlled Substances and Alcohol BASIC only based upon investigation findings under Unfit Method 2.)

The proposed rule would require 11 or more inspections with 1 or more violations in each, in a single BASIC, before a carrier could fail the BASIC for SFD purposes. The Agency proposes 11 or more inspections with violations, rather than the minimum of 3 to 5 inspections with violations required for SMS intervention, because this higher number provides a higher confidence level in assessing safety fitness, which is appropriate due to the seriousness of the regulatory consequences.

While more inspections with violations might be an even stronger indicator of non-compliance, as was recommended by the Government Accountability Office (GAO) for the Agency's SMS,

a significantly greater data requirement—

e.g.,

20 inspections with violations—would mean that an unreasonably large percentage of carriers would never reach this threshold in a 24-month period. FMCSA believes that a more than twofold difference from the higher SMS inspection requirement is sufficient and appropriate for SFD. The Agency's analysis indicates that requiring 11 or more inspections with 1 or more violations in each increases the proportion of medium to large carriers falling within the “SFD eligible” population, compared to a 5 or more inspection requirement, but still does not result in small motor carriers escaping scrutiny. The Agency notes that carriers with 10 or fewer inspections with violations are still subject to safety fitness determinations under Unfit Method 2. The Agency also notes that raising the inspection requirement above 20 violations as GAO recommends for SMS as shown in tables 8 to 13, the groups of 11 to 20 inspections showed the highest crash risk compared to carriers with more inspections.

“Modifying the Compliance, Safety, Accountability Program Would Improve the Ability to Identify High Risk Carriers,” U.S. Government Accountability Office, Report No. GAO-14-114, February 3, 2014. See

http://www.gao.gov/products/GAO-14-114

, accessed April 6, 2015.

Table 7 illustrates the number of carriers that have 11 or more inspections with 1 or more violations in each in a 24-month period and, therefore, would have sufficient data to be evaluated for an SFD, compared to carriers with 5 or more inspections.

Table 7—Number of Carriers That Have 11 or More or 5 or More Inspections in a 24-Month Period

Power units

11+ inspections

(SFD)

Number of

carriers

Percent of total shown

(percent)

5+ inspections

(intervention)

Number of

carriers

Percent of total shown

(percent)

5 or fewer

31,957

42.1

86,486

59.5

6 to 15

21,885

28.9

32,974

22.7

16 to 50

14,843

19.6

18,122

12.5

51 to 500

6,558

8.6

7,058

4.9

501+

585

0.8

597

0.4

Total

75,828

100

145,237

100

The weight of a safety event would decrease over time, with more recent events having a greater impact on a motor carrier's BASIC scores than events from the more distant past. Under this proposal the Agency would not use events older than 24 months in determining a motor carrier's safety performance measure.

FMCSA emphasizes that a carrier that receives a proposed unfit determination under Method 1 may have the opportunity to enter into a compliance agreement which could provide it an opportunity to improve its safety performance and avoid a final determination of unfit. Therefore, the increased scrutiny that comes with poor results from 11 inspections with violations within 24 months does not mean the carrier would automatically face an operations out-of-service order. It would be required, however, to correct deficiencies in its safety management controls sooner than it would if the Agency waited for a larger number of inspections. The Agency requests comments on the minimum number of inspections and minimum number of violations that should be considered in making a proposed unfit determination.

Proposed Failure Standards for Unfit Method 1

The proposed failure standard for an SFD would be set at an absolute value that would equate to higher levels (

i.e.

, poorer safety performance) than those used in SMS for interventions. That absolute value—a figure based on time- and severity-weighted violations divided by the number of relevant inspections or vehicles for different safety event groups—would be set at the time when the SFD rule becomes final.

The Agency's goal is to establish failure standards that would identify motor carriers with a high crash risk. However, the Agency must take into consideration existing enforcement resources and strike a balance between the population identified and the ability to handle the associated workload.

In considering what absolute failure standards to propose, the Agency considered four options, based on different SMS percentiles. The standards considered equate roughly to the 95th, 96th, 98th, and 99th percentiles for all motor carriers with 11 or more inspections with violations for the 24-month period that ended on March 22, 2013. The proposed failure standards for each BASIC, as calculated through inspections, are presented in Tables 8 through 13. But the standards in the final rule will be based on a more current data and calculation completed closer to the final rule's publication date.

For purpose of analysis in this rulemaking, the Agency proposes to use the absolute failure standards that equate to the 99th percentile for the Driver Fitness, Vehicle Maintenance, and HM Compliance BASICs. This failure standard is equivalent to the absolute value that defines the worst 1 percent of motor carriers with 11 or more inspections, each with 1 or more violations, in a BASIC as of the date of the calculation—March 22, 2013. (See also Table 16 below.)

The failure standard for Unsafe Driving and HOS Compliance would be more stringent than the other BASICs and require a higher level of compliance. A measure equivalent to the 96th percentile would be used for the Unsafe Driving and HOS Compliance BASICs. FMCSA based this standard on the stronger correlation of these BASICs to previous crashes.

During CSA development, the Agency discussed having these two BASICs be “stand-alone” BASICs in the SFD rulemaking;

meaning that failing even one of these two BASICs would result in a proposed unfit SFD. However, based on both the Agency's analysis for this proposal and the ATRI research, mentioned above, using more BASICs to determine a carrier's safety fitness has been shown to be a better measure of the overall safety performance of the carrier.

John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Violation Severity Weights,” December 2010.

See 72 FR 62293, at 62299, (Nov. 2, 2007), Comprehensive Safety Analysis 2010 Initiative, Notice of public listening session.

The Crash Indicator BASIC and the Controlled Substances/Alcohol Compliance BASIC would be examined only during investigations, because the Crash Indicator BASIC currently does not include preventability determinations, and controlled substances and alcohol violations from on-road safety data would rarely meet the data sufficiency standards.

Failure standards for each of the five BASICs relevant to Unfit Method Number 1 would be established for up to four different safety event groups. (A full explanation of safety event groups is provided below.) A carrier meeting or exceeding the failure standard in its safety event group in the specific BASIC would fail that BASIC for SFD purposes. Tables 8 through 16 below show the options FMCSA considered for each BASIC.

In SMS, a carrier's performance is compared every month to other carriers in its safety event group. As a result, improved performance by other carriers could result in the carrier having higher (worse) percentiles, without the carrier having committed any additional violations. By contrast, in the proposed SFD process, each month a carrier's performance would be compared to an absolute failure standard that would be set in regulation based on each safety event group. Because the absolute failure standard would not change by the month but instead would only change after rulemaking by the Agency, with notice and an opportunity to comment, changes in another company's performance would not impact the motor carrier. The carrier's measure would reflect its own performance against the failure standard.

Tables 8 through 13 below show proposed failure standards that would apply for each of the five BASICs used in this methodology. For all of the BASICs except Unsafe Driving, the threshold would be determined by

dividing the number of time- and severity-weighted violations by the number of relevant inspections. The specific numerators and denominators that would be used to determine the proposed failure standard for each BASIC are identified in appendix B. For purposes of clarifying and analyzing this proposal only, failure standards are presented below based on the data available as of March 22, 2013. But the standards in the final rule will be based on a more current calculation completed closer to the final rule's publication date.

Combination vehicle segments include those motor carriers that operate either truck tractors or motor coaches.

Straight truck segments include all carriers that operate straight trucks, HM cargo tank trucks, or school buses/mini-buses/limousines/vans with capacity of 9 or more passengers. These different types of power units are defined on the FMCSA Registration/Update(s) (Application for USDOT Number/Operating Authority Registration), Form MCSA-1. See

http://www.regulations.gov/#!documentDetail;D=FMCSA-1997-2349-0195

Table 8—Unsafe Driving Failure Standards (Generally, Weighted Violations Divided by Power Units—See Appendix B, Section 2.4)—Combination

Vehicle Segment—Alternatives Considered

Safety Event Group

(number of inspections with unsafe driving violations)

BASIC Failure standard equivalent to

95%

BASIC Failure standard equivalent to

96%

BASIC Failure standard equivalent to

98%

BASIC Failure standard equivalent to

99%

11 to 21

12.74

14.21

18.54

27.25

22-57

8.77

9.58

13.5

18.98

58-149

5.47

6.26

8.10

9.71

150+

2.77

2.80

2.90

3.00

Table 9—Unsafe Driving Failure Standards: (Weighted Violations Divided by Power Units) Straight Truck

Segment—Alternatives Considered

Safety event group

(number of inspections with unsafe driving violations)

BASIC Failure standard equivalent to

95%

BASIC Failure standard equivalent to

96%

BASIC Failure standard equivalent to

98%

BASIC Failure standard equivalent to

99%

11 to 18

8.19

9.64

11.47

15.99

19-49

4.59

5.12

7.31

12.05

50+

1.36

1.47

1.89

2.05

Table 10—Hours of Service Compliance Failure Standards (Weighted Violations Divided by Driver Inspections)—Alternatives Considered

Safety event group

(number of driver inspections)

BASIC Failure standard equivalent to

95%

BASIC Failure standard equivalent to

96%

BASIC Failure standard equivalent to

98%

BASIC Failure standard equivalent to

99%

11 to 20

3.88

4.15

4.94

5.65

21-100

2.94

3.13

3.66

5.21

101-500

2.09

2.20

2.44

2.69

501+

1.46

1.54

1.73

1.91

Table 11—Driver Fitness Failure Standards (Weighted Violations Divided by Driver Inspections)—Alternatives Considered

