Beyond Compliance Program |
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T. F. Scott Darling, III
Federal Motor Carrier Safety Administration
20 April 2016
[Federal Register Volume 81, Number 76 (Wednesday, April 20, 2016)]
[Notices]
[Pages 23351-23354]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-09118]
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DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety Administration
[Docket No. FMCSA-2015-0124]
Beyond Compliance Program
AGENCY: Federal Motor Carrier Safety Administration (FMCSA), DOT.
ACTION: Notice; request for comment.
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SUMMARY: The Fixing America's Surface Transportation (FAST) Act
requires FMCSA to implement a ``Beyond Compliance'' program no later
than 18 months after the enactment of the Act. Through this proposed
program, the FMCSA Administrator must allow recognition, either through
credit recognized by a new Beyond Compliance Behavior Analysis and
Safety Improvement Category (BASIC), or an improved Safety Measurement
System (SMS) percentile, for a motor carrier that: (1) Installs
advanced safety equipment; (2) uses enhanced driver fitness measures;
(3) adopts fleet safety management tools, technologies, and programs;
or (4) satisfies other standards determined appropriate by the
Administrator. The FAST Act also requires that the Agency provide the
opportunity for notice and comment on a process for identifying and
reviewing advanced safety equipment, enhanced driver fitness measures,
fleet safety management tools, technologies, and programs, and other
standards for use by motor carriers to receive recognition. This
proposed program will not allow relief from regulatory requirements.
This notice satisfies that requirement to seek comments on this
program. Comments and data received in response to this notice will be
used to further develop the Beyond Compliance program.
DATES: Comments must be received on or before June 20, 2016.
ADDRESSES: You may submit comments bearing the Federal Docket
Management System (FDMS) Docket No. FMCSA-2015-0124 using any of the
following methods:
Federal eRulemaking Portal: Go to www.regulations.gov.
Follow the on-line instructions for submitting comments.
Mail: Docket Management Facility; U.S. Department of
Transportation, Room W12-140, 1200 New Jersey Avenue SE., Washington,
DC 20590-0001.
Hand Delivery or Courier: West Building Ground Floor, Room
W12-140, 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and
5 p.m., ET, Monday through Friday, except Federal Holidays.
Fax: 1-202-493-2251.
FOR FURTHER INFORMATION CONTACT: Ms. Theresa Rowlett, 1200 New Jersey
Avenue SE., Washington, DC 20590, Telephone (202) 366-6406,
theresa.rowlett@dot.gov.
SUPPLEMENTARY INFORMATION:
Submitting Comments
If you submit a comment, please include the docket number for this
notice (FMCSA-2015-0124), indicate the specific section of this
document to which each comment applies, and provide a reason for each
suggestion or recommendation. You may submit your comments and material
online or by fax, mail, or hand delivery, but please use only one of
these means. FMCSA recommends that you include your name and a mailing
address, an email address, or a phone number in the body of your
document so that FMCSA can contact you if there are questions regarding
your submission.
To submit your comment online, go to http://www.regulations.gov,
put the docket number, FMCSA-2015-0124, in the keyword box, and click
``Search.'' When the new screen appears, click on the ``Comment Now!''
button and type your comment into the text box on the following screen.
Choose whether you are submitting your comment as an individual or on
behalf of a third party and then submit.
If you submit your comments by mail or hand delivery, submit them
in an unbound format, no larger than 8\1/2\ by 11 inches, suitable for
copying and electronic filing. If you submit comments by mail and would
like to know that they reached the facility, please enclose a stamped,
self-addressed postcard or envelope.
We will consider all comments and material received during the
comment period and may draft an additional notice of program
development based on your comments and other information and analysis.
