[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AB11, published on January 21, 2016 (81 FR 3562), is withdrawn as of 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, 
[email protected]. 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