[Federal Register Volume 88, Number 166 (Tuesday, August 29, 2023)]
[Proposed Rules]
[Pages 59489-59494]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18494]


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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-2022-0003]
RIN 2126-AC52


Safety Fitness Determinations

AGENCY: Federal Motor Carrier Safety Administration (FMCSA), Department 
of Transportation (DOT).

ACTION: Advance notice of proposed rulemaking and request for comments.

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SUMMARY: FMCSA is interested in developing a new methodology to 
determine when a motor carrier is not fit to operate commercial motor 
vehicles (CMVs) in or affecting interstate commerce. FMCSA requests 
public comment on the need for a rulemaking to revise the regulations 
prescribing the safety fitness determination process; the available 
science or technical information to analyze regulatory alternatives for 
determining the safety fitness of motor carriers; feedback on the 
Agency's current safety fitness determination (SFD) regulations, 
including the process and impacts; the available data and costs for 
regulatory alternatives reasonably likely to be considered as part of 
this rulemaking; and responses to specific questions in this advance 
notice of proposed rulemaking (ANPRM).

DATES: Comments on this notice must be received on or before October 
30, 2023.

ADDRESSES: You may submit comments identified by Docket Number FMCSA-
2022-0003 using any of the following methods:
     Federal eRulemaking Portal: Go to https://www.regulations.gov/docket/FMCSA-2022-0003/document. Follow the online 
instructions for submitting comments.
     Mail: Dockets Operations, U.S. Department of 
Transportation, 1200 New Jersey Avenue SE, West Building, Ground Floor, 
Room W12-140, Washington, DC 20590-0001.
     Hand Delivery or Courier: Dockets Operations, U.S. 
Department of Transportation, 1200 New Jersey Avenue SE, West Building, 
Ground Floor, Room W12-140, Washington, DC 20590-0001, between 9 a.m. 
and 5 p.m., Monday through Friday, except Federal holidays. To be sure 
someone is there to help you, please call (202) 366-9317 or (202) 366-
9826 before visiting Dockets Operations.
     Fax: (202) 493-2251.
    To avoid duplication, please use only one of these four methods. 
See the ``Public Participation and Request for Comments'' portion of 
the SUPPLEMENTARY INFORMATION section for instructions on submitting 
comments.

FOR FURTHER INFORMATION CONTACT: Ms. Stacy Ropp, (609) 661-2062, 
[email protected]. FMCSA office hours are from 7:30 
a.m. to 4 p.m., Monday through Friday, except Federal holidays. If you 
have questions on viewing or submitting material to the docket, call 
Dockets Operations at (202) 366-9826.

SUPPLEMENTARY INFORMATION:

I. Public Participation and Request for Comments

A. Submitting Comments

    If you submit a comment, please include the docket number for this 
ANPRM (FMCSA-2022-0003), indicate the specific section of this document 
to which your 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 FMCSA 
can contact you if there are questions regarding your submission.
    To submit your comment online, go to https://www.regulations.gov/docket/FMCSA-2022-0003/document, click on this ANPRM, click 
``Comment,'' and type your comment into the text box on the following 
screen.
    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.
    FMCSA will consider all comments and material received during the 
comment period.
Confidential Business Information (CBI)
    CBI is commercial or financial information that is both customarily 
and actually treated as private by its owner. Under the Freedom of 
Information Act (5 U.S.C. 552), CBI is exempt from public disclosure. 
If your comments responsive to the ANPRM contain commercial or 
financial information that is customarily treated as private, that you 
actually treat as private, and that is relevant or responsive to the 
ANPRM, it is important that you clearly designate the submitted 
comments as CBI. Please mark each page of your submission that 
constitutes CBI as ``PROPIN'' to indicate it contains proprietary 
information. FMCSA will treat such marked submissions as confidential 
under the Freedom of Information Act, and they will not be placed in 
the public docket of the ANPRM. Submissions containing CBI should be 
sent to Mr. Brian Dahlin, Chief, Regulatory Evaluation Division, Office 
of Policy, FMCSA, 1200 New Jersey Avenue SE, Washington, DC 20590-0001. 
Any comments FMCSA receives not specifically designated as CBI will be 
placed in the public docket for this rulemaking.