Safety event group

(number of driver inspections)

BASIC Failure standard equivalent to

95%

BASIC Failure standard equivalent to

96%

BASIC Failure standard equivalent to

98%

BASIC Failure standard equivalent to

99%

11 to 20

1.54

1.68

2.19

2.74

21-100

0.78

0.86

1.11

1.39

101-500

0.29

0.31

0.39

0.50

501+

0.14

0.15

0.19

0.24

Table 12—Vehicle Maintenance Failure Standards (Weighted Violations Divided by Vehicle Inspections)—Alternatives Considered

Safety event group

(number of vehicle inspections)

BASIC Failure standard equivalent to

95%

BASIC Failure standard equivalent to

96%

BASIC Failure standard equivalent to

98%

BASIC Failure standard equivalent to

99%

11 to 20

14.19

14.93

16.94

18.79

21-100

11.96

12.62

14.38

16.12

101-500

8.84

9.18

10.36

11.82

501+

6.54

6.77

7.9

8.91

Table 13—HM Compliance Failure Standards (Weighted Violations Divided by Placarded HM Inspections)—Alternatives Considered

Safety event group

(number of placarded HM inspections)

BASIC Failure standard equivalent to

95%

BASIC Failure standard equivalent to

96%

BASIC Failure standard equivalent to

98%

BASIC Failure standard equivalent to

99%

11 to 20

4.18

4.34

5.55

6.87

21-100

2.81

2.99

3.65

4.82

101-500

1.86

1.96

2.34

2.56

501+

1.33

1.46

1.83

1.95

The percentage of carriers and crash rates of carriers under FMCSA's jurisdiction are presented in Tables 14 and 15 below for the purpose of comparison. Table 14 displays the frequency with which motor carriers are identified as “unfit,” based on the number of power units (PU) the carrier operates. Table 15 show the crash rates for the same motor carriers.

Table 14—Distribution of Proposed Unfit Determinations by Power Units (PU) Groups for Each Alternative Considered

Alternatives considered

5 or fewer PU

(%)

6 to 15 PU

(%)

16 to 50 PU

(%)

51 to 500 PU

(%)

501+ PU

(%)

General Population of Carriers with Recent Activity * as of March 2013 (Baseline for comparison)

82.8

11.2

4.4

1.5

0.1

Option 1: Equivalent to 95th percentile for Unsafe Driving and HOS and 98th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)

63.1

22.2

10.8

3.5

0.3

Proposed Option: Equivalent to 96th percentile for Unsafe Driving and HOS and 99th percentile for Driver Fitness, Vehicle Maintenance, and HM (based on 11+ inspections with violations)

63.9

22.3

10.2

3.3

0.3

* Recent Activity means a motor carrier has had any recorded activity in the past 36 months related to an inspection, crash, investigation (including new entrant audit), MCS-150 update, registration activity, insurance or Unified Carrier Registration payment, process agent update or name/ownership change. Also, any carrier with active for-hire operating authority is considered as having “recent activity.” Using this definition, FMCSA intends to remove from its motor carrier census motor carriers with “active status” that have left the industry years ago but still remain in the census because they never notified FMCSA that they stopped operating CMVs.

Both considered options noted above result in inclusion of a smaller proportion of small (5 or fewer power units) carriers than small carriers represent nationally. Therefore, neither of these options is numerically biased against small carriers, as demonstrated in Tables 15 and 16.

Table 15—Crash Rates of Carriers Determined To Be Unfit—by Alternatives Considered

[in crashes per 100 power units (PU)]

Alternatives considered

5 or fewer PU

6 to 15 PU

16 to 50 PU

51 to 500 PU

501+ PU

General Population of Carriers with Recent Activity as of March 2013 (Baseline for comparison)

2.2

2.3

2.4

2.2

1.8

Option 1: Equivalent to 95th percentile for Unsafe Driving and HOS and 98th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)

6.7

5.3

4.8

3.6

2.6

Proposed Option: Equivalent to 96th percentile for Unsafe Driving and HOS and 99th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)

6.5

5.2

4.7

3.8

3.5

The highest crash rates identified (between 6.5 and 6.7) are all in the small (5 or fewer power units) carrier population. This suggests that small carriers are not unfairly selected under either of the two proposed models.

Table 16 presents the overall crash rates of carriers identified by two or more failed BASICs from inspections. The nation-wide crash rate of the general carrier population is 2.13 per 100 power units. The general carrier population crash rate was calculated on a consistent time frame as that of the carriers identified under the proposed process.

Table 16—Number of Total Failed Carriers and the Corresponding Crash Rate

Alternatives considered

Number of carriers unfit based on 2 or more failed BASICs

(inspection violations only)

Crash rate (crashes per 100 power units)

Active carriers

Crashes for active carriers

Power units for active

carriers

Option 1: Equivalent to 95th percentile for Unsafe Driving and HOS/98th percentile for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)

479

3.75

387

569

15,161

Proposed Option: Equivalent to 96th percentile for Unsafe Driving and HOS/99th for Driver Fitness, Vehicle Maintenance, and HM (Based on 11+ inspections with violations)

262

8.28

211

300

3,625

Of the two options presented, the proposed option identifies the carriers (262) that have the highest overall crash rate (8.28 crashes per 100 power units).

Although Option 1 has a higher net benefit than Option 2, the Agency notes that selecting Option 1 may require additional resources while Option 2 is largely resource neutral. The Agency can accommodate under Option 2 the number of investigations resulting in proposed unfit determinations based on its current resources. The number of enforcement cases, compliance agreements, and oversight required from this population approaches the capacity of the Agency's existing staff. Option 2 represents the best balance for the Agency with its limited resources. It should be noted that the cost of reallocating Agency resources is not included in this analysis. FMCSA seeks comment on this policy choice.

FMCSA proactively addressed concerns about the SMS in the development of this SFD proposal. In addition to the differences noted above, it is important to point out that other concerns about the system including disparities for long-haul and short-haul carriers; differences for urban and rural motor carriers, and enforcement differences by the States have all been considered. The long and short haul differences are minimized by the combination (long-haul) and straight truck (short haul) segmentation. The impacts of urban and rural transportation are factored into the calculation of the Crash Indicator BASIC failure rates. Lastly, while enforcement differences exist between the States, since the failure standards proposed in this rule are significantly higher than the SMS intervention thresholds, the patterns of non-compliance for the carriers that are proposed unfit are not the result of these disparities but are the result of recurring non-compliance.

Safety Event Groups

As noted above, the Agency is proposing different SFD failure standards within each BASIC. The applicable failure standard for each motor carrier would be based on its assigned safety event group. If FMCSA did not establish different SFD failure standards for each safety event group, a disproportionately high number of small carriers (

i.e.,

carriers with few safety events) would be found to be unfit. Larger carriers (with many safety events) would rarely fail. The Agency believes the reason for this disparity is attributable to the statistical phenomenon of higher fail rates among carriers with few safety events—“the law of small numbers.”

Tversky, A.; Kahneman, D. (1971). “Belief in the law of small numbers”. Psychological Bulletin 76 (2): 105-110.

http://psycnet.apa.org/journals/bul/76/2/105/.

Diagram 1 below shows an example of the absolute failure standard that corresponds to the worst performing 4 percent of carriers for the HOS Compliance BASIC. This data comes from Table 10 above.

EP21JA16.002

The above diagram shows that establishing a single failure standard, without reference to the number of safety events to which a motor carrier is exposed, would disproportionately affect those carriers with fewer safety events—typically smaller carriers. For example, if the HOS Compliance BASIC SFD failure standard were set at 4.15 for all carriers, 4 percent of carriers with 11-20 inspections would fail. However, very few carriers in the remaining safety event groups have measures as high as 4.15. A carrier with many inspections (21 or more relevant inspections with violations) would be essentially immune to BASIC failure from on-road safety performance. Therefore, the SFD failure standard needs to be proportionate to the number of safety events.

FMCSA uses the same percentile equivalent (

e.g.

96 percentile for HOS Compliance BASIC) to make sure all carriers are held to similar safety standards regardless of the number of inspections and the variance associated with number of inspections. This allows the Agency to treat carriers of all sizes as equitably as possible. To adjust the failure standard based on the number of inspections would imply that carriers of a certain size are inherently more unsafe. This would open the Agency to criticism that the rule is biased against small carriers or large carriers (depending on how the percentiles are adjusted). Given that this proposal is designed to get the most non-compliant carriers off the road (regardless of size), the straightforward approach is applying the same percentile equivalent to all safety event groups.

A baseball analogy may provide some insight into this impact. A major league baseball player's number of at-bats is important to evaluating whether his batting average warrants demotion to the minor leagues. Likewise, a motor carrier's number of inspections is important in evaluating whether its performance warrants adverse SFD consequences. For example, 2 hits in 20 at-bats at the beginning of the baseball season (

i.e.,

a 0.100 batting average) would generally not get a baseball player demoted to the minor leagues. However, 80 hits in 400 at-bats (

i.e.,

a 0.200 batting average) across an entire season likely would get a baseball player demoted, even though his batting average is twice as high (0.200 vs. 0.100).

The average batting average for all of Major League Baseball in 2014 was 0.251. See

http://espn.go.com/mlb/stats/team/_/stat/batting/year/2014/seasontype/2

, accessed on April 6, 2015.

