Motor Carrier Regulatory Relief and Safety Demonstration Project; Modifications

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

[Docket No. FHWA-97-2287; MC-96-40]

Motor Carrier Regulatory Relief and Safety Demonstration Project;

Modifications

AGENCY: Federal Highway Administration (FHWA), DOT.

ACTION: Notice; request for comments.

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SUMMARY: The FHWA is extending the application period for the Motor

Carrier Regulatory Relief and Safety Demonstration Project (Project),

published in the Federal Register on June 10, 1997. The agency is also

seeking public comment upon proposed modifications to the entry

criteria and reporting requirements of the Project. In the June 1997

notice, the FHWA indicated that it would later publish additional

information clarifying the eligibility criteria and application

process. This notice is that clarifying document and proposes to

provide additional incentives to participating

[[Page 37614]]

motor carriers without adversely impacting highway safety. Motor

carriers operating commercial motor vehicles (CMVs) with a gross

vehicle weight rating (GVWR) between 10,001 and 26,000 pounds, in

interstate commerce, may qualify for exemptions from certain portions

of the Federal Motor Carrier Safety Regulations (FMCSRs) if they

exhibit exemplary safety records. Motor carriers participating in this

Project would have the opportunity to demonstrate they can maintain or

improve their safety records when they are given greater latitude to

select the means by which their safety performance is attained. The

FHWA seeks the comments of all interested parties regarding these

Project modifications, especially comments aimed at aiding the FHWA in

providing substantive industry incentives while maintaining the highest

degree of safety. Upon review of public comment, the FHWA intends to

modify the project, authorize qualified motor carrier participation,

and publish a supplemental notice of final determination.

DATES: Comments must be received no later than August 12, 1998. Written

comments addressing the information collection requirements of this

Project must be received on or before September 11, 1998. Applications

for participation in the Project must be submitted no later January 30,

1999.

ADDRESSES: Signed, written comments must refer to the docket number

appearing at the top of this document and must be submitted to the

Docket Clerk, Docket No. FHWA-97-2287; MC-96-40, U.S. DOT Dockets, Room

PL-401, 400 Seventh Street, SW., Washington, D.C. 20590-0001. All

comments received will be available for examination at the above

address from 10 a.m. to 5 p.m., e.t., Monday through Friday, except

Federal holidays. Those desiring notification of receipt of comments

must include a self-addressed stamped envelope or postcard.

For Internet users, all comments received will be available for

examination at the universal resource locator--http://dms.dot.gov--24

hours each day, 365 days each year. Please follow the instructions on-

line for more information and help.

FOR FURTHER INFORMATION CONTACT: Mr. Robert W. Miller, Office of Motor

Carriers, (202) 523-0178, or Mr. Charles Medalen, Office of the Chief

Counsel, (202) 366-1354, Federal Highway Administration, DOT, 400

Seventh Street, SW., Washington, D.C. 20590. Office hours are from 7:45

a.m. to 4:15 p.m., e.t., Monday through Friday, except Federal

holidays.

SUPPLEMENTARY INFORMATION:

Electronic Availability

An electronic copy of this document may be downloaded using a

computer, modem, and suitable communications software from the

Government Printing Office (GPO) electronic bulletin board service

(telephone: 202-512-1661). Internet users may reach the GPO's web page

at: http://www.access.gpo.gov/su__docs/aces/aaces002.html.

Background

On November 28, 1995, the President signed the National Highway

System Designation Act of 1995 (NHS Act) (Pub. L. 104-59, 109 Stat. 568

(1995)). Section 344 of the NHS Act requires the FHWA to implement a

pilot program under which motor carriers operating CMVs with a GVWR

between 10,001 and 26,000 pounds, in interstate commerce, could qualify

for exemptions from the FMCSRs (49 CFR Part 325 et seq.). In accordance

with the NHS Act, the FHWA developed the Project and published a

detailed description of the Project in the Federal Register on June 10,

1997. There has been limited industry interest to participate in the

Project since the publication date.

Through a series of outreach sessions, the FHWA discovered the

absence of extensive industry interest is due, in part, to a lack of

understanding of how the Project would work and questions about

potential incentives for program participation. The purpose of this

notice is to provide the public with an opportunity to assist the FHWA

in determining whether clear and sufficient incentives have been

included, while maintaining the highest degree of safety. Modifications

have been made to the current details of the Project and additional

exemptions are proposed. The FHWA is seeking all points of view before

implementing these newly proposed parameters as part of the Project.

The FHWA will peruse all suggestions and weigh carefully the facts upon

which they are based.

