Carrier Safety Fitness Determination |
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Daphne Y. Jefferson
Federal Motor Carrier Safety Administration
23 March 2017
[Federal Register Volume 82, Number 55 (Thursday, March 23, 2017)]
[Proposed Rules]
[Pages 14848-14850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-05777]
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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 withdrawal.
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SUMMARY: FMCSA withdraws its January 21, 2016, notice of proposed
rulemaking (NPRM), which proposed a revised methodology for issuance of
a safety fitness determination (SFD) for motor carriers. The new
methodology would have determined 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; an investigation;
or a combination of on-road safety data and investigation information.
FMCSA had recently announced that, rather than move to a final rule, a
Supplemental Notice of Proposed Rulemaking (SNPRM) would be the next
step in the rulemaking process. However, after reviewing the record in
this matter, FMCSA withdraws the NPRM and cancels the plans to develop
a Supplemental Notice of Proposed Rulemaking. The Agency must receive
the Correlation Study from the National Academies of Science, as
required by the Fixing America's Surface Transportation (FAST) Act,
assess whether and, if so, what corrective actions are advisable, and
complete additional analysis before determining whether further
rulemaking action is necessary to revise the safety fitness
determination process.
DATES: The NPRM ``Carrier Safety Fitness Determination,'' RIN 2126-
AB11, published on January 21, 2016 (81 FR 3562), is withdrawn as of
March 23, 2017.
FOR FURTHER INFORMATION CONTACT: Ms. Barbara Baker, (202) 366-3397,
barbara.baker@dot.gov. FMCSA office hours are from 7:30 a.m. to 4 p.m.,
Monday through Friday, except Federal holidays.
SUPPLEMENTARY INFORMATION: On January 21, 2016, FMCSA published an NPRM
proposing revisions to the current methodology for issuance of a SFD
for motor carriers as required by 49 U.S.C. 31144 (81 FR 3562).
The essential elements of the proposed rule included determining
safety fitness from not only a comprehensive compliance investigation,
but also considering roadside inspections data. Adding roadside
inspections to the proposal included a minimum number of inspections
and violations to be used for the SFD, as well as providing failure
standards, and elimination of the current three-tier rating system
(i.e., satisfactory--conditional--unsatisfactory). Also, the NPRM
proposed revising the SFD appeals process and establishing
implementation and transition provisions for a final rule.
The Agency received 153 initial comment period submissions and 17
reply comment period submissions in response to the NPRM. After
considering the comments, FMCSA announced that, rather than move to a
final rule, a SNPRM would be the next step in the rulemaking
process.\1\
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\1\ See ``FMCSA Sets Schedule for Safety Fitness Determination--
Supplemental Notice of Proposed Rulemaking,'' January 12, 2017, at
https://www.fmcsa.dot.gov/newsroom/fmcsa-sets-schedule-safety-fitness-determination-supplemental-notice-proposed-rulemaking.
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NPRM Comments Generally
Elimination of Three Tier Rating System and Scope of FMCSA Rating
Obligation
In the NPRM, FMCSA proposed to eliminate the current three ratings
of satisfactory, conditional and unsatisfactory. Instead, the Agency
proposed only one rating of ``unfit.'' Commenters including John
Brannum, C.H. Robinson, Greyhound Lines, Advocates for Highway and Auto
Safety (Advocates), Road Safe America, Truck Safety Coalition and the
American Association for Justice supported the termination of the
three-tier rating system. These commenters supported the fact that this
change would not allow conditional carriers to operate without
improving their operations and would make it much clearer for the
shipping community to determine which carriers may or may not operate.
Specifically, C. H. Robinson noted it has long recommended a two-tiered
structure that more clearly signals to shippers, and other industry
stakeholders, which carriers should not be hired due to safety
concerns. It said all stakeholders seek clear direction from FMCSA, and
FMCSA desires stakeholders to properly use data collected by FMCSA.
David Gee, an owner of a motor carrier and a broker, commented that the
Agency should use the rulemaking to affirm that the shipper and broker
community can rely upon the agency's ultimate safety fitness
determination in making carrier selections free from state law
negligence suits. Greyhound stated it agrees that the change will do
away with the misperception that a ``satisfactory'' rating is a sign of
operational approval.
However, commenters including the National Motor Freight Traffic
Association (NMFTA), Minnesota Trucking Association, School Bus, Inc.,
National School Transportation Association, and the American Trucking
Associations, Inc. (ATA), opposed the proposed change. ATA wrote that
the proposal to remove the term ``safety rating'' may have negative,
perhaps unanticipated, consequences. Specifically, ATA explained that
there will be no means to distinguish fleets whose safety management
controls have been verified during compliance reviews (i.e. those
labeled
[[Page 14849]]
``Satisfactory'') from fleets that have not been reviewed. Second,
there will be no means to separate fleets with documented deficiencies
(i.e. those labeled ``Conditional'') from all other fleets not labeled
``Unfit.'' In addition to the inequity this creates for fleets that
have earned a ``Satisfactory'' rating, ATA believes it does a
disservice to third parties and the general public who should be
alerted to the fleets with documented problems. ATA also proposed that
FMCSA should allow fleets that have been investigated to maintain their
satisfactory ratings; this idea was echoed by NMFTA and the Intermodal
Association of North America.
Further, ATA suggested that FMCSA consider three labels: Assessed--
Unfit, Assessed--Not Unfit, and Not Assessed. ATA noted that a tiered
naming convention such as this could help eliminate confusion and leave
third parties better informed.
Some commenters also asserted that FMCSA, contrary to the position
expressed in the NPRM, had a statutory duty to determine the fitness of
all motor carriers, not just those that are unfit. These commenters
claimed that the provisions of 49 U.S.C. 31144 require such actions.