B. Viewing Comments and Documents

    To view any documents mentioned as being available in the docket, 
go to https://www.regulations.gov/docket/FMCSA-2022-0003/document and 
choose the document to review. To view comments, click this ANPRM, then 
click ``Browse Comments.'' If you do not have access to the internet, 
you may view the docket online by visiting Dockets Operations in Room 
W12-140 on the ground floor of the DOT West Building, 1200 New Jersey 
Avenue SE, Washington, DC 20590-0001, between 9 a.m. and 5 p.m., Monday 
through Friday, except Federal holidays. To be sure someone is there to 
help you, please call (202) 366-9317 or (202) 366-9826 before visiting 
Dockets Operations.

C. Privacy

    DOT solicits comments from the public to better inform its 
regulatory process, in accordance with 5 U.S.C. 553(c). 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--Federal Docket Management System 
(FDMS)), which can be reviewed at www.transportation.gov/privacy.

II. Legal Basis for the Rulemaking

    This rulemaking is based primarily on 49 U.S.C. 31144(a) and (b) 
\1\ which

[[Page 59490]]

direct the Secretary of Transportation (Secretary) to determine whether 
an owner or operator is fit to operate safely CMVs and to maintain by 
regulation a procedure for determining the safety fitness of an owner 
or operator. FMCSA's authority to determine the safety fitness of 
owners or operators of CMVs was broadened with major amendments in 1998 
\2\ and 2005,\3\ and another amendment in 2012.\4\
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    \1\ Enacted by Motor Carrier Safety Act of 1984 (1984 Act), sec. 
215, Public Law 98-554, Title II, 98 Stat. 2829, 2844-2845 (Oct. 30, 
1984), now codified at 49 U.S.C. 31144.
    \2\ Sec. 4009(a) of the Transportation Equity Act for the 21st 
Century (TEA-21), Public Law 105-178, 112 Stat. 107, 405 (June 12, 
1998).
    \3\ Sec. 4114(a) of the Safe, Accountable, Flexible, Efficient 
Transportation Equity Act: A Legacy for Users (SAFETEA-LU), Public 
Law 109-59, 119 Stat. 1144, 1725 (Aug. 10, 2005).
    \4\ Sec. 32707(a), Div. C., Title II of the Moving Ahead for 
Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 
Stat. 813 (July 6, 2012).
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    As amended, section 31144(a) now requires the Secretary to: (1) 
determine whether an owner or operator is fit to operate CMVs safely, 
utilizing among other things the crash record of an owner or operator 
operating in interstate commerce and the crash record and safety 
inspection record of such owner or operator--(A) in operations that 
affect interstate commerce within the United States; and (B) in 
operations in Canada and Mexico if the owner or operator also conducts 
operations within the United States; (2) periodically update such SFDs; 
(3) make such final SFDs readily available to the public; and (4) 
prescribe by regulation penalties for violations of 49 U.S.C. 31144 
consistent with 49 U.S.C. 521.\5\
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    \5\ 49 U.S.C. 31144(a).
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    Section 31144(b) provides that the Secretary shall maintain by 
regulation a procedure for determining the safety fitness of an owner 
or operator. The procedure shall include, at a minimum, the following 
elements: (1) specific initial and continuing requirements with which 
an owner or operator must comply to demonstrate safety fitness; (2) a 
methodology the Secretary will use to determine whether an owner or 
operator is fit; and (3) specific time frames within which the 
Secretary will determine whether an owner or operator is fit.\6\
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    \6\ 49 U.S.C. 31144(b).
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    This rulemaking also relies on 49 U.S.C. 31133, which gives the 
Secretary broad administrative powers to assist in the implementation 
of the provisions of subchapter III of chapter 311 of 49 U.S.C. These 
powers include, among others, authority to conduct inspections and 
investigations, compile statistics, require production of records and 
property, prescribe recordkeeping and reporting requirements, and 
perform other acts considered appropriate.\7\ The Agency also has broad 
authority to conduct investigations and inspect equipment, lands, 
buildings, and other property.\8\ These powers are exercised to obtain 
the data used to issue SFDs.
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    \7\ See Sen. Report No. 98-424 at 9 (May 2, 1984).
    \8\ 49 U.S.C. 502, 504(c), 506, 5121 (as to persons subject to 
49 U.S.C. Chapter 51), 14122 (as to brokers and motor carriers 
providing motor vehicle transportation for compensation).
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    FMCSA has authority to revoke the operating authority registration 
of any motor carrier that has been prohibited from operating as the 
result of a final unfit SFD.\9\ FMCSA has the authority to take similar 
action to revoke or suspend a motor carrier's safety registration on 
the same grounds.\10\ FMCSA also has statutory authority to adopt a 
requirement that States receiving Motor Carrier Safety Assistance 
Program (MCSAP) grants enforce orders issued by FMCSA related to CMV 
safety and hazardous materials (HM) transportation safety. States 
receiving MCSAP funds therefore must enforce FMCSA orders to cease 
operation for lack of operating authority registration as the result of 
a final unfit SFD.\11\
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    \9\ 49 U.S.C. 13905(f)(1)(B).
    \10\ 49 U.S.C. 31134(c).
    \11\ 49 U.S.C. 31102(a) and (b).
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    The Secretary has delegated the authority to carry out all these 
functions to the FMCSA Administrator.\12\
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    \12\ 49 CFR 1.87(a)(5), (f), and (j).
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III. Executive Order (E.O.) 12866 (Regulatory Planning and Review), 
E.O. 13563 (Improving Regulation and Regulatory Review), AND E.O. 14094 
(Modernizing Regulatory Review)