The FHWA proposes that in order to participate in the Project, a

motor carrier would have to meet the criteria for admission developed

by the Secretary and outlined later in this notice. The criteria for

admission has been modified regarding the definition of ``accident''

and the Project entry accident rate threshold. Motor carriers seeking

to participate are still required to develop a written Safety Control

Plan for the Project. This plan should outline the measures which the

motor carrier would undertake to ensure its current level of safety is

not compromised while operating under the proposed exemptions. The

motor carrier would also enter into a written agreement of

participation with the FHWA in which it would agree to abide by its

Safety Control Plan and to work with the FHWA in generating and

monitoring certain Project data. The FHWA would grant, for the term of

the Project only, an exemption to participating motor carriers from

certain current requirements of the FMCSRs, but such exemption would

apply only to the eligible CMVs and drivers designated by the motor

carrier in its application. The FHWA will evaluate the Project data

throughout the Project, with particular focus upon the significance of

the data with regard to FHWA's regulatory reinvention and zero-base

initiatives. The FHWA would, in accordance with the NHS Act, use this

data to conduct a zero-base review of the need for, and the costs and

benefits of, all the FMCSRs.

The requirements for participation in the Project include several

information collection requirements which must be approved by the

Office of Management and Budget (OMB) under the Paperwork Reduction Act

(PRA) of 1995 (44 U.S.C. 3501-3520). On November 6, 1997, the OMB

reinstated the authorization for the FHWA's submission of these

information collection requirements as provided under OMB No. 2125-

0575, with an expiration date of November 30, 2000.

Analysis of Project data will occur throughout the Project, and

only at such time as that analysis is complete will the FHWA be in a

position to consider other performance-based initiatives. Given the

Project parameters, the FHWA believes that three years of continuous

and sustained motor carrier operations is the minimum amount of time

necessary to draw conclusions about operational safety. In view of the

customary level of activity for a motor carrier, the FHWA, after three

years, should be able to assert, with reasonable certainty, that the

data accumulated with respect to the activity of the class of motor

carriers in this Project is representative of future behavior.

Table of Contents

I. Introduction

II. Current Project Exemptions

III. Proposed Additional Project Exemptions

IV. Criteria For Admission to the Project

V. Applying for participation in the Project

VI. Safety Control Plans

VII. Eligible Drivers

VIII. The Agreement of Participation

IX. Removal from the Project

X. The Final Evaluation

[[Page 37615]]

XI. Preemption

XII. Paperwork Reduction Act of 1995

XIII. Conclusion

I. Introduction

Many commenters to the original June 10, 1997 proposal contended

the design of the Project would discourage motor carrier participation.

The explanation most frequently offered for this belief was that the

paperwork requirements of the Project, both at the time of application

and during the Project, were too burdensome and outweighed the

regulatory relief participating motor carriers would receive. The

commenters strenuously objected to the proposed paperwork requirements,

while noting that substantive exemptions weren't offered. For instance,

it was suggested that most motor carriers would continue to require a

pre-employment road test for new hires even if they were exempt from

that requirement. For these reasons and given the current level of

industry interest, clarifying and amending the Project requirements, as

well as providing additional incentives, seem to be in order. We

believe these modifications will reduce participants' burden and

improve industry interest.

II. Current Project Exemptions

In accordance with the NHS Act, qualified interstate motor carriers

would be exempt from certain regulatory requirements while

participating in the Project. In the June 10, 1997 Federal Register

notice, the regulations described below were those from which

participating motor carriers would be exempt. Those Project exemptions

would continue to be offered. No current exemptions would be removed.

Clarifications and modifications of these exemptions are explained in

this section. Motor carriers participating in the Project are only

exempt from the regulations specified in the Project. A participating

motor carrier may elect to voluntarily comply with any of the

requirements described below as part of its normal business practices.

For the purposes of the Project, however, the motor carriers would be

exempt from those requirements. Project motor carriers, and their

eligible drivers, would, with regard to the interstate operation of

CMVs with a GVWR between 10,001 and 26,000 pounds, be exempt from the

following requirements of the FMCSRs:

Driver Qualifications

Drivers would not be required to prepare, or furnish to the

employing motor carrier, an annual list of violations of motor vehicle

laws, or a certificate in lieu thereof, in accordance with 49 CFR

391.11(b)(8) and 391.27. Motor carriers, however, would be required to

obtain a State driving record as required by 49 CFR 391.23. Further,

drivers would not be required to successfully complete a Driver's Road

Test, or furnish an employing motor carrier an Application For

Employment, in accordance with 49 CFR 391.11(b)(10) and 391.31 and 49

CFR 391.11(b)(11) and 391.21. In addition, motor carriers would not

have to maintain ``complete'' Driver Qualification Files on each driver

in accordance with 49 CFR 391.51. The documents identified above would

not be required to be in the qualification file. Only those documents

from which participating motor carriers are not exempt would be

required to be in the driver qualification file.

Driver Hours-of-Service

Project drivers would not be required to comply with record of duty

status regulations, whether this entails maintenance of a record of

duty status (logbook) in accordance with 49 CFR 395.8, use of a time

card in accordance with 49 CFR 395.1(e), or the use of an interactive

automatic on-board recording device in accordance with 49 CFR 395.15.

Project motor carriers and drivers, however, must observe the

provisions governing maximum driving time, and the use of ill or

fatigued operators in accordance with 49 CFR 395.3 and 392.3.

Additionally, Project motor carriers and their drivers would not

forfeit any other exemptions available under the FMCSRs.