Viewing Comments and Documents
To view comments, as well as any documents mentioned in this
preamble as being available in the docket, go to http://www.regulations.gov. Insert the docket number, FMCSA-2015-0124, in the
keyword box, and click ``Search.'' Next, click the ``Open Docket
Folder'' button and choose the document to review. If you do not have
access to the Internet, you may view the docket online by visiting the
Docket Management Facility in Room W12-140 on the ground floor of the
DOT West Building, 1200 New Jersey Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., E.T., Monday through Friday, except Federal
holidays.
Privacy Act
In accordance with 5 U.S.C. 553(c), DOT solicits comments from the
public to better inform its program policy development process. DOT
posts these comments, without edit, including any personal information
the commenter provides, to www.regulations.gov, as described in the
system of records notice (DOT/ALL-14 FDMS), which can be reviewed at
www.dot.gov/privacy.
Background
Motor Carrier Safety Advisory Committee (MCSAC) Tasking
On March 30, 2015, FMCSA tasked the MCSAC with providing
recommendations to the Agency on the potential benefits and feasibility
of voluntary compliance and ways to credit carriers and drivers who
initiate and establish programs that promote safety beyond the
standards established in FMCSA regulations. The Agency specifically
asked for the views of the MCSAC on this concept, with any data or
analysis to support it with regard to three basic areas:
1. What voluntary technologies or safety program best practices
would be appropriate for beyond compliance?
2. What type of incentives would encourage motor carriers to invest
in technologies and best practices programs?
3. How would FMCSA verify the voluntary technologies or safety
programs were being implemented?
The Agency received the MCSAC's letter report on September 21,
2015. The MCSAC noted that the ideas in the report were not based on a
full discussion on the merits; rather, these ideas were suggested and
supported by a variety of MCSAC members. It was the Committee's
intention to provide FMCSA with a broad range of ideas that address the
questions the Agency laid out in the Task Statement from the diverse
group of stakeholders that constitute the MCSAC membership.
Additionally, the MCSAC noted that the inclusion of ideas in this
report was not based on a discussion of whether sufficient data exists
to support the use of the relevant incentive or on cost/benefit
considerations. A copy of the
[[Page 23352]]
Task Statement and the letter report are included in the docket for
this program referenced above.
April 2015 Federal Register Notice
On April 17, 2015, FMCSA issued a Federal Register notice
requesting comment for possible development of a Beyond Compliance
program. FMCSA sought responses to the following specific questions and
encourages the submission of any other reports or data on this issue.
1. What voluntary technologies or safety program best practices
would be appropriate for a Beyond Compliance program?
2. What safety performance metrics should be used to evaluate the
success of voluntarily implemented technologies or safety program best
practices?
3. What incentives would encourage motor carriers to invest in
technologies and best practices programs?
a. Credit on appropriate SMS scores (e.g., credit in Driver Fitness
for use of an employer notification system)?
b. Credit on ISS scores?
c. Reduction in roadside inspection frequency?
d. Other options?
4. What events should cause the incentives to be removed?
a. If safety goals for the carrier are not consistently achieved,
what is the benefit to the motoring public?
5. Should this program be developed by the private sector like
PrePass, ISO 9000, or Canada's Partners in Compliance (PIC)?
6. How would FMCSA verify that the voluntary technologies or safety
programs were being implemented?
Forty-four responsive comments were received. The majority of
commenters supported the idea of a program that gave recognition for
voluntarily exceeding the requirements. However, 13 commenters were
vendors with products or programs that could receive additional sales
as a result of this program.
The United Motorcoach Association (UMA), the Owner Operator and
Independent Driver Association (OOIDA) and Dale Chandler indicated that
they were opposed to a Beyond Compliance program. Reasons cited
included concerns that this type of program would be biased against
small motor carriers that could not afford the investment and that this
program would take resources away from FMCSA's safety missions.