Similarly, motor carriers with few inspections exhibit a wider range of performance measures than carriers with many more inspections. A batter might bat 5 for 10 (0.500 average) in the first week of the season (corresponding to a high absolute measure), but no batter sustains that level through 400 at bats. Similarly, a carrier could have an HOS Compliance BASIC violation in each of 5 inspections, but it would be almost impossible that a carrier would have 500 HOS Compliance BASIC violations in 500 inspections. The greater the number of events, be they at-bats or inspections, the narrower the range of realistic outcomes. Failure standards that incorporate the number of safety events thus ensure that the worst performing motor carriers across all sizes and numbers of safety events are subject to an absolute standard.

When appropriate, the motor carrier's BASICs measures are normalized to reflect differences in inspection and

other safety oversight exposure among motor carriers. The HOS Compliance and Driver Fitness measures are normalized by adding the number of time-weighted driver inspections, while Vehicle Maintenance BASIC measures are normalized by adding the number of time-weighted vehicle inspections. The HM Compliance BASIC is normalized by adding the number of time-weighted vehicle inspections where placardable quantities of HM were present. The inspections used to normalize a BASIC measure are considered relevant inspections.

Motor carrier exposure for the Unsafe Driving BASIC is normalized by carrier size using power units and vehicle miles traveled (VMT). Carriers with above-average CMV utilization, in terms of VMT per power unit as reported from MCMIS, receive a positive adjustment to account for the increased exposure to violations that result from miles operated by incorporating an Unsafe Driving Utilization Factor. The Unsafe Driving BASIC accounts for further carrier differences by dividing the carrier population into two segments based on the current mix of vehicles operated. This differentiates the levels of exposure associated with carriers that have fundamentally different types of operations.

The Unsafe Driving Utilization Factor is a multiplier that adjusts the average power unit values based on utilization in terms of VMT per average power unit where VMT data from the past 24 months are available. In cases where the VMT data have been obtained multiple times over the past 24 months for the same carrier, FMCSA proposes to use the most current VMT figure reported by the motor carrier during an investigation, reported online biennially, or reported on Forms MCSA-1 or MCS-150. The Utilization Factor would be calculated as follows:

(1) Determine carrier segment based on the types of vehicles the carrier operates (The types of vehicles are “combination”

or “straight truck.” These different types of power units are defined on the Application for USDOT Registration/Operating Authority (Form MCSA-1)

instructions);

The combination segment includes those carriers that operate either truck tractors or motor coaches. The instructions for “Application for USDOT Registration/Operating Authority” (Form MCSA-1) define a “motor coach” as “a vehicle designed for long distance transportation of passengers, usually equipped with storage racks above the seats and a baggage hold beneath the passenger compartment.” See

http://www.regulations.gov/#!documentDetail;D=FMCSA-1997-2349-0195

. Carriers are placed in the combination category if 70 percent or more of the carrier's total power units meet that definition. The straight truck segment includes all other carriers, including those that operate straight trucks, HM cargo tank trucks, or school buses/mini-buses/limousines/vans with a capacity of 9 or more passengers.

The Motor Carrier Identification Report (Form MCS-150) will be replaced by the Application for USDOT Registration/Operating Authority (Form MCSA-1) for most motor carriers on September 30, 2016, as required by the Unified Registration System final rule published on August 23, 2013 (78 FR 52608) and the extension of effective dates final rule published on October 21, 2015 (80 FR 63695). The form MCS-150 will continue to be used by Mexico-domiciled motor carriers requesting authority to provide transportation of property or passengers in interstate commerce between Mexico and points in the United States beyond the municipalities and commercial zones along the United States-Mexico international border. The Agency is considering eliminating the MCS-150 altogether and would do so by separate rulemaking.

(2) Calculate the VMT per average power unit by taking the most recent positive VMT data

and dividing it by the average power units;

Reported by the motor carrier during an investigation, reported online biennially, or reported on Forms MCSA-1 or MCS-150.

(3) Use the information in (1) and (2) to find the utilization factor in Tables 2-3 and 2-4 to appendix B to part 385: VMT per Power Unit.

Use of failure standards that consider the number of safety events has precedent. The province of Ontario, Canada uses a similar approach in its Commercial Vehicle Operators Registration (CVOR) motor carrier safety rating system. A technical document that illustrates Ontario's safety rating failure standards based on a motor carrier's number of inspections is included in the docket for this document.

The Ontario Ministry of Transportation “analysed the on-road safety performance of a large sample of carriers operating in Ontario during the two-year period from July 1, 2003 until June 30, 2005. Collision rates and safety related conviction rates for each carrier were plotted and compared for carriers with varying rates of travel, resulting in a standard that identifies acceptable levels of performance. A similar standard was developed for vehicle inspection performance based on frequency of inspection. Performance standards were determined based on monthly kilometric travel. . . . An overall performance level or threshold was established for each carrier by weighting the collision, conviction and inspection performances in the ratios of 2:2:1. In other words, collisions and convictions are given double the weight of inspections in determining an operator's overall violation rate (performance level)” page 25.

Ontario's CVOR and Carrier Safety Rating Public Guideline, Ministry of Transportation, St. Catharines, Ontario, November 2011.

FMCSA proposes that the failure standard for each safety event group be the absolute performance measure corresponding to a given BASIC percentile at the time the standard is set. For example, the absolute failure standards that correspond to the 96th percentile in the HOS Compliance BASIC are presented above in Table 10. FMCSA specifically seeks comments on the use of absolute failure standards based on a motor carrier's number of inspections. In addition, the Agency requests information on the impact to commenters if the Agency were to move to a different safety event grouping approach—similar to Ontario's CVOR process. Under such a different approach, there would be more safety event groups in each BASIC and more corresponding BASIC failure standards. The carrier groupings would be narrower and more closely aligned to the motor carrier's exact number of inspections. For example, rather than grouping all motor carriers with 11-20 inspections for the Vehicle BASIC, as is proposed in this NPRM, a different approach might establish safety event groups and corresponding BASIC failure standards for all motor carriers with, for example, 11-13 inspections, 14-16 inspections, and 17-20 inspections.

FMCSA seeks comment on setting the standard at the same percentile for each safety event group. Would it be appropriate to allow the threshold to vary across safety event groups? If so, please provide data to support your position.

2. Unfit Method 2: Carrier With Violations of the Revised Critical and Acute Regulations Identified Through an Investigation

Unfit Method 2 would use data only from investigations. For example, investigations may begin after receipt of a complaint alleging a substantial violation of a regulation is occurring or has occurred, a crash report suggesting a substantial violation of a regulation occurred, or when a motor carrier's SMS BASIC percentiles meet or exceed intervention thresholds. The Agency proposes to use any of the investigation types used by the Agency during interventions—either an offsite focused, onsite focused, or an onsite comprehensive investigation to issue proposed SFDs. This approach would modify the Agency's current requirement for an onsite investigation in order to issue an SFD. Documentation supporting an unfit determination would be collected using existing enforcement guidelines and standards— including sampling methodologies.

If a motor carrier is cited for a violation of an acute regulation associated with a BASIC, it would fail that BASIC. If a motor carrier is cited for a violation of a critical regulation with violations discovered in a minimum of 10 percent violation of the records examined, it would fail that BASIC. If a motor carrier failed two or more BASICs due to violations of the proposed critical and/or acute regulations, this would result in a proposed unfit determination. This proposed SFD methodology raises the safety standard above that used in the current process. Only one violation of a critical regulation, at a 10 percent or higher violation rate, would be required to fail a BASIC, whereas, in the current process, two violations of critical regulations are generally required to fail a Factor.

The costs and benefits associated with this proposal only use investigation results from a one month period prior to a proposed SFD. FMCSA specifically seeks comments on the length of time that failed BASICs from investigations should be reviewed together with failed BASICS from on-road safety data to potentially result in a proposed SFD.

As a result of its analysis and alternatives development, FMCSA proposes to alter the list of critical and acute regulations. Analysis by FMCSA

compared the crash rates of motor carriers with violations of the existing list of critical and acute regulations to the crash rates of motor carriers with violations of the proposed list of critical and acute regulations. The revised, refined list of critical and acute regulations correlated to a higher crash rate. For the purpose of proposing unfit SFDs, the refined list of critical and acute regulations is an equally strong, if not a better, indicator of crash risk. A copy of the analysis is included in the docket for this rulemaking.

“Estimating the Safety Impact of Proposed Safety Fitness Determination (SFD) Criteria,” FMCSA, May 2015.

Table 17 shows the revised acute and critical violations and the BASIC with which they would align. The current critical and acute regulations may be found at 49 CFR part 385, appendix B, section VII. In contrast to on-road inspection violations, violations cited during an investigation are not time or severity weighted, see section 2.3.7, 2.3.8, and 2.3.9 in proposed appendix B to part 385 below.

Table 17—Revised Critical and Acute Regulations

Acute or critical

49 CFR section

Description of violation

Behavior analysis and safety

improvement category (BASIC)

Critical

173.24(b)(1)

Accepting for transportation or transporting a package that has an identifiable release of a HM to the environment

HM Compliance.

Critical

173.24b(d)(2)

Loading bulk packaging (cargo tank) with an HM which exceeds the maximum weight of lading marked on the specification plate

HM Compliance.