    This ANPRM is a significant regulatory action under section 3(f) of 
E.O. 12866, as supplemented by E.O. 13563 and amended by E.O. 14094. 
Accordingly, the Office of Information and Regulatory Affairs within 
the Office of Management and Budget has reviewed it under these E.O.s.
    E.O.s 12866, 13563, and 14094 require agencies to provide a 
meaningful opportunity for public participation. Accordingly, FMCSA has 
asked commenters to answer a variety of questions to elicit practical 
information about alternative approaches for safety fitness 
determinations, including the associated costs and benefits of those 
approaches, and relevant scientific, technical, and economic data.

IV. Background

History of SFDs

    The Federal Highway Administration (FHWA), the predecessor of 
FMCSA, first promulgated Safety Fitness Procedures in 1988 \13\ to 
determine the safety fitness of motor carriers through an investigation 
generally conducted at the motor carrier's premises and to establish 
procedures to resolve safety fitness disputes with motor carriers, as 
required by the 1984 Act.\14\ In 1991, FHWA issued an interim final 
rule,\15\ based on provisions in the Motor Carrier Safety Act of 1990 
(1990 Act).\16\ This interim final rule prohibited certain motor 
carriers rated Unsatisfactory (i.e., Unfit) from operating CMVs in 
interstate commerce by transporting more than 15 passengers or 
placardable quantities of HM starting on the 46th day after being found 
unfit. This regulation went into effect on the date of publication in 
August 1991. FHWA stated that it would use a safety-rating formula to 
determine safety ratings, but the formula, while publicly available, 
was not included in the safety fitness regulation.
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    \13\ 53 FR 50961 (Dec. 19, 1988).
    \14\ Sec. 215, Public Law 98-554, 98 Stat. 2829, 2844-2845, now 
codified, as amended, at 49 U.S.C. 31144.
    \15\ 56 FR 40802 (Aug. 16, 1991).
    \16\ Sec. 15(b), Public Law 101-500, 104 Stat. 1213, 1218 (Nov. 
3, 1990).
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    In March 1997, in MST Express v. Department of Transportation,\17\ 
the U.S. Court of Appeals for the District of Columbia Circuit ruled in 
favor of a motor carrier that had appealed its conditional safety 
fitness rating. The court found that FHWA did not carry out its 
statutory obligation to establish, by regulation, a means of 
determining whether a carrier has complied with the safety fitness 
requirements of the 1984 Act. Because the carrier's conditional safety 
rating was based, in part, upon the formula that was publicly 
available, but was not included in the promulgated 1988 final rule or 
1991 interim final rule, the court vacated the petitioner's conditional 
safety rating and remanded the matter to FHWA for further action.
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    \17\ 108 F.3d 401 (D.C. Cir. 1997).
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    In response, FHWA issued a second interim final rule in May 1997 
\18\ incorporating the safety fitness rating methodology into the 
safety fitness regulations, and a companion notice of proposed 
rulemaking (NPRM) published the same day \19\ proposed to adopt the 
formula or methodology for use in assigning safety fitness ratings to 
all classes of motor carriers. This companion NPRM discussed the public 
comments received in response to the 1991 interim final rule.
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    \18\ 62 FR 28807 (May 28, 1997).
    \19\ 62 FR 28826 (May 28, 1997).