CMV Inspections

While participating in the Project, motor carriers would be exempt

from those requirements pertaining to CMV inspection records and their

retention, in accordance with 49 CFR 396.3 (b) and (c). Exemption would

also be granted from the regulations pertaining to the preparation of

driver vehicle inspection reports and the driver vehicle inspection

requirements ( 49 CFR 396.11 and 396.13 (b) and (c)). In addition,

driveaway-towaway inspections would not be required of Project motor

carriers or their drivers (49 CFR 396.15). Periodic inspections and the

preparation of periodic inspection reports ( 49 CFR 396.17 and 396.21)

would also fall under the exemption. However, motor carriers would not

be relieved of their responsibility to inspect, repair and maintain

their motor vehicles in accordance with 49 CFR 396.3(a). Furthermore,

Project drivers and CMVs would be subject to roadside safety

inspections.

Accident Information

Project motor carriers would be exempt from the requirement that

they maintain an accident register in accordance with 49 CFR 390.15

(b)(1) and (2).

III. Proposed Additional Project Exemptions

The FHWA has received recommendations for additional incentives to

be included in the Project to increase industry interest. The FHWA has

analyzed those recommendations and has determined that the following

additional incentives should be offered:

Driver Qualifications

Drivers would not be required to read or speak the English language

in accordance with 49 CFR 391.11(b)(2), provided they can effectively

communicate with enforcement officials. Motor carriers would not be

required to document investigations of drivers' employment history in

accordance with 49 CFR 391.23(c). Motor carriers would also be relieved

from documenting the annual review of drivers' records in accordance

with 49 CFR 391.25. In addition, relief would be provided regarding

medical examinations and certifications. The current requirement for

drivers to be medically re-examined and certified each 24 months in

accordance with 49 CFR 391.45(b)(1) would be removed for the duration

of the Project, provided participating drivers have a current medical

examination certification prior to entry into the Project. Newly hired

drivers would be required to be medically examined once, prior to entry

into the Project, in accordance with 49 CFR 391.45(a). We believe

participating motor carriers will ensure drivers are physically fit for

duty as part of their normal business practices.

In addition to driver qualification exemptions, motor carriers

would be relieved from the unauthorized passenger transportation

prohibition of 49 CFR 392.60.

Driver Hours-of-Service

The industry has asked the FHWA to reconsider providing relief from

the underlying hours-of-service (HOS) regulations, not just

recordkeeping. The FHWA has evaluated this request and has determined

that some relief might be provided without reducing highway safety.

Most trucks in this weight range are used in local transportation

operations. Drivers return to the home terminal at the end of each work

shift and do not spend overnight periods on the road. If overnight

stays are needed, drivers generally sleep in motels

[[Page 37616]]

because these CMVs are usually not equipped with sleeper berths. These

are optimal conditions for obtaining restorative sleep. The vast

majority of drivers operating this class of CMV are local drivers

operating between 6 a.m. and 9 p.m. Their on-duty hours are usually

regular in nature. They are usually afforded ample time to obtain

sufficient recuperative sleep (9-12 hours off-duty in every 24) during

the optimal time for sleep (midnight to 6 a.m.). Due to the nature of

their operations, they are the least affected by regulatory

restrictions. Additionally, the largest fraction of non-local use is by

private motor carriers of freight, primarily driver-operators in

service industries. The nature of their work is such that they

generally set their own schedules and are not influenced by third-party

customers to the degree a for-hire motor carrier is affected.

The FHWA is, therefore, proposing to allow participating drivers to

be on duty for 12 consecutive hours with no mileage limit and no

constraints on their activities. The premise being that such drivers

perform other functions in addition to driving and will not exceed the

current 10-hour driving limitation. This action would parallel the

exemption allowed by 49 CFR 395.1 (e). As stated previously, drivers

will be required to comply with the driving-time provisions of 49 CFR

395.3(a) and (b).

CMV Inspections

In the June 10, 1997 Federal Register notice, the FHWA relieved

participating motor carriers from performing annual vehicle inspections

in accordance with 49 CFR 391.17. Since we are proposing to exempt

participating motor carriers from the annual inspection, the

participating motor carriers would be exempt from the annual inspector

qualification requirements set forth in 49 CFR 396.19 while

participating in the Project and inspecting program CMVs. Participating

motor carriers would also be relieved of the requirements for brake

inspector qualifications and recordkeeping in accordance with 49 CFR

396.25, except for inspectors working on air brake systems. The

rationale for this is that most of these vehicles are equipped with

hydraulic brakes.

The FHWA seeks public comment on whether these additional

exemptions are appropriate and whether these additional incentives will

increase the industry's interest in participating. The NHS Act requires

the FHWA to ensure the Project is designed to achieve a level of

operational safety ``equal to or greater than'' that under the current

requirements of the FMCSRs. In considering additional exemptions under

this Project, the FHWA carefully weighed whether adequate safety

measures exist to ensure the exemptions do not adversely affect highway

safety.