Failure Standards
Advocates expressed concern that, as proposed, one of the
assessment methods would only reach the worst 1 percent or 4 percent of
carriers, depending on the various categories. Advocates believe that
the failure standards were ``artificially selected'' based on the
Agency's resources ``instead of making safety the highest priority.''
Advocates recommended that the SFD process should identify each and
every motor carrier that is unsafe and needs to be determined
``Unfit.'' Contrarily, to support the Agency's proposal, the
International Brotherhood of Teamsters offered that the Agency should
only be expected to determine the safety fitness of as many carriers as
possible, given existing resources.
Advocates further commented that if the agency plans to use the
absolute performance measure based on a snapshot of data to establish
the thresholds, there must be a plan to continually update this data to
encourage improvements in safety on par with increases in on-road
safety, both within the industry and on-road in general.
Knight Transportation agreed with the Agency's proposal that
carrier fitness should not be based on relative peer performance. NMFTA
added that the assignment of absolute failure standards for the
individual categories would provide a carrier with a better method to
track and assess its safety compliance based on the roadside
inspections, and sooner identify an area which might require additional
attention. The International Brotherhood of Teamsters noted that, under
the proposed methodology, carriers will benefit from being judged
solely on their own performance rather than other companies' safety
performance. Intermodal Association of North America also believes that
moving to an absolute measurement approach is an improved method over
the existing, relative measurements of the Compliance, Safety, and
Accountability program.
The American Bus Association questioned how FMCSA can issue a
regulatory proposal to change the long standing safety fitness
determination process for motor carriers, without providing the failure
standards in the NPRM.
C.H. Robinson commended the decision to move away from a percentile
ranking and establish firm, fixed safety data targets as represented by
the ``absolute measure'' thresholds that began to be published in
August 2014. C.H. Robinson found, however, that FMCSA has not educated
stakeholders well about how absolute measures are formulated and
specifically why absolute measures vary greatly across peer groups.
C.H. Robinson suggests FMCSA fully explain absolute measures to
shippers, brokers and other stakeholders, to reduce the risk that small
business carriers will be adversely impacted. C.H. Robinson believes
the potential adverse impact to small carriers regarding this confusion
is significant.
In addition, the Alliance for Safe, Efficient and Competitive Truck
Transportation (ASCETT) noted that, with declining inspection rates,
continued evidence of enforcement anomalies, electronic logging devices
(ELDs) and speed limiters, a new NPRM and opportunity for notice and
comment is needed. ASCETT further commented that the Agency will have
to recalibrate the failure measures through rulemaking to justify new
enforcement thresholds. However, ASCETT questioned if the
recalibrations would be worth the expense.
Criticism of Data Analysis Period (2011)
Some commenters noted that applying the methodologies to more
current data would change the population of carriers that would be
identified as proposed unfit. Commenters noted that the number of
inspections has decreased since 2011. Additionally, some commenters
pointed out that by the end of 2017, ELDs will be mandatory. This
change will alter the violations in the Hours of Service category.
Also, these commenters stated that if speed limiters become mandated
for heavy vehicles this would result in changes to violations.
Comments on Costs
Some commenters alleged that some costs associated with declaring
additional carriers ``unfit'' were not considered in the economic
analysis. According to these commenters, other costs to consider in
addition to those currently in the economic analysis include: Impacts
to non-driver staff; costs for improving performance to come into
compliance (e.g., attorney, consultant, and employee training costs);
costs for administrative appeals; damage to business reputation and
creditworthiness; lost sales; opportunity costs of time away from the
business; lost revenue to suppliers (such as fuel suppliers); lost
capital utilization if vehicles are taken off the market unnecessarily;
defaults on loans; repossession of equipment; and personal bankruptcy
of owners.
Impacts on Small Businesses
Three commenters suggested that FMCSA should consider changes to
the proposed rule for small entities, including retaining the
``corrective action plan'' provision in the current regulation. In
addition, some commenters recommended that FMCSA allow for reduced
reporting requirements and timetables for small carriers.
Letter to the Secretary of Transportation Urging Withdrawal
On February 15, 2017, a letter from 62 national and regional
organizations of motor carriers urged Secretary of Transportation
Elaine L. Chao to withdraw the NPRM; a copy of the letter has been
added to the docket.
The organizations argued that the proposed rule utilizes SMS data
and methodologies, which Congress directed the National Academies of
Science to review in the Fixing America's Surface Transportation Act,
Public Law 114-94 (FAST Act) (Dec. 4, 2015). The National Academies of
Science final report is expected in June 2017. The organizations
representing motor property and passenger carriers believe it is ill-
advised to develop a new SFD system until the report is received and
any necessary reforms are made through corrective actions to the
foundational data and methodologies that support
[[Page 14850]]
safety fitness determinations. While the petitioners support the goal
of an easily understandable, rational SFD system, they believe the NPRM
should be withdrawn at this time.
FMCSA Decision To Withdraw the NPRM
Based on the current record, including comments received in
response to the NPRM and the February 2017 correspondence to Secretary
Chao, FMCSA has decided to withdraw the January 2016 NPRM and,
accordingly, cancels the plans to develop a SNPRM as announced by the
Agency on January 12, 2017. If FMCSA determines changes to the safety
fitness determination process are still necessary and advisable in the
future, a new rulemaking would be initiated that will incorporate any
appropriate recommendations from the National Academies of Science and
the comments received through this rulemaking. The NPRM concerning
motor carrier safety fitness determinations is withdrawn.
Issued under the authority delegated in 49 CFR 1.87 on: March
17, 2017.
Daphne Y. Jefferson,
Deputy Administrator.
[FR Doc. 2017-05777 Filed 3-22-17; 8:45 am]
BILLING CODE 4910-EX-P