Critical

173.33(a)(1)

Offering or accepting a HM for transportation in an unauthorized cargo tank

HM Compliance.

Critical

173.33(a)(2)

Loading or accepting for transportation two or more materials in a cargo tank motor vehicle which if mixed results in an unsafe condition

HM Compliance.

Critical

173.33(b)(1)

Loading HM in a cargo tank motor would have a dangerous reaction when in contact with the tank

HM Compliance.

Critical

177.800(c)

Failing to instruct a category of employees in HM regulations

Driver Fitness.

Acute

177.801

Accepting for transportation or transporting a forbidden material

HM Compliance.

Critical

177.817(a)

Transporting a shipment of HM not accompanied by a properly prepared shipping paper

HM Compliance.

Critical

177.834(i)

Loading or unloading a cargo tank without a qualified person in attendance

HM Compliance.

Critical

177.848(d)

Failing to store, load, or transport HM in accordance with the segregation table

HM Compliance.

Critical

180.407(a)

Transporting a shipment of HM in cargo tank that has not been inspected or retested in accordance with § 180.407

HM Compliance.

Acute

382.115(a)

Failing to implement an alcohol and/or controlled substances testing program (domestic motor carrier)

Controlled Substances.

Acute

382.115(b)

Failing to implement an alcohol and/or controlled substances testing program (foreign motor carrier)

Controlled Substances.

Acute

382.201

Using a driver known to have an alcohol concentration of 0.04 or greater

Controlled Substances.

Acute

382.211

Using a driver who has refused to submit to an alcohol or controlled substances test required under part 382

Controlled Substances.

Acute

382.215

Using a driver known to have tested positive for a controlled substance

Controlled Substances.

Critical

382.301(a)

Using a driver before the motor carrier has received a negative pre-employment controlled substance test result

Controlled Substances.

Critical

382.303(a)

Failing to conduct post-accident testing on driver for alcohol

Controlled Substances.

Critical

382.303(b)

Failing to conduct post-accident testing on driver for controlled substances

Controlled Substances.

Acute

382.305

Failing to implement a random controlled substances and/or an alcohol testing program

Controlled Substances.

Critical

382.305(b)(1)

Failing to conduct random alcohol testing at an annual rate of not less than the applicable annual rate of the average number of driver positions

Controlled Substances.

Critical

382.305(b)(2)

Failing to conduct random controlled substances testing at an annual rate of not less than the applicable annual rate of the average number of driver positions

Controlled Substances.

Critical

382.309

Using a driver without a return to duty test

Controlled Substances.

Critical

382.503

Allowing a driver to perform safety sensitive function, after engaging in conduct prohibited by subpart B, without being evaluated by substance abuse professional, as required by § 382.605

Controlled Substances.

Critical

383.3(a)/383.23(a)

Using a driver who does not possess a valid CDL

Driver Fitness.

Acute

383.37(a)

Knowingly allowing, requiring, permitting, or authorizing an employee who does not have a current CLP or CDL, who does not have a CLP or CDL with the proper class or endorsements, or who operates a CMV in violation of any restriction on the CLP or CDL to operate a CMV

Driver Fitness.

Acute

383.51(a)

Knowingly allowing, requiring, permitting, or authorizing a driver to drive who is disqualified to drive a CMV

Driver Fitness.

Acute

391.11(b)(4)

Using a physically unqualified driver

Driver Fitness.

Acute

391.15(a)

Using a disqualified driver

Driver Fitness.

Critical

391.45(a)

Using a driver not medically examined and certified

Driver Fitness.

Critical

391.45(b)(1)

Using a driver not medically examined and certified during the preceding 24 months

Driver Fitness.

Critical

391.51(a)

Failing to maintain driver qualification file on each driver employed

Driver Fitness.

Critical

392.2

Operating a motor vehicle not in accordance with the safety laws, ordinances, and regulations of the jurisdiction in which it is being operated

Unsafe Driving.

Critical

392.6

Scheduling a run which would necessitate the vehicle being operated at speeds in excess of those prescribed

Unsafe Driving.

Critical

392.9(a)(1)

Requiring or permitting a driver to drive without the vehicle's cargo being properly distributed and adequately secured

Vehicle Maintenance.

Critical

395.1(h)(1)(i)

Requiring or permitting a property-carrying CMV driver to drive more than 15 hours (Driving in Alaska)

HOS Compliance.

Critical

395.1(h)(1)(ii)

Requiring or permitting a property-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska)

HOS Compliance.

Critical

395.1(h)(1)(iii)

Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska)

HOS Compliance.

Critical

395.1(h)(1)(iv)

Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska)

HOS Compliance.

Critical

395.1(h)(2)(i)

Requiring or permitting a passenger-carrying CMV driver to drive more than 15 hours (Driving in Alaska)

HOS Compliance.

Critical

395.1(h)(2)(ii)

Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 20 hours (Driving in Alaska)

HOS Compliance.

Critical

395.1(h)(2)(iii)

Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 7 consecutive days (Driving in Alaska)

HOS Compliance.

Critical

395.1(h)(2)(iv)

Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 80 hours in 8 consecutive days (Driving in Alaska)

HOS Compliance.

Critical

395.1(o)

Requiring or permitting a property-carrying CMV driver to drive after having been on duty 16 consecutive hours

HOS Compliance.

Critical

395.3(a)(1)

Requiring or permitting a property-carrying CMV driver to drive without taking an off-duty period of at least 10 consecutive hours prior to driving

HOS Compliance.

Critical

395.3(a)(2)

Requiring or permitting a property-carrying CMV driver to drive after the end of the 14th hour after coming on duty

HOS Compliance.

Critical

395.3(b)(1)

Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 60 hours in 7 consecutive days

HOS Compliance.

Critical

395.3(b)(2)

Requiring or permitting a property-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days

HOS Compliance.

Critical

395.5(a)(1)

Requiring or permitting a passenger-carrying CMV driver to drive more than 10 hours

HOS Compliance.

Critical

395.5(a)(2)

Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty 15 hours

HOS Compliance.

Critical

395.5(b)(2)

Requiring or permitting a passenger-carrying CMV driver to drive after having been on duty more than 70 hours in 8 consecutive days

HOS Compliance.

Critical

395.8(a)

Failing to require driver to make a record of duty status

HOS Compliance.

Critical

395.8(e)

False reports of records of duty status

HOS Compliance.

Critical

395.8(i)

Failing to require driver to forward within 13 days of completion, the original of the record of duty status

HOS Compliance.

Critical

395.8(k)(1)

Failing to preserve driver's record of duty status for 6 months

HOS Compliance.

Critical

395.8(k)(1)

Failing to preserve driver's records of duty status supporting documents for 6 months

HOS Compliance.

Critical

396.3(b)

Failing to keep minimum records of inspection and vehicle maintenance

Vehicle Maintenance.

Acute

396.9(c)(2)

Requiring or permitting the operation of a motor vehicle declared “out-of-service” before repairs were made

Vehicle Maintenance.

Acute

396.11(c)

Failing to correct Out-of-Service defects listed by driver in a driver vehicle inspection report before the vehicle is operated again

Vehicle Maintenance.

In some forums for SMS purposes, the Agency has referred to violations of certain critical and acute regulations as essential safety management violations and fundamental violations, respectively.

However, for the purposes of this rulemaking, the Agency is not proposing to change the current terminology. Instead, FMCSA would revise the list in section VII in appendix B to part 385 and retain the terms “critical” and “acute.” This terminology is included in the Motor Carrier Safety Improvement Act of 1999, and is familiar to law enforcement and the industry. Proposed revisions to 49 CFR part 385, appendix B, are explained in detail in Part IX of this proposed rule.

See 72 FR 62293, at 62299 (Nov. 2, 2007) and 73 FR 53483, at 53487 (Sept. 16, 2008).

The critical and acute violations noted in Table 17 above have been used for the analysis in the Regulatory Evaluation accompanying this proposal. But the Agency is also considering whether to include the following violations and seeks comment specifically on these violations.

• § 390.35—Making, or causing to make, fraudulent or intentionally false statements or records or reproducing fraudulent records.

• § 392.4(b)—Requiring or permitting a driver to drive while under the influence of, or in possession of, a narcotic drug, amphetamine, or any other substance capable of rendering the driver incapable of safely operating a motor vehicle.

• § 392.5(b)(1)—Requiring or permitting a driver to drive a motor vehicle while under the influence of, or in possession of, an intoxicating beverage.

• § 392.5(b)(2)—Requiring or permitting a driver who shows evidence of having consumed an intoxicating beverage within 4 hours to operate a motor vehicle.

• § 392.16—A commercial motor vehicle which has a seat belt assembly installed at the driver's seat shall not be driven unless the driver has properly restrained himself/herself with the seat belt assembly.

• § 392.80(a)—No driver shall engage in texting while driving.

• § 392.80(b)—No motor carrier shall allow or require its drivers to engage in texting while driving.

• § 392.82(a)(1)—No driver shall use a hand-held mobile telephone while driving a commercial motor vehicle.

• § 392.82(a)(2)—No motor carrier shall allow or require its drivers to use a hand-held mobile telephone while driving a CMV.

• § 396.7(a)—Requiring or permitting operation of a motor vehicle in a condition likely to cause an accident or breakdown of the vehicle.

• § 396.17(a)—Using a commercial motor vehicle not periodically inspected.