IV. Criteria for Admission to the Project

The FHWA believes participation in this Project should be limited

to those motor carriers that have exemplary safety records. The agency

further believes that the best measure of an exemplary record would be

an accident rate equal to, or better than, that of the top 25 percent

of motor carriers. The FHWA estimates this accident rate to be 0.5, or

fewer, accidents per one million vehicle miles of travel. Accidents are

those incidents resulting in (1) a fatality, (2) bodily injury to a

person who, as a result of the injury, immediately receives medical

treatment away from the scene of the accident, or (3) one or more motor

vehicles incurring disabling damage as a result of the accident,

requiring the motor vehicle to be transported away from the scene by a

tow truck or other motor vehicle.

This rate is derived from an analysis of Compliance Review (CR)

data, collected for the years 1993 through 1997. The decision to base

this rate on accidents was made after discussions with representatives

from the motor carrier industry. This approach is consistent with the

FHWA's definition of the term ``accident'' as it appears in 49 CFR

390.5.

Note that the FHWA does not maintain any CR or other accident data

specific to motor carriers operating CMVs within the 10,000 pound to

26,000 pound range. Thus, the agency's analysis of the CR data could

not be limited precisely to the population targeted for this Project.

The analysis was, however, limited to only those motor carriers

operating at least one straight truck. The FHWA estimates that between

50 and 75 percent of all straight trucks are within the 10,000 pound to

26,000 pound range. Further, only those motor carriers, in the CR data

base, having three or more years of accident data were considered. The

analysis was further limited to those carriers averaging at least one

million vehicle miles traveled (VMT) over a three year period. This was

done to (1) be consistent with the carrier eligibility requirements

established for this Project, and (2) guard against any bias resulting

from including carriers having an insufficient number of VMT to

determine an accident rate accurately.

For the 271 motor carriers meeting these conditions in the analysis

file, 25 percent had an accident rate of 0.5 or fewer accidents per one

million VMT, based on three or more years of data. Hence, the cut-off

for identifying the top 25 percent of carriers based on this analysis

is 0.5.

Using CR data allows us to analyze accident data at the carrier

level. No other data base available to the agency allows for such an

analysis. Although it may be argued that by using such data, the agency

is basing its accident rate cut-off point on a group of motor carriers

already identified as substandard, only 36 out of 223, or 16 percent of

these carriers had a SafeStat crash safety evaluation area (SEA) score

greater than 75, thereby indicating a potentially high accident rate

(for 48 of the carriers, the SEA score could not be obtained or

inferred).

Furthermore, overall accident statistics produced from this file

are not dramatically different from accident statistics generated from

other data sources. For example, the average accident rate across all

carriers based on this analysis file (composed of carriers with

straight trucks, having at least three CRs between 1993 and 1997, and

an average three year VMT of one million or higher) is 0.75 accidents

per million VMT. If all motor carriers having had three or more CRs

between 1993 and 1997 are considered, with no constraints on power unit

composition or VMT, the accident rate drops slightly to 0.72. Using the

General Estimates System (GES) data base for purposes of comparison,

the overall accident rate between 1993 and 1996 for straight and

combinations trucks is 0.6 accidents per one million VMT.

The FHWA, therefore, proposes to modify the Project participation

requirement regarding accident rates by eliminating the ``police-

reportable'' accident definition and using the definition of an

``accident'' in 49 CFR 390.5. Furthermore, the FHWA proposes an

accident rate, for entry into and exit from the Project, of no more

than 0.5 accidents per million VMT, averaged over the most recent 36

months. Motor carriers with less than one million VMT in the most

recent 36 months would be eligible for the Project if they have no more

than one accident during that period of time. Two or more accidents

would result in a motor carrier being declared ineligible for this

Project. It is important to note that the accidents and mileage used in

calculating this accident rate only include vehicles eligible for the

Project and no others.

The FHWA seeks public comment on these proposed criteria. Is an

accident rate of no more than 0.5 accidents per 1,000,000 VMT a prudent

requirement in view of the need to limit

[[Page 37617]]

participation to those carriers with exemplary safety records? Are

there other tenable approaches? If yes, what data or rationale support

them?

The criteria for admission to the Project has otherwise remained

the same as published in the June 10, 1997 Federal Register, except for

the change regarding the definition of an accident and the accident

rate for Project eligibility described above. No other criteria

modifications are being proposed for admission to the Project. Each

motor carrier applying for admission to the Project must satisfy the

following 7 prerequisites:

1. The motor carrier operates in interstate commerce.

2. The motor carrier operates CMVs having a GVWR between 10,001 and

26,000 pounds.

Note: CMVs designed to transport more than 15 passengers

(including the driver), or used to transport hazardous materials in

placardable quantities, as defined in regulations issued by the

Secretary of Transportation under the Hazardous Materials

Transportation Act (49 U.S.C. 5101 et seq.), are not eligible to

participate in this Project.

3. The motor carrier does not currently have a Safety Fitness

Rating of ``Unsatisfactory'' issued by the FHWA. Motor carriers that

have not received a safety rating issued by the FHWA are eligible for

this Project.