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[[Page 59491]]

    In November 1997, FHWA published a final rule \20\ incorporating 
the Agency's revised safety fitness rating methodology in appendix B to 
49 CFR part 385, Safety Fitness Procedures. In November 1998, FHWA 
published amendments to the rule that corrected several minor 
errors.\21\ These changes withstood judicial review in 1999 in American 
Trucking Associations, Inc. v. U.S. DOT.\22\ The court in the American 
Trucking Associations case gave deference to FHWA's interpretation of 
its statutory directive as it related to the level of specificity 
required in regulation and related interpretive guidance. Regarding 
FHWA's reason for using interpretive guidance rather than notice and 
comment rulemaking to implement aspects of the methodology, the court 
noted: ``It is easy to imagine an affirmative reason for the agency's 
decision not to subject the sampling procedure to notice and comment 
rulemaking--the desire to be able to vary these technical elements of 
the process without excessive delay as experience accrues.''
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    \20\ 62 FR 60035 (Nov. 6, 1997).
    \21\ 63 FR 62957 (Nov. 10, 1998).
    \22\ 166 F.3d 374 (D.C. Cir. 1999).
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    In 1998, TEA-21 added a prohibition \23\ applicable to all owners 
and operators of CMVs not previously subject to the 1990 Act's 
prohibition--that is, those CMV owners and operators not transporting 
more than 15 passengers or HM in quantities requiring placarding. 
Following that change, starting on the 61st day after being found 
unfit, all owners and operators, including those not transporting more 
than 15 passengers or HM in quantities requiring placarding, were 
prohibited from operating CMVs in interstate commerce. It also 
prohibited Federal agencies from using any unfit owner or operator to 
provide any transportation service. FHWA proposed the regulations 
implementing the TEA-21 amendments in 1999, and FMCSA, which was 
established in 2000, published the final rule on August 22, 2000.\24\
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    \23\ Sec. 4009(a), Public Law 105-178, 112 Stat. 107, 405, 
codified in amended 49 U.S.C. 31144.
    \24\ 65 FR 50919 (Aug. 22, 2000).
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    FMCSA published several additional amendments earlier in 2000.\25\ 
These changes updated the list of acute and critical regulations to 
conform with changes in FMCSA and the Pipeline and Hazardous Materials 
Safety Administration regulations. In 2007,\26\ the Agency further 
revised the safety fitness procedures regulations and appendix B to 
implement SAFETEA-LU statutory amendments.\27\
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    \25\ 65 FR 11904 (Mar. 7, 2000).
    \26\ 72 FR 36760 (July 5, 2007).
    \27\ Sec. 4114(a), Public Law 109-59, 119 Stat. 1144, 1725, 
codified in amended 49 U.S.C. 31144.
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    In 2007, in response to a motorcoach fire with numerous fatalities, 
the National Transportation Safety Board (NTSB) recommended that FMCSA 
use all motor carrier violations when assessing a carrier's safety 
fitness. (See NTSB recommendation H-07-003 in ``Highway Accident 
Report: Motorcoach Fire on Interstate 45 During Hurricane Rita 
Evacuation Near Wilmer, Texas, September 23, 2005.''). A copy of the 
NTSB report and a related Motor Carrier Safety Advisory Committee 
(MCSAC) report have been placed in the docket. The MCSAC recommended 
unanimously to FMCSA that it implement the NTSB proposal to use all 
motor carrier violations when assessing a carrier's safety fitness. 
NTSB closed the recommendation on September 15, 2015, after NTSB 
accepted FMCSA's alternative action of including severity weights for 
violations of the regulations and including them in its Safety 
Measurement System (SMS). A copy of NTSB's letter closing the 
recommendation is also in the docket.