As a result, the Agency seeks comment and data on these regulations and others that should be considered critical or acute. Lastly, the Agency seeks comment and data on how critical and acute regulations should be determined; is associated crash risk the best measurement, or is there a better or additional reason?

Crashes

The statute requires the Agency to consider crashes in determining safety fitness.

A motor carrier's crash experience would impact the SFD only if the carrier's recordable crashes had first been evaluated for preventability as part of an investigation. This is consistent with FMCSA's existing methodology. For this purpose, the Agency will consider only recordable crashes. A crash is recordable if it involves a CMV and meets the definition in 49 CFR 390.5 (defining “accident”).

49 U.S.C. 31144(a)(1).

The Agency proposes to determine preventability by applying the standards and procedures currently utilized in assessing preventability of recordable crashes when determining a safety rating. Those procedures make use of previously issued guidance for making preventability determinations, set out in FMCSA's

A Motor Carrier's Guide to Improving Highway Safety.

A Motor Carrier's Guide to Improving Highway Safety,

FMCSA-ESO-08-003, December 2009. Available at

http://www.fmcsa.dot.gov/safety-security/eta/index.htm

The Agency calculates a motor carrier's crash rate by multiplying the motor carrier's number of recordable interstate and intrastate crashes in the previous 12 months by 1,000,000. That result is divided by the motor carrier's fleet mileage during the previous 12 months. The failure standard for crash rates is 1.5 for general operations and 1.7 for urban operations. If the motor carrier exceeds the failure standard, the crashes will be reviewed for preventability. The crash rate will then be recalculated using only preventable crashes. If the motor carrier's preventable crash rate remains above the failure standard, the motor carrier would then fail the Crash Indicator BASIC.

In 1997, FMCSA's predecessor, the Federal Highway Administration, published a Final Rule (62 FR 60035) indicating that it would use a carrier's

recordable

crash rate as a factor in determining its safety rating, but would continue to consider the

preventability

of such crashes when challenged by individual carriers. The thresholds for unacceptable crash rates were set using recordable crash data from 1994-1996. FMCSA seeks comment on whether either the recordable crash rate or the preventable crash rate would be more appropriate for use in calculating a carrier's SFD and whether the recordable crash rates currently incorporated into 49 CFR part 385, appendix B, should be retained as thresholds under the new SFD.

3. Unfit Method 3: Combination of Inspection Data and Investigation Results

During an investigation, it may be determined that violations of acute or critical regulations result in only one failed BASIC. However, the motor carrier may also have one additional BASIC over the SFD failure standard based on the most recent 24 months of

on-road safety data. When, at the time of the investigation, there is one failed BASIC as a result of on-road safety data and one or more additional failed BASICs as a result of violations discovered during the investigation, the motor carrier would be proposed unfit. Crash and controlled substances/alcohol information would be considered, as noted above, only during the investigation.

4. Specific Applications

English Language Proficiency

It should be noted that the Agency's analysis, including the estimated number of proposed unfit motor carriers, does not include violations of 49 CFR 391.11(b)(2) for English Language Proficiency (ELP). These violations are also not included in the proposed violation tables in appendix B of part 385. The Agency chose to do the analysis without this violation based on the Commercial Vehicle Safety Alliance's (CVSA) 2014 decision to remove this violation from it's out of service criteria. The Agency specifically seeks comments on this issue.

Passenger Carriers

Congress and FMCSA have both acknowledged the increased risk associated with transportation of passengers. Currently, FMCSA also holds passenger motor carriers to more stringent intervention thresholds in SMS.

The Agency is considering an alternative, more stringent, proposal for passenger carriers that would result in a proposed unfit SFD. The proposal would have two elements. First, a passenger carrier would receive a proposed unfit SFD when it meets or exceeds failure standards comparable to the 75th percentile for either the Unsafe Driving or HOS Compliance BASIC. Under this part of the alternative proposal, a passenger carrier could be proposed unfit for failing either Unsafe Driving or HOS Compliance, without failing a second BASIC. Secondly, and in addition, FMCSA is considering a structure where a proposed unfit SFD would also result if a passenger carrier meets or exceeds SFD failure standards comparable to the 90th percentile when the absolute thresholds in two of the three other BASICs—Vehicle Maintenance, Driver Fitness or HM Compliance.

The Agency estimates that 270 passenger carriers would be proposed as unfit using these alternate failure standards. This would result in 93 more passenger carriers being proposed unfit than would result from using two failed BASICs comparable to the 96th and 99th percentiles, as elsewhere proposed in this document. Using data from on-road safety data and investigation results, the estimated crash rate for these 270 passenger carriers is 2.08 applying the same approach used in the Regulatory Evaluation. The national average for all passenger carriers is 1.09 crashes per 100 power units. The proposed unfit passenger carriers using these alternate failure standards had experienced a crash rate (2.08 per 100 power units) that was almost twice the national passenger carrier rate (1.09 per 100 power units) or an increase of 90% ((2.08-1.09/1.09)).

As a result, the Agency seeks feedback and data on whether passenger carriers should be held to more stringent SFD failure standards, that is, at an absolute value equivalent to the 75th percentile (or some other percentile less than the 96th percentile) for the Unsafe Driving and HOS Compliance BASICs failure standards, and equivalent to the 90th percentile (or some other percentile less than the 99th percentile) for the Driver Fitness, Vehicle Maintenance, HM Compliance, and Crash Indicator BASICs. The Agency also requests comment on whether the proposed failure standards are appropriate.

The Agency is also interested in alternative methods for identifying high risk passenger carriers during an investigation. It is considering lowering the minimum rate of violations for a pattern, for purposes of a critical regulation violation, from 10 percent to 5 percent or a lower number. FMCSA seeks comments on this concept.

Hazardous Materials Carriers

The SMS also has lower intervention thresholds for HM carriers. As a result, the Agency seeks feedback and data on whether these carriers should be held to a more stringent standard (

i.e.,

lower BASIC failure standards). The Agency is specifically interested in feedback on whether the failure standard should be different for HM safety permit carriers.

Under this proposal, HM safety permit applicants would continue to be required to have a comprehensive onsite investigation comparable to the existing CR, conducted at the motor carrier's principal place of business, and would be issued a HM safety permit as long as they were not unfit and met other applicable requirements. Either inspections or another investigation after issuance of the HM safety permit could result in an unfit determination, however, thus affecting the HM safety permit status.

Foreign Motor Carriers

Under this proposal, the Agency notes that Mexican, Canadian, and Non-North American carriers registered with FMCSA could be found to be unfit based on their inspection data and investigation results.

Mexican long-haul carriers permitted to operate in this country beyond border commercial zones are required to have a compliance review before being granted standard authority. In the future, if long-haul authority is granted, the carrier would be required to have a comprehensive investigation comparable to an existing CR within 18 months of FMCSA granting the carrier provisional operating authority registration before being granted standard authority. Additionally, on-road safety data or findings from another investigation could result in an unfit determination, thus affecting the carrier's provisional authority status.

D. MAP-21 Requirements for Motor Carriers of Passengers and Operators of Motorcoach Services

A MAP-21 amendment requires the Secretary to conduct initial and periodic safety reviews of for-hire motor carriers of passengers.

Initial reviews of those motor carriers of passengers that are providers of motorcoach services registered with the Secretary after October 1, 2012, are to begin no later than two years after the dates of their respective registrations. Reviews of such providers registered on or before October 1, 2012, are to begin no later than October 1, 2015.

An uncodified statutory provision of MAP-21 directs the Secretary to establish requirements to improve the public accessibility of the safety rating information of providers of motorcoach services, and advises that the Secretary should also consider requirements for public display of such information on motorcoaches, at departure terminals, and at ticket sales locations.

49 U.S.C. 31144(i)(1), (2) and (4).

49 U.S.C. 31144(i)(1)(B). A “motorcoach” is defined for this purpose to be the same as an “over-the-road bus,” a bus characterized by an elevated passenger deck located over a baggage compartment, except a bus used by a public transportation agency or a school bus. See Section 32702(6) of MAP-21 and section 3038(a)(3) of TEA-21 (set out as a note to 49 U.S.C. 5310).

MAP-21 section 32707(b), 126 Stat. 814.

MAP-21 requires the Secretary to determine the safety fitness of each motor carrier of passengers through a simple and understandable rating system that allows passengers to compare their safety performance. MAP-21 also requires the Secretary to assign a safety fitness rating to each

such motor carrier, which is reassessed at least once every 3 years, although motor carriers of passengers that serve primarily urban areas with high passenger volume are to be reassessed annually.

In addition, section 32707(b) of MAP-21 requires that FMCSA improve public access to safety fitness information for motorcoach services and operations in interstate commerce.

49 U.S.C. 31144(i)(1), (2) and (4), added by section 32707(a) of MAP-21.

As discussed previously, the Agency is proposing to determine only one category of safety fitness—unfit. This determination would also be made for some motor carriers of passengers through the monthly assessment of the inspection data. If the passenger carrier did not have 11 inspections in the previous 24 months by which to be adequately assessed, an investigation of the carrier's safety performance would be conducted.

Section 32707(b) also requires the Agency to consider requiring the prominent display of safety fitness rating information in each motorcoach terminal of departure, on the inside of the motorcoach vehicle, and at all points of sale for motorcoach services. The public has access to critical information about the safety record and ratings of motor carriers of passengers, including providers of motorcoach services, on the FMCSA Web site and through the Agency's SaferBus application.