4. For CMVs eligible for this Project, the motor carrier has an

accident rate equal to or less than 0.5 accidents per million VMT,

averaged over the most recent 36 months. The term ``accident'' is

defined in 49 CFR 390.5. For example, a motor carrier which has had 2

accidents and has 5 million VMT by eligible CMVs over the most recent

36 months would be eligible for the Project based upon the following

calculation: 2 divided by 5 equals 0.4, which is less than 0.5. This

calculation is to be based solely upon the accidents and mileage of

those CMVs which have a GVWR between 10,001 pounds and 26,000 pounds.

Motor carriers with less than one million VMT in the most recent 36

months are eligible for the Project if they have not had more than 1

accident during that period of time. Two or more accidents would result

in ineligibility for this Project.

5. The motor carrier is active on a year-round basis. ``Seasonal''

motor carriers are not eligible for the Project.

6. The drivers assigned by the motor carrier for participation in

the Project have not been convicted, in the past three years, of:

(a) An offense that directly arose out of a fatal traffic accident;

(b) Driving a CMV while under the influence of alcohol, including;

(i) Driving a CMV while the person's alcohol concentration is 0.04

percent or more;

(ii) Driving under the influence of alcohol, as prescribed by State

law; and

(iii) Refusal to undergo testing for alcohol or controlled

substances as required by any State or jurisdiction;

(c) Driving a CMV while under the influence of a controlled

substance;

(d) Leaving the scene of an accident involving a CMV; or

(e) A felony involving the use of a CMV, including the use of a CMV

in the commission of a felony involving manufacturing, distributing, or

dispensing a controlled substance.

7. The motor carrier has a written Safety Control Plan for this

Project. This plan must, in some form, clearly detail the measures

which the motor carrier will undertake to ensure the current level of

safety is not compromised by the operation of the Project exemptions.

This document may entail no more than submitting pertinent portions of

a company's current Operating Plan or similar document. An outline for

the creation of this document is also available, upon request, from the

FHWA. In its application, the motor carrier would agree to abide by its

Safety Control Plan. More detailed information regarding the Safety

Control Plan is provided later in this document.

V. Applying for the Project

In the Notice of Final Determination published in the Federal

Register on June 10, 1997, motor carriers were required to submit, in

writing, their requests for admission to the Project within 180 days of

the publication of the notice. The application deadline was extended to

June 30, 1998 (See the December 16, 1997 issue of the Federal

Register). The FHWA also made known that additional information

clarifying the eligibility criteria and application process would be

published at a later date. This notice is that clarifying document. To

ensure a continuous opportunity for interested motor carriers to apply

for the Project under the new criteria, the FHWA is further extending

the application deadline until January 30, 1999.

There will be no change in the application process during this

notice and comment period. Interested motor carriers should submit, in

writing, to the FHWA, the following:

(1) A completed Motor Carrier Identification Report (Form MCS-150),

which would provide updated information about the overall operation of

the motor carrier;

(2) The following certification, duly executed by the Chief

Operating Officer of the motor carrier:

I certify that (Name of motor carrier) operates CMVs having a GVWR

between 10,001 pounds and 26,000 pounds in interstate commerce, on a

year-round basis, and is not rated ``Unsatisfactory'' by the FHWA. I

certify the company has approved the attached Safety Control Plan and

will employ these controls throughout the Project. I certify that the

motor carrier EITHER: (1) has an accident rate equal to or less than

0.5 accidents per million vehicle miles traveled (VMT), averaged over

the most recent 36 months, based upon ________ accidents and ________

VMT, by CMVs having a GVWR between 10,001 pounds and 26,000 pounds, OR

(2) has ________ actual VMT (less than one million) over the most

recent 36 months and has experienced ________ (less than 2) accidents

involving the subject vehicles over that period of time.

I hereby submit a roster of ______ company drivers for

participation in the Project. The roster includes driver names, license

numbers, State of licensure, and dates of employment. I certify that

(1) each driver is eligible to participate in the Project, (2) each

operates CMVs having a GVWR between 10,001 pounds and 26,000 pounds,

and (3) I have independently verified that the driving record of each

does not include any convictions within the past 3 years of any of the

disqualifying offenses enumerated in the Project criteria. I have read

and agree to be bound by the requirements for notification and

submission of information to the FHWA outlined in the section entitled

``The Agreement'' in the Notice of Final Determination of this Project.

Signature:-------------------------------------------------------------

Name:------------------------------------------------------------------

Title:-----------------------------------------------------------------

Name of Motor Carrier:-------------------------------------------------

(3) A Safety Control Plan;

(4) A driver roster containing drivers' names, driver license

numbers, State of licensure, and dates of employment. This would enable

the FHWA to advise enforcement officers of the identity of Project

drivers and to monitor their driving performance.

Note: The motor carrier applicant would be required to submit

the names of ALL drivers eligible for participation in the Project.

The FHWA is aware that some motor carriers with large operations

may wish to volunteer a particular terminal, geographic region, or

State operation for this Project. The FHWA anticipates no difficulty in

affording motor carriers flexibility with this form of selection.

