[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, 
[email protected].

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]
 BILLING CODE 4910-EX-P