FMCSA believes that implementing the statutory requirement to consider prominently displaying SFD information at terminals, ticket sale locations, and on motorcoaches could result in fraudulent information being displayed, and, therefore, is better addressed by directing the traveling public to FMCSA's Web site and the SaferBus application. FMCSA seeks comments on whether the public's access to a for-hire motorcoach operator's safety record on the FMCSA Web site and SaferBus application is sufficient to meet the public access and display requirements of section 32707(b)(2) of MAP-21.

This application is available without charge to Google Android users and Apple iPhone and iPad users from the respective App Stores, or by going to the FMCSA's “Look Before You Book” Web site at

www.fmcsa.dot.gov/saferbus

E. Summary Justification for SFD Proposal

FMCSA has structured this SFD proposal to identify those motor carriers with the highest crash risk. Carriers identified through two failed BASICs based solely on on-road safety data (using the 96/99 percentile threshold standard) have a crash rate of 8.28 crashes per 100 power units. All carriers with two failed BASICs (including carriers failing a BASIC due to a finding during an investigation and on-road safety data) have a crash rate of 4.39 crashes per 100 power units. This is compared to the nation-wide average crash rate of 2.13 crashes per 100 power units for all carriers.

The proposed use of on-road safety data would allow the Agency to identify and take action against unsafe motor carriers. Table 18 below illustrates both the number of carriers proposed unfit and the associated crash rate for two different options for failure standards for SFDs. Option 2 is the option proposed in this rulemaking.

Table 18—Number of Carriers Proposed Unfit—Identified With Two Failed BASICs

Failure standard option

All proposed unfit methods:

Total number of carriers proposed unfit

Total number of crashes for

carriers

proposed unfit

Associated crash rate per 100 power units (PUs)

Proposed unfit method 1: Number of carriers proposed unfit based on inspection data (and associated crash rate per 100 PUs)

Proposed unfit method 2: Number of carriers proposed unfit based on investigations (and associated crash rate per 100 PUs)

Proposed unfit method 3: Number of carriers proposed unfit based on inspection and investigation (and associated crash rate per 100 PUs)

No. 1—Equivalent to 95 and 98 percentiles

3,291

2,124

3.93

479 (3.75)

2,656 (3.94)

156 (4.66)

No. 2—Equivalent to 96 and 99 percentiles

3,056

1,862

4.39

262 (8.28)

2,674 (3.98)

120 (4.61)

The Agency used lessons learned from SMS and feedback from stakeholders

in crafting the proposed SFD process. These include requiring a higher number of inspections before assessing the motor carrier's performance, a higher number of inspections with violations before making an SFD, and using absolute failure standards equivalent to higher compliance levels than SMS uses for prioritization. Because SMS intervention thresholds are lower than the proposed thresholds for SFD, under this proposal it is very unlikely that a proposed unfit SFD would be the first time that the Agency had an intervention with the motor carrier. Most often, the motor carrier would have been subject to previous interventions, such as warning letters, focused reviews, and/or civil penalty enforcement actions. If the safety deficiencies were not corrected, however, the carrier could ultimately meet or exceed the safety failure standards that result in a proposed unfit SFD.

See docket FMCSA-2004-18898 titled Comprehensive Safety Analysis 2010 Initiative.

VII. Revised SFD Appeals Process

After receiving a proposed unfit safety fitness determination, a motor carrier would have various administrative proceedings available to it before the proposed determination becomes final.

In this proposal, four different administrative proceedings would be available. However, consistent with current procedures, requests for administrative reviews would not automatically stay the unfit determination.

See section IV.A.

History of SFDs

above for an explanation of the 45- and 60-day periods set by statute before a proposed unfit SFD becomes final. 49 U.S.C. 31144(c).

A. Administrative Review of Material Errors

This proposal would continue the existing administrative review procedure to challenge alleged errors committed in assigning the proposed unfit SFD. These requests are decided by FMCSA's Assistant Administrator. The proposed administrative review procedures in revised 49 CFR 385.15 would provide sufficient opportunity

for a motor carrier to allege errors in an SFD, including allegations of error in the validity of violations recorded on a driver/vehicle inspection report, even where State administrative or judicial proceedings might not be adequate or available. The burden of proof for this review would remain with the motor carrier. Such review would now have to be sought within 15 days after service of the notice of proposed unfit SFD. If no such review is sought within 30 days after service of the notice, or the Agency does not agree with the allegations of material error, the proposed unfit SFD may become a final unfit SFD as described above.

As indicated above, FMCSA proposes to reduce the time for filing a petition for administrative review from the current maximum of 90 days to 15 days after the issuance of the proposed unfit SFD. FMCSA specifically requests comment on this proposed change in the general time for filing of petitions for administrative review, which will ensure that decisions will be made before the statutory time periods expire.

B. Claiming Unconsidered Inspection Data

The second proposed administrative review procedure would be new and would provide for review based on missing data. Requests for such review would be decided by FMCSA's Field Administrators

of the FMCSA Service Center responsible for the State, province, or country where the carrier's principal place of business is located. Procedures would be added at new § 385.16 for administrative review of an unfit determination that allegedly did not include all reported data from qualifying inspections of the motor carrier's vehicles or drivers, such as missing inspections citing no violations during the SFD period. For this new review, the burden of proof to show that the missing data would impact the proposed unfit SFD would rest with the motor carrier. This review would have to be requested within 10 days after service of the notice of proposed unfit SFD.

The proposed definition of the term Field Administrator includes the term Regional Field Administrator.

C. Requests To Operate Under a Compliance Agreement

The third proposed administrative process would revise FMCSA's existing process by allowing carriers that have a proposed unfit SFD to defer the final unfit SFD and continue to operate under a compliance agreement. The carrier would submit a corrective action plan and would agree to monitoring and performance terms. If the corrective action plan is found to be acceptable to the Agency, the motor carrier could operate under a compliance agreement. This proposal would not remove the proposed unfit determination unless the terms of the compliance agreement were met throughout an agreed upon period of time. In addition, the Agency's Web site would reflect that a motor carrier would be operating under a compliance agreement during the agreement period.

To initiate this process, a carrier would have to submit an acceptable corrective action plan within the time frames specified in proposed § 385.17(d). To be accepted, a corrective action plan would have to demonstrate that the carrier is willing and able to comply with applicable safety statutes and regulations and demonstrate significant changes in its deficient safety management processes. For example the carrier may have to demonstrate clearly defined safety policies and procedures, documented organizational roles and responsibilities for safety compliance, written qualification and hiring standards, training and communication plans, and ongoing compliance monitoring and tracking procedures. Other potential requirements might include, but would not be limited to, installing safety technology, providing reports or other documents, and training. While decisions on the terms of each compliance agreement would be made by FMCSA, standard requirements would include: (1) Monitoring for a defined period of time; and (2) strict safety performance standards that would have to be met or the carrier would be immediately declared unfit. Motor carriers would be expected to maintain performance

below

the SMS intervention thresholds established in the agreement. See Table 3 earlier in this preamble for the current SMS intervention thresholds. Meeting the terms of the compliance agreement for an agreed upon period of time with inspections would provide evidence that the motor carrier was willing and able to comply with applicable statutes and regulations and would result in withdrawal of the proposed unfit SFD. A motor carrier would have limited opportunities for administrative review of any action denying it an entry into a deferral and compliance agreement.

D. Requests To Resume Operations After a Final Unfit Determination

The fourth unfit SFD administrative review available to a motor carrier would be added to establish the new procedures that a motor carrier would follow to resume interstate motor carrier operations following a final unfit SFD. FMCSA would require a motor carrier that has received a final unfit SFD, and wants to begin operating again, to have its safety fitness evaluated. The carrier would also need to have received new safety registration and, if necessary, new operating authority.

The carrier will retain the same USDOT number. See Unified Registration System final rule, August 23, 2013 (78 FR 52608).

Therefore, an unfit motor carrier would be required to submit a corrective action plan with its applications for USDOT and operating authority registration. The corrective action plan must describe the actions the motor carrier completed or is taking to address its safety deficiencies. An unfit motor carrier must receive approval of its corrective action plan from the appropriate Field Administrator before FMCSA would issue a new registration for the motor carrier.

The unfit motor carrier would also be required to demonstrate to FMCSA that it meets the safety fitness standard and is willing and able to comply with all statutory and regulatory requirements before receiving an updated registration to operate. Finally, the unfit motor carrier would have to participate in the New Entrant Safety Assurance Program—subpart D of part 385, or, if applicable, either subpart B of part 385 for Mexico-Domiciled Carriers or subpart H of part 385 for New Entrant Non-North America-Domiciled Carriers, upon resuming motor carrier operations in the United States.

E. Carriers Expected To Receive a Final Unfit SFD

FMCSA estimates that 364 more motor carriers than the number that currently receive a final unsatisfactory safety rating will receive a final unfit SFD after one or more of the administrative review proceedings discussed above. However, these four proceedings provide greater opportunities for motor carriers to comply with the federal safety regulations. For carriers that would have been rated unsatisfactory under the old methodology and would be determined to be unfit under the new methodology, the proposed appeals proceedings give them an opportunity to continue operating while complying with the federal safety regulations under more intense scrutiny from FMCSA. Carriers that do not successfully appeal the proposed unfit SFD, or that choose not to appeal or submit a corrective action plan, would receive a final determination of unfit. In addition, in instances where a motor carrier is

operating under a compliance agreement, a carrier would be issued a final unfit SFD if it violates any of the terms specified in the compliance agreement.