Current SFD Process

    SFDs are currently determined based on an analysis of existing 
motor carrier data and data collected during an investigation (referred 
to as a ``compliance review'' (CR) in Sec.  385.3). The CR may be 
conducted on-site at the motor carrier's place of business and/or 
remotely through a review of its records using a secure portal. The 
existing SFD process analyzes six factors to assign a carrier's safety 
fitness rating. Federal Motor Carrier Safety Regulations (FMCSRs) and 
Hazardous Materials Regulations (HMRs) with similar characteristics are 
grouped together in the six factors as follows:

 Factor 1 General--Parts 387 and 390
 Factor 2 Driver--Parts 382, 383, and 391
 Factor 3 Operational--Parts 392 and 395
 Factor 4 Vehicle--Parts 393 and 396
 Factor 5 HM--Parts 171, 177, 180, and 397
 Factor 6 Accident factor--Recordable accident rate per million 
miles

    FMCSA calculates a vehicle out-of-service rate, reviews crash 
involvement, and conducts an in-depth examination of the motor 
carrier's compliance with the acute and critical regulations of the 
FMCSRs and HMRs, currently listed in 49 CFR part 385, appendix B, part 
VII.
    ``Acute regulations'' are those where noncompliance is so severe as 
to require immediate corrective action, regardless of the overall 
safety management controls of the motor carrier.
    ``Critical regulations'' are related to management or operational 
systems controls. Overall noncompliance is calculated and rated on a 
point system within the six factors. During the investigation, for each 
instance of noncompliance with an acute regulation or each pattern of 
noncompliance with a critical regulation one point is assessed. Each 
pattern of noncompliance with a critical regulation in part 395, Hours 
of Service of Drivers, is assessed two points. For a critical 
regulation, the number of violations required to meet the threshold for 
a pattern is equal to at least 10 percent of those sampled, and more 
than one violation must be found to establish a pattern. In addition, 
on-road safety data is used in calculating the vehicle and crash 
factors.\28\
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    \28\ This is referred to as the Accident Factor in 49 CFR part 
385 appendix B. Under Sec.  390.5, Accident and Crash have the same 
meaning.
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    If any factor is assessed one point, that factor is rated as 
``conditional.'' If any factor is assessed two points, that factor is 
rated as ``unsatisfactory.'' Two or more individual factors rated as 
``unsatisfactory'' will result in an overall rating of 
``Unsatisfactory.'' One individual factor rated as ``unsatisfactory'' 
and more than two individual factors rated as ``conditional'' will also 
result in an ``Unsatisfactory'' rating overall (see Table 1 below).

                    Table 1--Current SFD Rating Table
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                  Factor ratings
-------------------------------------------------- Overall safety rating
        Unsatisfactory             Conditional
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0.............................  2 or fewer.......  Satisfactory.
0.............................  More than 2......  Conditional.

[[Page 59492]]

 
1.............................  2 or fewer.......  Conditional.
1.............................  More than 2......  Unsatisfactory.
2 or more.....................  0 or more........  Unsatisfactory.
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    The Agency's current SFD process is resource-intensive and reaches 
only a small percentage of motor carriers. In fiscal year (FY) 
2019,\29\ FMCSA and its State partners conducted 11,671 CRs out of a 
population of more than 567,000 active interstate motor carriers.\30\ 
The Agency conducts CRs that are either comprehensive, reviewing all 
regulatory factors in full, or focused, reviewing fewer than all of the 
factors. A comprehensive CR may result in a satisfactory, conditional, 
or unsatisfactory safety rating. A focused CR may result in a 
conditional or unsatisfactory safety rating or may not result in a 
safety rating.
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    \29\ FY 2019 was the last year prior to the COVID-19 pandemic. 
In FY 2020 and FY 2021, the pandemic limited the number of CRs 
conducted due to restrictions on travel and safety concerns.
    \30\ This does not include intrastate HM motor carriers. https://ai.fmcsa.dot.gov/registrationstatistics/CustomReports, last 
accessed April 26, 2022.
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    Of the CRs conducted in FY 2019, 306 resulted in a final safety 
rating of Unsatisfactory, 1,842 resulted in a final safety rating of 
Conditional, and 2,701 resulted in a final safety rating of 
Satisfactory.\31\ Only a small percentage of carriers with safety 
management control deficiencies are required to submit corrective 
action to continue operating and avoid a final unfit determination 
based on an unsatisfactory rating.
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    \31\ https://ai.fmcsa.dot.gov/SafetyProgram/spRptReview.aspx?rpt=RVFR, last accessed April 26, 2022.
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    FMCSA's SMS currently is not used in any way to generate SFDs. SMS 
is FMCSA's prioritization system to identify motor carriers for 
investigation that demonstrate through safety data that they pose 
safety risk. SMS organizes inspection and crash data into seven 
categories of violations known as Behavior Analysis and Safety 
Improvement Categories (BASICs). SMS generates absolute measures of a 
carrier's safety performance and then creates percentile rankings 
within each BASIC that compare carriers' safety performance to 
similarly sized carriers. Carriers whose relative percentiles exceed 
established intervention thresholds are considered to be in ``alert'' 
status and may receive an FMCSA intervention, such as a warning letter 
or investigation.