[[Page 37618]]

The FHWA would carefully scrutinize any suggested ``subunits'' to be

certain they advance the congressional mandate, particularly the

requirement that this Project examine a broad cross-section of the

motor carrier industry. All of the above items should be assembled and

submitted to: United States Department of Transportation, Federal

Highway Administration, 10-26 Safety Demonstration Project, HMT-1, 400

Seventh Street, SW., Washington, D.C. 20590-0001.

VI. Safety Control Plans

Motor carriers interested in applying for the Project must submit a

Safety Control Plan (SCP). Through outreach sessions with the industry,

the FHWA has discovered there is some confusion regarding the content

of such a plan. For the purposes of this Project, the SCP should

provide the answers to the following:

During the Project, how will the motor carrier applicant ensure:

(1) Project drivers are qualified to operate commercial motor

vehicles,

(2) Project vehicles are in safe operating condition,

(3) Project drivers are complying with the maximum hours-of-service

requirements, and

(4) It will receive a timely warning if Project drivers are

violating the FMCSRs or the Agreement of Participation.

The FHWA believes the preparation of the SCP should be

straightforward for most motor carriers which have the exemplary safety

record required to qualify for the Project. Experience has shown that

the vast majority of motor carriers who have exemplary safety records

also have a well-defined set of safety controls. For this Project, the

FHWA proposes that an existing set of company operating instructions,

whether currently included in a manual or are a set of policy

documents, could be used to satisfy the SCP requirement, if the motor

carrier applicant directed the FHWA to the sections which satisfy the

SCP requirements.

Where an initial SCP must be created, the FHWA believes that an

explanation of the day-to-day safety practices and controls which the

motor carrier employs, or will employ, should suffice. Upon review of

the motor carrier's SCP, the FHWA must be able to identify what safety

controls are in place, and be able to evaluate them in terms of the

level of safety they could be expected to produce. A model outline of

an SCP is available from the FHWA upon request.

VII. Eligible Drivers

Drivers operating CMVs with a GVWR between 10,001 pounds and 26,000

pounds are eligible for the Project. The FHWA will, however, permit a

Project motor carrier to direct Project drivers to operate vehicles

outside of the Project weight class if: (1) the driver operates Project

vehicles at least 25 percent of the time, and (2) the motor carrier can

provide the FHWA with a reasonable calculation of the total number of

VMT accrued outside the Project, and the total number of VMT accrued

within the Project, for each such driver. The FHWA can take such

information into account when conducting its evaluation of the Project,

and thus preserve the integrity of that evaluation. Motor carriers and

their drivers are advised to be alert to the fact that when activity is

conducted outside the Project, that activity is subject to all

provisions of the FMCSRs. For instance, a driver who operates a CMV

with a GVWR in excess of 26,000 pounds must, in accordance with 49 CFR

395.8, account for his or her hours-of-service for the previous 8

consecutive days even though the driver, during the earlier period, was

exempt from the requirements of 395.8 by virtue of being engaged in

Project activity.

VIII. The Agreement of Participation

If the FHWA finds that a motor carrier applicant is qualified for

admission to the Project, it will, by letter, admit the motor carrier

to the Project. Participation in the Project may commence immediately

upon receipt of the admission letter. A copy of this letter should be

made available to each Project driver to serve as the credential

authorizing his/her participation in the Project.

By agreement, Project motor carriers promise to report certain

information to the FHWA. The reporting requirements have remained

relatively the same as in the June 10, 1997 notice. The changes in the

reporting criteria primarily relate to accident reporting and

notification of changes to the Safety Control Plan. To assist motor

carriers in better understanding these reporting criteria, the

following additional guidance is being provided:

(1) Within 10 business days following the occurrence of a fatal

accident, and within 30 business days following the occurrence of a

non-fatal accident, involving a Project driver, the motor carrier would

be required to submit details of that accident to the FHWA. The

information would have to be sufficient enough to enable the FHWA to

locate the corresponding police accident report. The actual police

accident report will not be required to be submitted. Normally, it

would be sufficient to provide the date and physical location of the

accident, the vehicle number, and the driver's name and license number.

If the FHWA needs nonconfidential insurance-related information, it

would so advise the motor carrier.

Note: This information would have to be accompanied by a revised

calculation of accidents per million VMT, indicating the figures

used to make the calculation.

The motor carrier would be subject to removal from the Project (see

below) should this accident rate exceed 0.5 accidents per million VMT

for the most recent 36 month period. Project motor carriers with less

than one million VMT in the most recent 36 months and having two or

more accidents occur during the most recent 36 months would also be

subject to removal.

(2) Immediately following the addition of a new driver eligible for

the Project, the motor carrier would be required to submit an update to

the roster of Project drivers, including the name, driver's license

number, and date of employment of each driver added. A new and complete

driver roster would not be required each time the motor carrier intends

to use a new driver in the Project. This could be accomplished via

facsimile (FAX) , the U.S. Mail, or E-Mail and will be explained in

detail in the agreement letter. Without a complete and accurate roster

of the drivers participating in the Project, the FHWA would be unable

to offer real-time assistance to enforcement personnel at roadside

inspection locations.