Fixing America's Surface Transportation (FAST) Act
In December 2015, Congress passed the Fixing America's Surface
Transportation (FAST) Act (Pub. L. 114-94, 129 Stat. 1312 (Dec. 4,
2015)) which requires FMCSA to implement a ``Beyond Compliance''
program no later than 18 months after the enactment of the Act. Section
5222 specifically requires that FMCSA allow recognition, including
credit or an improved SMS percentile, for a motor carrier that: (1)
Installs advanced safety equipment; (2) uses enhanced driver fitness
measures; (3) adopts fleet safety management tools, technologies, and
programs; or (4) satisfies other standards determined appropriate by
the Administrator.
This section of the FAST Act also prescribes that the Administrator
must carry out the program by either incorporating a methodology into
the Compliance, Safety, Accountability (CSA) program; or establishing a
safety Behavior Analysis Safety Improvement Category (BASIC) in SMS.
In developing the Beyond Compliance program, the Agency must
develop a process for identifying and reviewing advanced safety
equipment, enhanced driver fitness measures, fleet safety management
tools, technologies, and programs, and other standards for use by motor
carriers to receive recognition, including credit or an improved SMS
percentile. Section 5222 prescribes that this process must provide for
a petition process for reviewing advanced safety equipment, enhanced
driver fitness measures, fleet safety management tools, technologies,
and programs, and other standards; and seek input and participation
from industry stakeholders, including commercial motor vehicle drivers,
technology manufacturers, vehicle manufacturers, motor carriers, law
enforcement, safety advocates, and the MCSAC. As noted above, the MCSAC
was already consulted on this program. This notice seeks comments from
other noted parties.
In Section 5222(e) of the FAST Act, Congress provided the
Administrator with the authority to monitor motor carriers that receive
recognition through a no-cost contract. This means that the costs for
monitoring this program would be charged to the motor carrier by the
third party contractor. FMCSA is currently completing the acquisition
planning process required to establish this no-cost contract.
FMCSA must maintain a publicly accessible Web site that provides
information on--(1) the advanced safety equipment, enhanced driver
fitness measures, fleet safety management tools, technologies, and
programs eligible for recognition; (2) any petitions for review of
advanced safety equipment, enhanced driver fitness measures, fleet
safety management tools, technologies, and programs, and other
standards; and (3) any relevant statistics relating to the use of
advanced safety equipment, enhanced driver fitness measures, fleet
safety management tools, technologies, and programs, and other
standards.
Section 5222 of the FAST Act requires initiation of the Beyond
Compliance Program within 18 months from the date of the Act, and
section 5223 of the FAST Act prohibits the display of certain important
safety information on the Agency's SMS Web site until the Beyond
Compliance program is initiated. Once the program is initiated, and
within 3 years after the date of enactment of the FAST Act, FMCSA must
submit to the Committee on Transportation and Infrastructure of the
House of Representatives and the Committee on Commerce, Science, and
Transportation of the Senate a report on the number of motor carriers
receiving recognition and the safety performance of such carriers.
Listening Sessions
On December 24, 2015 (80 FR 80447), FMCSA announced in the Federal
Register that it would be holding two listening sessions on the Beyond
Compliance program. The sessions were held on January 12 and 31, 2016,
to solicit information on the potential benefits and feasibility of
voluntary compliance and ways to credit carriers who initiate and
establish programs that promote safety beyond the standards established
in FMCSA regulations. The listening sessions were intended to provide
interested parties with an opportunity to share their views on this
topic with Agency representatives, along with any data or analysis they
may have. All comments were transcribed and have been placed in the
docket referenced above. This input was considered by FMCSA in
developing the proposed program described below. Additional listening
sessions are being planned for Louisville, KY, and Chicago, IL, on
April 1 and 25, 2016, respectively. A separate notice will be published
with the times and meeting locations for these listening sessions.
Proposed Program
Below is a description of FMCSA's proposal for the Beyond
Compliance program. The Agency seeks comments and data that will
support the development and implementation of this program.