2016 NPRM

    On January 21, 2016, FMCSA published an NPRM titled ``Carrier 
Safety Fitness Determination'' (81 FR 3562, available at https://www.regulations.gov/document/FMCSA-2015-0001-0076). That NPRM proposed 
SFDs based on the carrier's on-road safety data; an investigation; or a 
combination of on-road safety data and investigation information.
    The 2016 NPRM proposed SFD methodology would have used a carrier's 
absolute measure, but not its relative percentile ranking, in SMS to 
generate unfit SFDs. The intended effect of that proposal was to more 
effectively use FMCSA data and resources to identify unfit motor 
carriers and to remove them from the Nation's roads. The previous NPRM 
also proposed eliminating the current rating terms of Satisfactory, 
Unsatisfactory, and Conditional and transitioning to a single 
determination of Unfit.
    The Agency concluded that many reasons supported changing the SFD. 
First, the current SFD methodology evaluates a motor carrier's 
compliance using only a limited range of roadside and other inspection 
data. Additionally, the current process does not integrate all the data 
available in the Motor Carrier Management Information System (MCMIS). 
Approximately 3.5 million inspections are conducted each year, and this 
information is not effectively used to remove unsafe operators from our 
Nation's roadways.
    Second, the safety rating is a snapshot of a company's safety 
performance at the time of the investigation. Because the Agency has 
resources to issue safety ratings to only a small percentage of motor 
carriers each year, a safety rating does not necessarily reflect the 
current safety posture of a motor carrier.
    Third, the current SFD process is not designed to continually 
monitor motor carrier on-road safety data.
    Fourth, the assignment and perpetual existence of a Satisfactory 
safety rating (until the rating is replaced after a subsequent CR), may 
be misconstrued as an FMCSA approval of the current operations of a 
motor carrier, when instead, it reflects FMCSA's evaluation of a motor 
carrier's operations at the time of the investigation.
    Fifth, under the current SFD process, a motor carrier is not 
prohibited from operating with a Conditional rating even though a 
ratable review reveals breakdowns in safety management controls in 
multiple areas. For example, a motor carrier with documented 
noncompliance in areas such as vehicle maintenance (factor 4) and 
controlled substances and alcohol testing (factor 2) would receive only 
a proposed Conditional rating, which, if it became final, would still 
allow the motor carrier to continue operating.
    Sixth, under present and foreseeable staffing levels, the current 
regulations allow the Agency and its State partners to assess or rate 
the safety fitness of only a small population of motor carriers on an 
annual basis. The 2016 proposal would have expanded the number of 
assessed and rated carriers.
    Lastly, FMCSA has agreed to take action on an NTSB recommendation 
related to changing the safety fitness methodology, H-12-017: Include 
SMS rating scores in the methodology used to determine a carrier's 
fitness to operate in the safety fitness rating rulemaking for the new 
Compliance, Safety, Accountability initiative.
    The Agency received 153 initial comment period submissions and 17 
reply comment period submissions in response to the 2016 NPRM. While 
many commenters favored the proposal, including most safety advocacy 
and State law enforcement groups, others opposed it, including large 
and small motor carriers and some trade associations. More information 
about this rulemaking action can be found in the docket for the 2016 
NPRM.