(3) Removal of Project drivers would call for a procedure similar

to that described in (2) above.

(4) Within 10 business days, the motor carrier would be required to

notify the FHWA when the motor carrier is sold, goes out of business,

changes its name, ceases to operate, ceases to operate in interstate

commerce, ceases to operate CMVs with GVWRs between 10,001 pounds and

26,000 pounds, or ceases to conduct operations on a year-round basis.

(5) Within 30 business days, the motor carrier would be required to

notify the FHWA when the motor carrier chooses to amend its Safety

Control Plan, or is unable, for any reason, to carry out the terms of

the Safety Control Plan which it developed for this Project. A

resubmission of the entire Safety Control Plan would not be necessary.

Participating motor carriers would submit, in writing, an addendum to

the plan which describes the changes made.

(6) Semi-annually, Project motor carriers would be required to

provide the FHWA with a current calculation of

[[Page 37619]]

accidents per million VMT for the preceding 36 months and indicate the

figures used to arrive at the calculation. The first calculation would

be submitted upon the sixth-month anniversary of the date of admission

to the Project. Subsequent calculations would be due every six months

thereafter.

IX. Removal From the Project

The FHWA does not anticipate that any motor carrier which has

satisfied the stringent admission criteria of this Project will

experience any deterioration of its safety record. However, should this

occur, the FHWA would, consistent with its duty under the NHS Act, take

all steps necessary to protect the public interest, as well as the

integrity of the Project. Participation in this Project is voluntary,

and the FHWA would retain the right to revoke a motor carrier's

privilege to participate in the Project if its safety performance poses

a threat to highway safety. Participating motor carriers would not be

exempt from roadside inspections, compliance reviews or enforcement

actions pertaining to the remaining regulations from which they are not

exempt, or on those portions of their operations which would not be a

part of the Project. Also, Project drivers who pose a threat to highway

safety would, at a minimum, be subject to immediate revocation of their

privilege to participate in the Project.

Should the FHWA find the highway operations of a Project motor

carrier have placed the safety of the public in jeopardy, the agency

would remove the motor carrier from the Project. Should the three-year

accident rate of a Project motor carrier exceed 0.5 per million VMT for

the most recent 36 month period, the motor carrier would be subject to

disqualification. Additionally, Project motor carriers that incur two

or more accidents while accruing less than one million VMT in the most

recent 36 months would also be subject to disqualification.

The FHWA would also immediately remove any Project driver convicted

of any of the offenses enumerated under item 6 of the Criteria for

Admission to the Project. Such driver convictions would not necessarily

result in the Project motor carrier's removal. It could, however,

result in more intensive scrutiny of the Project motor carrier's

operation.

X. The Final Evaluation

At the conclusion of the Project, the FHWA would conduct an

evaluation of the Project. The principal objective of the evaluation

would be to provide input to the FHWA's ongoing zero-base regulatory

review. Simply put, we would determine whether a group of exemplary

motor carriers can operate a specific class of CMVs as safely without a

lot of regulation as it could when subject to the entire body of the

FMCSRs.

The evaluation will focus upon operational safety by comparing the

collective experience of Project motor carriers and drivers during the

Project with that prior to the Project. The evaluation will also

compare the collective experience of Project motor carriers with the

experience of motor carriers not participating in the Project. These

comparisons will be accomplished through the use of motor carrier

performance data obtained from Federal and State information systems,

as well as Project data reported to the FHWA by the participating motor

carriers.

The FHWA is cognizant of the economic realities which underlie the

suggestion that it should assure motor carriers that the exemptions

that would be allowed during this Project would continue beyond the

three-year life of this pilot. It is possible that the exemptions would

continue in some form. The case for permanent regulatory change,

however, must be made by using valid supporting data. The agency

recognizes that strong participation in this Project could generate

data which may support meaningful, performance-based improvements of

the current regulatory scheme. The FHWA cannot predict what the Project

data will show, or what regulatory changes, if any, would be supported.

After the first two years of the Project, the FHWA would analyze the

Project data. Depending upon the data and its analyses, indications of

possible regulatory changes could result.

XI. Preemption

In response to docket comments expressing concern about the

possible enforcement of intrastate regulations that would not be

compatible with the requirements of this Project, a supplemental notice

was published on October 29, 1996 (61 FR 55835) seeking comment on the

appropriate use of Federal preemption in this Project. Eight comments

to the supplemental notice were received. Five were from trade groups,

one from a motor carrier, one from a union, and one from a safety

advocacy group. Four were in favor of the exercise of Federal

preemption, two were opposed to it, and two offered no opinion. No

comments were received from the States.

The FHWA will not pursue preemption with regard to this Project.

For some time, however, through various Federal initiatives, foremost

of which is the program of grants to States known as the Motor Carrier

Safety Assistance Program (MCSAP), the States and the Federal

government have been working together to achieve a high degree of

uniformity between State and Federal motor carrier regulation and their

enforcement. At the same time, the Federal-State partnership has

resulted in a better understanding of regulatory and enforcement

problems. Thus, a new Federal program, though it may necessitate

corresponding changes in State enforcement activity, is more readily

understood by State officials. The FHWA believes that the Federal-State

partnership is capable of absorbing the changes which this Project

requires.