Using MCMIS data from September 2010 to September 2012, the Agency analyzed the hypothetical effect of this proposed compliance agreement rule. The results of the Agency's analysis showed that 490 motor carriers would have received a proposed unfit SFD in the first month of the analysis period—September 2010. To determine how many carriers would receive a final unfit determination within the next 24 months after entering into a compliance agreement in September 2010, the Agency assumed that a carrier with a proposed unfit determination would be required to operate below the more stringent SMS intervention thresholds noted in Table 3 above.

Of the 490 carriers that would have received proposed unfit SFDs in the first analyzed month of September 2010, the Agency's analysis showed that 74 (15%) went inactive or ceased operations within 24 months. Of the remaining 416 carriers, 122 (29%) never had sufficient data in the next 24 months to recalculate their performance measure and, therefore, would be found unfit. Another 169 (41%) would have had sufficient data and would have continued to observe the terms of their compliance agreement and then the proposed unfit would have been retracted, and 125 (30%) would be out of compliance at some time before September 2012 and would be found unfit. This baseline analysis indicated that about half (48%) of the final unfit determinations would occur within the first 6 months of the compliance agreement. The Agency acknowledges that the real rate of carriers becoming unfit is expected to be lower because these carriers would be aware of the consequences of failing to comply with the regulations.

VIII. Implementation of and Transition to Final Rule

A. Proposed MCSAP Requirements

FMCSA proposes one revision to the conditions required for the Agency to provide funds under its MCSAP grant program. FMCSA proposes to amend existing 49 CFR 350.201(a) to add the phrase “by enforcing orders on commercial motor vehicle safety and HM transportation safety.” This change would make it clear that States receiving MCSAP grants would be expected to enforce various orders issued by FMCSA, for example, motor carrier out-of-service orders entered by FMCSA under 49 CFR 385.13, 386.72, 386.73, 386.83, or similar provisions. This provision would assist the stopping of vehicles at the roadside when they are operated by motor carriers that disregarded such out-of-service orders, thereby preventing them from continuing to operate CMVs on the Nation's highways. FMCSA notes that for-hire carriers determined to be unfit will have their operating authority revoked. Therefore, each of the company's vehicles are currently required to be placed out of service during a roadside inspection.

For this population of unfit carriers, the proposed change to the MCSAP rules would impose no additional burden on the States. However, for private motor carriers and exempt for-hire carriers, some States may need legislative or regulatory action to enable their roadside inspectors to place CMVs operated by these carriers out of service. The States would have 3 years from the effective date of the final rule to accomplish these legislative or regulatory actions. FMCSA specifically seeks comments on the impacts to the States from these changes and requests information on implementation impacts that should be considered in finalizing this rule.

B. Implementation of a Final Rule and Transition Provisions

FMCSA proposes to begin applying the proposed methodology to all motor carriers registered with the Agency on the effective date of the final rule. FMCSA proposes that the final rule be effective 90 days after publication. As a result, the proposed unfit SFDs would result from failed BASICs resulting from the monthly update of inspection data or from an investigation initiated on or after the 91st day after publication of the final rule.

FMCSA seeks comments on how the Agency might phase in the implementation of the final rule to lessen the initial burden on the motor carrier industry, the Agency, and its enforcement partners.

FMCSA also proposes procedures for carriers that receive a notification of safety rating and fitness determination under the current provisions of 49 CFR 385.11 in the period before this proposed rule is issued as a final rule and becomes effective. Proceedings regarding fitness determinations for such carriers, including administrative reviews under 49 CFR 385.15 and corrective action plans under 49 CFR 385.17, would continue to be handled under the provisions in existence when the proceeding was initiated until those proceedings are completed.

C. General Statements of Enforcement Policy Regarding Violation Severity Weights and Time Weights

The explanation of the SFD methodologies are contained in proposed appendix B to part 385. Although most elements of appendix B are proposed as regulations, FMCSA proposes to issue certain other elements of appendix B as guidance for regulated entities and the public in the form of general statements of enforcement policy. Such statements would be included as part of the text of appendix B and published in the

Federal Register

(and the Code of Federal Regulations), but they would be designated in the final rule as general statements of enforcement policy.

The elements of the proposed SFD methodology that would be treated as statements of enforcement policy in appendix B to part 385 would include the following:

1. Violation Severity Weights in Tables 1 to 5 in section 5 of appendix B to part 385; and

2. Time Weights for violations in BASICs in section 2.3.2 of appendix B to part 385.

Safety-based violations documented through inspections and associated with each BASIC are assigned severity weights. The stronger the relationship between a violation and crash risk, the higher its assigned weight. The Agency based these weights on the “Carrier Safety Measurement System (CSMS) Violation Severity Weights”

study (December 2010) that quantifies the associations between violation and crash risk. FMCSA adds additional weight for violations that result in a driver or vehicle being placed OOS. This study details how the Agency assigns the violation severity weights.

John A. Volpe National Transportation Systems Center, “Carrier Safety Measurement System (CSMS) Violation Severity Weights,” December 2010.

Publication of the severity and time weights as guidance would advise affected persons and the public of the details of the methodology that the Agency expects to follow. At the same time, it would allow the Agency the flexibility to modify these minor technical elements of the proposed methodology, as needed, based on experience and additional data.

Future revisions or adjustments of these elements would be published in the

Federal Register

, together with an explanation of the basis for the changes. They would not be operative until such publication occurred. If appropriate, public comment would be sought on possible changes in the guidance

elements before final publication and implementation.

As explained earlier in this preamble,

American Trucking Associations, Inc.

U.S. DOT

and other judicial decisions recognize that agencies are to be afforded some deference in determining the level of specificity called for in regulation and related interpretive guidance. Publishing some elements of the SFD methodology as guidance is similar to procedures used in other aspects of the Agency's safety regulations. Adjustments to the severity and time weights would be similar, for example, to the adjustments in the threshold crash rates and out-of-service rates for determining when a motor carrier can be issued a Hazardous Materials Safety Permit.

If the Agency decides to treat any elements of the proposed methodology as guidance, the final rule will clearly identify those elements, publish them with the final rule, and indicate that they are subject to change in accordance with the procedure outlined above.

166 F.3d 374 (D.C. Cir. 1999).

49 CFR 385.407 and Change to FMCSA Policy on Calculating and Publicizing the Driver, Vehicle, and Hazardous Materials Out-of-Service Rates and Crash Rates, 77 FR 38215 (June 27, 2012).

IX. Section-by-Section Description of Proposed Rule

To implement the proposed SFD methodology, FMCSA would amend parts 350, 365, 385, 386, 387, and 395. The primary changes would be in subpart A (§§ 385.1 through 385.21) and appendix B to part 385. Most regulatory changes are to the terms used in the proposed new methodology. FMCSA proposes to make conforming changes in all the places where the terms “satisfactory,” “conditional,” “unsatisfactory,” “less than satisfactory,” and “rating” occur. These include subparts B, D, E, F, H, and I in part 385, as well as part 350, part 365, appendix B to part 386, subparts A and C of part 387, and part 395.

A. Part 350

FMCSA proposes to amend existing 49 CFR 350.201 to add the phrase “by enforcing FMCSA orders on commercial motor vehicle safety and hazardous materials transportation safety and by” in paragraph (a). This provision would make it clear that States receiving MCSAP grants would be expected to enforce various orders issued by FMCSA, for example, motor carrier out-of-service orders and Orders to Cease Operations entered by FMCSA under 49 CFR 385.13, 385.325, 386.72, 386.73, 386.83, or similar provisions for for-hire and private motor carriers. This provision would assist FMCSA in stopping vehicles at the roadside that are operated by motor carriers that disregard such out-of-service orders, and would prevent them from continuing to operate CMVs on the Nation's highways.

B. Part 365

FMCSA proposes to revise §§ 365.109(a)(3) and 365.507(f) to make the language consistent with the proposed new methodology.

C. Part 385

Section 385.1 Purpose and Scope

Conforming amendments would be made to paragraph (a) of this section, to delete references to “safety ratings” and “unsatisfactory.” Current text directing motor carriers to take remedial action when required, and prohibiting motor carriers determined to be unfit from operating a CMV, would remain.

Section 385.3 Definitions and Acronyms

Roughly half of the definitions in § 385.3 would remain substantially the same. However, definitions for the terms “Reviews” and “Safety rating or rating” (including all four subsidiary definitions) would be removed. Definitions of the terms “Acute regulation,” “Assistant Administrator,” “Behavior Analysis and Safety Improvement Category,” “Compliance review,” “Comprehensive investigation,” “Crash,” “Critical regulation,” “Failure standard,” “Field Administrator,” “Inspection,” “Intervention,” “Investigation,” “Measure,” “Operating authority registration,” “Performance standard,” “Registration,” “Roadability review,” “Safety audit,” “Safety event group,” “Safety management controls,” “Safety registration,” and “Unfit” would replace the deleted terms with language to reflect the new SFD terminology and procedures. The new definition of “Compliance review” is much shorter than the definition under “Reviews . . . (1) Compliance review” that is being removed. The current version has extraneous information, such as when such a review may be done and what a possible outcome could be, which is not directly relevant to defining what the term means. The substantive definition of “Preventable accident” would not change, but the term itself would be changed by replacing the word “accident” with the word “crash.” FMCSA uses the terms “crash” and “accident” interchangeably, but prefers the term “crash.”