FAST Act Impacts

    Section 5221 of the Fixing America's Surface Transportation (FAST) 
Act \32\ required the National Academy of Sciences (NAS) to conduct an 
independent study of SMS. In 2017 FMCSA withdrew the 2016 NPRM to

[[Page 59493]]

await the completion of the correlation study by NAS, and an analysis 
of any corrective actions.\33\
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    \32\ Public Law 114-94, div. A, title V, subtitle B, part II, 
129 Stat. 1538 (Dec. 4, 2015), 49 U.S.C. 31100 note.
    \33\ (82 FR 14848), March 23, 2017.
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    On June 27, 2017, NAS published the report titled, ``Improving 
Motor Carrier Safety Measurement.'' The report is available in the 
docket for this ANPRM and also available at https://www.nap.edu/catalog/24818/improving-motor-carrier-safety-measurement.
    The NAS report concluded that SMS, in its current form, is 
structured in a reasonable way and its method of identifying motor 
carriers for alert status is defensible. The NAS agreed that FMCSA's 
overall approach, based on crash prevention rather than prediction, is 
sound. The NAS provided six recommendations. The primary recommendation 
was for FMCSA to develop a complex statistical model known as item 
response theory (IRT) and ``[i]f it is then demonstrated to perform 
well in identifying motor carriers for alerts, FMCSA should use it to 
replace SMS in a manner akin to the way SMS replaced SafeStat.'' FMCSA 
accepted all the NAS recommendations and developed an implementation 
plan, as required by the FAST Act. A copy of the action plan is 
available in the docket of this ANPRM.
    In addition, section 5223 of the FAST Act (49 U.S.C. 31100 note) 
prohibits FMCSA from using information regarding the SMS percentiles 
and alerts for SFDs until the DOT's Office of the Inspector General 
makes five certifications required by the FAST Act. The OIG has not 
issued the five certifications, and this statutory limitation therefore 
currently prevents FMCSA from using SMS percentiles or alerts for SFDs, 
as was recommended by the NTSB.

Current Status of SMS

    This ANPRM does not make any specific proposals but asks for input 
on the potential use of the SMS methodology to issue SFDs in a manner 
similar to the 2016 FMCSA proposed rule.\34\ To inform that input, 
FMCSA provides an update on its work related to SMS here and in the 
Agency's Federal Register notice titled, ``New Carrier Safety 
Assessment System,'' which was published at 88 FR 9954 (February 15, 
2023). As recommended by NAS, FMCSA developed and tested an IRT model. 
To do so, FMCSA contracted with NAS for the establishment and operation 
of a standing committee of experts, as well as with subject matter 
experts from academia with experience in large-scale IRT modeling, to 
provide advice and guidance to the Agency during the development and 
testing of the IRT model. The IRT model was designed and tested using 
inspection data from FMCSA's MCMIS database. The full modeling report 
titled, ``Development and Evaluation of an Item Response Theory (IRT) 
Model for Motor Carrier Prioritization,'' which details the statistical 
methodologies applied in developing and testing the IRT model, is 
available in the docket of the February 15, 2023, notice regarding SMS.
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    \34\ SMS methodology is a generalized motor carrier assessment 
tool and differs from the use of SMS percentiles and alerts. The use 
of SMS methodology for SFDs, as previously proposed in 2016, is not 
prohibited by statute.
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    The Agency's IRT modeling work revealed many complications of using 
an IRT model. As a result, the Agency has concluded that IRT modeling 
does not perform well for FMCSA's use in identifying motor carriers for 
safety interventions and thus is not a useful tool for improving safety 
through FMCSA's safety fitness authority. First, the IRT model 
developed by FMCSA is heavily biased towards identifying smaller 
carriers that have few inspections with violations and limited on-road 
exposure to crash risk. When the safety event groups and data 
sufficiency standards used in SMS were applied to the IRT model, the 
IRT produced similar results to SMS.
    Second, the IRT does not use vehicle miles traveled or power units 
to adjust for on-road exposure in the Unsafe Driving BASIC. As a 
result, the IRT identified carriers with much lower crash rates in that 
BASIC compared to SMS.
    Third, IRT modeling is not understandable by most stakeholders or 
the public. IRT's inherent complexity makes it challenging for the 
industry and public to replicate and interpret results. While SMS 
results using FMCSA's existing processes can be reproduced and 
explained using mathematical calculations, IRT requires an advanced 
understanding of statistical modeling and analysis.
    Fourth, a motor carrier could not independently compute its IRT 
results. IRT results can be computed only for the entire carrier 
population. A carrier would not be able to identify how specific 
violations or areas of regulatory noncompliance impacted its 
prioritization status or how it could improve its status.
    Finally, IRT's runtime is incompatible with FMCSA's operational 
needs for monthly updates. The FMCSA IRT model takes 4 weeks to run as 
compared to 2 days for SMS. The long runtime would make it difficult to 
make even minor changes to the system.
    Because IRT is overly complex and adopting the IRT model would 
reduce transparency and does not improve overall safety, FMCSA will not 
replace SMS with an IRT model. Instead, as noted in the notice, FMCSA 
is committed to continuously improving SMS to identify motor carriers 
that present the highest crash risk through a transparent and effective 
system. Those improvements include reorganizing the BASICs to better 
identify specific safety problems, combining the 958 violations used in 
SMS in 116 violation groups, simplifying violation and crash severity 
weights, removing percentile jumps that occur when carriers move into a 
new safety event group, and adjusting the intervention thresholds to 
improve SMS.