Currently, 26 States and Territories automatically adopt revisions

to the FMCSRs. It is reasonable to believe those States and Territories

would accept the pilot Project and its attendant exemptions while

permitting examination of the effect of performance-based standards on

highway safety. The FHWA will renew it's dialogue with the various

States to reaffirm their understanding of the Project and ensure proper

coordination and communication is accomplished.

XII. Paperwork Reduction Act of 1995

The FHWA is aware that this Project would impose special

recordkeeping and reporting requirements upon participating motor

carriers. The FHWA believes the paperwork requirements proposed in this

document are absolutely necessary to conduct this Project and to ensure

the safety of the public on the highways. For instance, in the absence

of a roster of drivers participating in the Project, the FHWA would be

unable to assist roadside enforcement officials in the conduct of their

duties. The FHWA also believes that most of the remaining records which

would be required by this Project are routinely maintained by most

motor carriers in the course of their day-to-day operations.

The voluntary participants in this program would be required to

comply with information collection requirements which are subject to

review by the OMB under the PRA. Persons are not required to respond to

a collection of information unless it displays a valid OMB control

number. The information collection requirements related to this Project

have been approved by the OMB until November 30, 2000, and assigned OMB

Control No. 2125-0575.

[[Page 37620]]

Generally, Federal Register concerning each collection of

information. Comments on the information collections proposed in this

notice will be considered by the FHWA in its request for long-term

approval. With respect to the collections of information described

below, the FHWA invites comments on: (1) Whether the proposed

information collections are necessary for the proper performance of the

functions of the agency, including whether the information will have

practical utility; (2) the accuracy of the FHWA's estimate of the

burden of the proposed information collections, including the validity

of the methodology and assumptions used; (3) ways to enhance the

quality, utility, and clarity of the information to be collected; (4)

ways to minimize the burden of these information collections upon those

who are to respond, including the use of automated collection

techniques, and other forms of information collections technology.

The title used to identify the information collections proposed in

this notice and submitted for OMB's approval is ``Motor Carrier

Regulatory Relief and Safety Demonstration Project.''

This Federal Register notice proposes a voluntary pilot Project. In

return for receiving exemptions from certain requirements of the

FMCSRs, each Project motor carrier would be required to develop and/or

furnish certain information about its operations. It is anticipated

that the initial application will require about one-half hour to

complete. This document is necessary to identify those motor carriers

that believe they are eligible to participate in the Project, and to

indicate their desire to participate in the Project. The Safety Control

Plan, outlining the safety management measures the motor carrier would

have in place to ensure that it would achieve the appropriate level of

operational safety during the Project, would require approximately one

and one-half hours to prepare. This document would be subject to

examination by the FHWA, and would be used to assist the FHWA in

ensuring that Project participants did not neglect those aspects of

motor carrier safety which are normally addressed by the regulations

from which they are temporarily exempt. The Safety Control Plan would

require approximately one and one-half hours to prepare. Further,

participating motor carriers would be required to submit to the FHWA

the name, driver's license number, and date of employment of each

participating driver. The motor carrier would also be required to

advise the FHWA immediately of any changes in this information. These

collections and submissions of information are necessary in order to

effectively grant Project exemption to identifiable operators of CMVs

and to permit the performance of each to be monitored and evaluated. It

is estimated that the reporting and recordkeeping burden for these

items would be one hour.

It is also proposed that each accident involving Project drivers

and/or Project vehicles would be reported to the FHWA as it occurs

(within 10 or 30 business days, depending upon severity). Each Project

motor carrier would also calculate and submit its accident rate per

million VMT on a semi-annual basis, and advise the FHWA if that rate

exceeds 0.5. This information is necessary in order to identify those

motor carriers whose safety performance is declining during the Project

and would also be used to assist in comparing the performance of the

exempt motor carriers with the performance of those which remain

subject to the FMCSRs. The annual reporting and recordkeeping burden

for this information collection is estimated to be one-half hour.

The most likely respondents to this information collection will be

motor carriers operating CMVs with a GVWR between 10,001 pounds and

26,000 pounds, operated in interstate commerce, have a satisfactory

safety rating or is not rated, and have an accident rate less than 0.5

per million VMT. The approximate number of motor carriers currently

eligible to participate in the Project is 33,000. Therefore, it is

estimated that the total annual reporting and recordkeeping burden will

be 275 hours.

XIII. Conclusion

The FHWA welcomes comment on any and all aspects of these proposed

changes to the Project from all interested parties. Upon review of

public comment, the FHWA intends to modify the project, authorize

qualified motor carrier participation, and publish a supplemental

notice of final determination.

(49 U.S.C. 31136 and 31141; 49 CFR 1.48)

Issued on: July 7, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98-18539 Filed 7-10-98; 8:45 am]

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