Credit Through a Beyond Compliance BASIC
FMCSA proposes to create a new BASIC in SMS. The Beyond Compliance
[[Page 23353]]
BASIC would appear when a motor carrier is approved and participating
in the Beyond Compliance program. The Agency proposes this means of
acknowledging those programs that exceed regulatory requirements
voluntarily for two reasons. First, many commenters to the April 2015
Federal Register notice advised that public recognition of
participation in this program would provide value. Those companies with
this BASIC would distinguish themselves from other companies when the
public display of SMS is reinstated in the future. Second, developing
and maintaining a separate BASIC in SMS can be completed within the 18
month timeframe prescribed by the FAST Act, whereas making
modifications to the SMS methodology would be more complicated and time
consuming, and potentially impact the study of the SMS methodology
required by Section 5221 of the FAST Act. In addition, a separate BASIC
is easier and more cost effective for the Agency to implement and
maintain. This alternative allows FMCSA to only modify the SMS and does
not need to tie to data in other systems such as the Motor Carrier
Management Information System.
FMCSA is specifically seeking comments on this proposal, and the
pros and cons of the Beyond Compliance BASIC.
Programs Meeting the Requirements of the Beyond Compliance Program
The FAST Act prescribes the eligibility for the Beyond Compliance
program. As a result, this program is available to a motor carrier
that: (1) Installs advanced safety equipment; (2) uses enhanced driver
fitness measures; (3) adopts fleet safety management tools,
technologies, and programs; or (4) satisfies other standards determined
appropriate by the Administrator.
FMCSA proposes that technologies that are not currently mandatory,
such as Electronic Logging Devices, would be eligible until they are
required.
Eligibility
A motor carrier would be eligible to apply for the Beyond
Compliance program if the following criteria were met:
1. The motor carrier did not have a Conditional or Unsatisfactory
safety rating;
2. The motor carrier did not have any BASICs over intervention
thresholds at the time of the application;
3. The proposed technology or program must be applied to the
company's population of vehicles or drivers to adequately achieve the
performance goal and improve safety;
4. The motor carrier must be an interstate carrier; and
5. The motor carrier must have graduated from the new entrant
monitoring period.
Commenters supported establishing this program for companies that
are already demonstrating compliance with the Agency's regulations.
Specifically, John Boyle, of Boyle Brothers, Inc., noted that FMCSA
``should focus on and reward real world results rather than who can
attract technology partners or self-promote the best.'' The Commercial
Vehicle Safety Alliance (CVSA) added, ``The purpose of such a program
is to recognize motor carriers who go above and beyond the minimum
requirements. Releasing participating motor carriers from the minimum
requirements is inappropriate and in direct conflict with the purpose
of the program. CVSA strongly opposes any effort to do so.'' Advocates
for Highway and Auto Safety noted that ``Any program to support
voluntary initiatives must, therefore, be predicated on adequate
performance standards and documented safety improvement data that
ensures the initiatives are actually contributing to highway safety.''
The Owners Operators and Independent Drivers Association opined that
``. . . this proposal is largely being driven by technology firms whose
primary interest is financial, and by large carriers who have already
adopted technology but have not realized real improvement to their
safety scores.''
Petition Submission Process
FMCSA proposes that petitions for technologies and safety programs
for consideration in a Beyond Compliance would be submitted using an
on-line tool to be developed by FMCSA. The on-line petition process
would require the motor carrier to provide at least the following
information:
1. USDOT number;
2. Company name and doing business as (DBA) names
3. Company official name, title, contact info;
4. Proposed technology or program;
5. Coverage (drivers and/or fleet);
6. Baseline safety information;
7. Expected improvement;
8. Estimated cost;
9. Installation timeframe (past or future); and
10. Self-certification.
Baseline safety information would include a statement of the safety
gains sought, defined with data. This must be a measurable performance
data that can be monitored to determine if improvement has been made.
FMCSA specifically requests comments on other data that should be
required with the application.