Section 385.5 Safety Fitness Standard

The section would be revised to add a new paragraph (a) to reflect the inclusion of the alcohol and controlled substances testing requirements in 49 CFR parts 40 and 382. Current paragraphs (a) through (k) would be redesignated as (b) through (l). In addition, in the second sentence of the undesignated introductory paragraph of this section, the words “To meet the safety fitness standard” would be replaced by “To avoid a safety fitness determination of unfit.”

Section 385.7 Factors To Be Considered in Making a Safety Fitness Determination

This section would be revised to add the main data elements of the proposed methodology. The proposed changes to this section would specifically include, in the factors to be considered in the SFD process, information obtained from driver/vehicle inspections, crashes, or investigations. The title of § 385.7 would be changed by replacing the words “determining a safety rating” with the words “making a safety fitness determination,” so that the title would read “Factors to be considered in making a safety fitness determination.”

In the first sentence of the undesignated introductory paragraph, all the words after “The factors to be considered . . .” would be removed and replaced with language stating that the factors to be considered during a safety fitness determination may include information from operations in the United States, Canada, and Mexico from driver/vehicle inspections, an examination of the carrier's records during investigations, or crash data. FMCSA would also remove the term “safety review” because it is obsolete.

Paragraph (a) would be changed by replacing the word “accidents” with the word “crashes.” As was stated in the analysis for § 385.3, FMCSA uses the terms “crash” and “accident” interchangeably, but prefers the use of the term “crash.” Paragraphs (b), (c), (d) and (e) would be revised to set out the different sources of data and the factors considered in the new methodology. In addition, the word “accident” would be replaced with “crash.” Existing paragraph (g) would be redesignated as new paragraph (f). In redesignated paragraph (f), the term “hazardous material,” would be added between the words “CMV” and “and motor carrier safety rules.” A new paragraph (g) would be added to provide for the admissibility as evidence in safety fitness proceedings inspection reports

and data contained in FMCSA's data systems.

Section 385.8 Service and Filing of Documents

A new section 385.8 is proposed to be added to provide specific and clear rules governing the filing and service of documents in safety fitness proceedings.

Section 385.9 Determining a Carrier's Safety Fitness

The title of § 385.9 would be changed to read “Determining a carrier's safety fitness.”

Paragraph (a) would be revised to describe the new methodology in proposed new appendix B to part 385. The proposed appendix describes in detail the methodology and the standards for determining a carrier's fitness.

Existing paragraph (b) would be redesignated as new paragraph (d) and everything after the phrase “Unless otherwise specifically provided in this part, a” would be changed to state that safety fitness determination based upon an investigation of a carrier's safety management controls in accordance with the standard set forth in § 385.5(a) will be issued as soon as practicable. A new paragraph (b) would be added to clarify that a motor carrier's SFD will be based on data received through the date of the proposed SFD under § 385.11(c).

A new paragraph (c) would be added to clarify that the motor carrier's status as unfit would not change during the administrative review process under either § 385.15 or § 385.16, or a review of a request under § 385.18. This new paragraph utilizes a provision moved from current § 385.17(j) with revisions for clarification.

Section 385.11 Notification of Unfit Safety Fitness Determination

Throughout this section, including the heading, changes are made to conform the language to the proposed methodology. In paragraph (a), the words “safety rating resulting from a compliance review” and “the review” would both be replaced by the words “unfit safety fitness determination.” Also, FMCSA is replacing the phrase “FMCSA's headquarters office” in the last sentence of paragraph (a) with the word “FMCSA”. This change would allow the Agency to issue the proposed unfit SFD notice from other FMCSA offices that may be closer to the subject motor carrier or may allow the Agency to realize savings for labor and production costs or contracted services in markets other than Washington, DC Provisions would be added governing service of the notice of proposed unfit SFD on representatives of the carrier in accordance with new § 385.8.

Existing paragraph (b) would be removed because it would no longer be applicable to this proposed rule.

Existing paragraphs (c) through (e) would be redesignated as new paragraphs (b) through (d) with appropriate terminology changes in each paragraph. A new paragraph (e) would be added to alert a motor carrier that it may request FMCSA to perform an administrative review of a proposed or final unfit SFD based upon a claim of unconsidered inspection data as described in proposed new § 385.16.

Existing paragraph (f) would be amended to include appropriate terminology changes to reflect the use of compliance agreements instead of corrective action plans to defer the entry of a final unfit SFD.

A new paragraph (g) would be added to alert a motor carrier of the process set out in new § 385.18 for applying to resume operations after an SFD has become final.

Section 385.12 Revocation Procedures for Unfit Safety Fitness Determinations

A new § 385.12 would provide that issuance of proposed safety fitness determination would also serve as notice to the carrier that its registration would be revoked if the fitness determination becomes final.

Section 385.13 Unfit Motor Carriers: Prohibition on Transportation; Ineligibility for Federal Contracts

Most of the changes we are proposing in this section are conforming amendments to reflect the nomenclature of the proposed methodology. For example, the words “unsatisfactory safety rating” would be replaced throughout with “unfit safety fitness determination.” Paragraph (a)(2) would be amended by removing the last sentence that allows a motor carrier to operate for up to 60 additional days if FMCSA determines that the motor carrier is making a good-faith effort to improve its safety fitness. Although this provision is allowed by statute,

in the interest of safety FMCSA disfavors such extensions, and the Agency is therefore not expressly restating the permissive language in the proposed regulation.

49 U.S.C. 31144(c)(4).

Paragraph (b) would consolidate the existing provisions of paragraphs (b) and (c) prohibiting a Federal agency from using any motor carrier receiving a final unfit determination.

The date the out-of-service order issued under paragraph (d) becomes effective would be the date that the SFD becomes final under paragraph (a). FMCSA seeks comment on this approach. Provisions would also be in revised paragraph (e) to allow for revocation of safety registration and any operating authority registration for any motor carrier receiving a final unfit determination.

Section 385.15 Administrative Review—Material Error

This section is largely based on current administrative review provisions, with some revisions and additions. First, in several paragraphs, the terms “safety rating” or “rating” would be replaced by the term “safety fitness determination,” and the word “unsatisfactory” would be replaced with “unfit.” The title “Assistant Administrator” would be substituted for “Chief Safety Officer.” While Assistant Administrator and Chief Safety Officer are titles for the same position within FMCSA, the change in terminology is made for consistency with the administrative review provisions of 49 CFR part 386.

A new paragraph (b) would specify the minimum requirements for the contents of the petition. New provisions would be added to paragraph (c) to require that the original petition for administrative review be served on the appropriate Field Administrator (which would be the official filing). Copies of the petition for administrative review would also be required to be served both on: (1) Adjudications Counsel for the Assistant Administrator; and (2) with the Agency through the U.S. Department of Transportation, Docket Services. Paragraph (c) also provides the time limits within which a motor carrier must petition for administrative review.

A new paragraph (d) provides the Field Administrator with an opportunity to respond to the petition for administrative review.

Paragraph (e) would allow the Assistant Administrator to ask the motor carrier or the Field Administrator for more information or to attend a conference. If the motor carrier did not provide the information, the Assistant Administrator could dismiss the request for review.

Paragraph (f) would establish the time for a decision by FMCSA on the request for review and provide time frames within which FMCSA would complete its review as soon as practicable.

Paragraph (g) would provide for a standard of review that places the burden on the motor carrier to show material error. It also provides a definition of what constitutes material error for the purpose of such review.

Proposed paragraph (h) provides that the Assistant Administrator makes the final and conclusive decision as to the compliance and inspection data underlying the SFD. It also establishes that in subsequent administrative reviews the Assistant Administrator will not re-review factual matters decided in a prior administrative review.

Proposed paragraph (i) provides that a decision by the Assistant Administrator constitutes final Agency action unless reconsideration is requested.

Proposed paragraph (j) provides the procedures for either the motor carrier or the Field Administrator to petition the Assistant Administrator for reconsideration of a decision. However, the petition does not stay the imposition of a final SFD unless a stay is granted by the Assistant Administrator pursuant to new paragraph (k).

Section 385.16 Request for Review Claiming Unconsidered Inspection Data

Proposed paragraph (a) would provide that a motor carrier may file a request for FMCSA to conduct an administrative review of a proposed unfit SFD because of unconsidered, valid data from an inspection that occurred before the proposed determination. The request would be based on a motor carrier's determination of an FMCSA failure to include inspection data which, if included, would have resulted in a different SFD.

Proposed paragraph (b) would provide that the motor carrier must file its request for administrative review in writing and serve it on the appropriate Field Administrator.

Proposed paragraph (c) would provide that the motor carrier's request for an administrative review of a proposed SFD with unconsidered inspection data must include specific information to be considered a valid request.

Proposed paragraph (d) would provide that such a request must be filed no later than the 10th day after the issuance of the proposed unfit.

Proposed Paragraph (e) would provide that FMCSA would issue a decision and notify the carrier within 10 days after receiving a request from an HM or passenger motor carrier that has received a proposed unfit SFD, and within 20 days after receiving a request from any other motor carrier.

Proposed Paragraph (f) would provide the standard of review of the submitted unconsi

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