It is also anticipated that this online system would allow
requestors to submit documentation in support of the request.
Documentation to be submitted with a request would include, but is not
limited to:
1. Vendor documentation;
2. Training materials;
3. Company policies;
4. Company monitoring plans; and
5. Other proof of implementation.
FMCSA specifically requests information on what documentation
should be submitted with an application.
Petition Review Process
As noted above, the FAST Act allows FMCSA to award a no-cost
contract to a third party to provide monitoring support for this
program. It is expected that this third party would be used to
interview applicants and complete validation of the application. The
third-party would make recommendations to FMCSA on whether or not
applications should be approved.
FMCSA would complete review of submitted petitions within 60 days.
Applicants would receive a written decision by email. If the
application is approved, the motor carrier would see the Beyond
Compliance BASIC on its SMS profile. At this point in the process, SMS
would show that the motor carrier is ``Deployed.''
If FMCSA does not agree that the application met the requirements
of the program, a justification for this decision would be provided so
that the motor carrier may adjust the application and resubmit.
Mandatory Use Period and Monitoring
Within approximately 6 months after the application is approved,
the approved program or technology would be evaluated to identify the
impacts on the baseline performance measures. This monitoring would be
conducted by the third-party contractor. The use of the technology or
safety program would be confirmed and if the safety baseline has
improved, the Beyond Compliance BASIC would indicate that the motor
carrier is ``Improved.''
Recurring Monitoring
Recurring monitoring would be conducted by the third party
contractor. FMCSA proposes that use of the approved technology or
safety program would be validated at least annually. The validation
could occur through an on-site review, submission of documentation,
self-certification, or
[[Page 23354]]
another method of evaluation. FMCSA specifically requests comments on
other means of validating the sustained use of the approved technology
or safety programs.
Removal From the Program
A motor carrier would be immediately removed from the program if it
received a final conditional or unsatisfactory safety rating; was
declared an imminent hazard; or received an out of service or
revocation order from FMCSA. Additionally, a motor carrier would be
removed from the program immediately if it was determined that the
approved technology or safety program was not being used or was being
used by fewer drivers/vehicles than approved.
A motor carrier would be provided a warning if an alert(s) exceeded
the intervention threshold or did not maintain performance above the
performance baseline specified in its application. If the SMS measure
or the performance did not improve within 6 months, the motor carrier
would be removed from the program.
SMS Display
FMCSA will design the change to SMS to show a Beyond Compliance
BASIC. Information on the Beyond Compliance BASIC detail page would
explains that this BASIC exists for carriers that have applied to this
program and been approved. The detail page would also include a brief
explanation of the technology or program and would show if the program
is ``Deployed'' or ``Improved.''
Cost
As noted above, FMCSA has the authority to contract for a no-cost
contract to provide monitoring services for this program. This means
that the costs of the work performed by this third party would be paid
by the motor carrier. For the monitoring that would be conducted as
part of the application process, FMCSA estimates that this would take,
on average, five hours per carrier. However, it is acknowledged that
some programs or technologies will requires significantly more
resources to monitor. At a wage that is commensurate with a GS-13
Management Analyst in the Washington, DC, area, this would equate to
$44.15 per hour or $220.
It is expected that the six month validation would be two hours, or
$88, and the annual review would take two additional hours, or an
additional $88 per year. Assuming a carrier is in the program for five
years, FMCSA estimates that the fee would be approximately $750 per
motor carrier. This would be the expected cost for a program
implemented on a small number of vehicles and/or drivers. It is
expected that the costs would be tiered so that larger programs
requiring more monitoring would incur a higher cost. FMCSA specifically
seeks data and cost information to determine the appropriate range of
fees to be paid by the motor carrier under the no-cost contract.
Issued on: April 13, 2016.
T.F. Scott Darling, III,
Acting Administrator.
[FR Doc. 2016-09118 Filed 4-19-16; 8:45 am]
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