V. Discussion

    This ANPRM seeks input regarding new methodologies that would 
determine when a motor carrier is not fit to operate CMVs in or 
affecting interstate commerce. The intended effect of this action is to 
more effectively use FMCSA data and resources to identify unfit motor 
carriers and to remove them from the Nation's roadways. A successful 
SFD methodology may: target metrics that are most directly connected to 
safety outcomes; provide for accurate identification of unsafe motor 
carriers; and incentivize the adoption of safety-improving practices.
    Though FMCSA is not making any proposals at this time, the Agency 
is seeking input on several of the topics discussed in the 2016 NPRM.

Questions

    FMCSA specifically requests responses to the following questions:
    1. Should FMCSA retain the current three-tiered rating system of 
Satisfactory, Unsatisfactory, and Conditional? Why or why not?
    A. In the 2016 NPRM, FMCSA proposed replacing the three-tiered 
structure with a single rating of Unfit. Under such a structure, 
carriers that completed safety fitness reviews successfully would 
continue operating and not appear different, in terms of their SFD, 
from carriers that had not yet been reviewed. Would this approach be 
sufficient to ensure safety? Please explain your views.
    B. What are the costs and/or benefits to a motor carrier associated 
with each current possible rating? Please provide data or information 
relating to the costs and/or benefits for motor carriers who are issued 
final ratings for each of the ratings listed below:

 Unsatisfactory rating (Unfit)

[[Page 59494]]

 Conditional rating
 Satisfactory rating

    2. Should FMCSA include additional HM regulatory requirements in 
appendix B to part 385 (Explanation of Safety Rating Process) in the 
SFD calculation?
    3. Currently, the table of regulatory factors in appendix B to part 
385 (at II(C)(b)) excludes parts 172 and 173. However, there are 
violations in these parts included in the list of critical and acute 
violations in appendix B. Should they be included in the SFD 
calculations?
    4. Should motor carriers of passengers be subject to higher 
standards than other motor carriers in terms of safety fitness rating 
methodology? If yes, what should these higher safety standards or 
thresholds be, and why are they appropriate? If no, why not?
    5. Is there a specific aspect of safety management, such as driver 
training, driver fatigue management and mitigation, vehicular 
maintenance and repair, etc., that is so fundamentally different in 
passenger transportation, relative to CMVs transporting property, that 
FMCSA's safety fitness rating methodology should take this aspect into 
special consideration? If yes, what is this specific aspect of safety 
management, and how do you recommend FMCSA handle the matter within its 
safety fitness rating methodology? If no, why are the safety management 
aspects the same?
    6. How will States be affected if the Agency changes the SFD? What 
resources might be needed to accommodate any changes, and how long 
would it take to incorporate any proposed changes?
    7. The current SFD does not use all available safety data, such as 
all inspection-based data. Should the SMS methodology be used to issue 
SFDs, in a manner similar to what was proposed in the 2016 NPRM? If so, 
what adjustments, if any, should be made to that proposal? If not, 
should the Agency include more safety data in the SFD process in other 
ways and, if so, how? The Agency is interested in comments specifically 
on whether the integration of on-road safety data into the SFD process 
would improve the assessment of motor carriers' safety posture and the 
identification of unfit motor carriers.
    8. Given the importance of driver behavior in preventing crashes, 
how would you recommend the Agency incorporate driver behavior data 
into the SFD? What data should the agency use? How should this 
methodology distinguish between data resulting in a conviction and data 
without a conviction?
    9. What changes, additions, or deletions, from the current list of 
critical and acute violations should be included in the NPRM, and why? 
Should the list be retained? Why or why not?
    10. Should SFD consider motor carriers' adoption and use of safety 
technologies in a carrier's rating? How should this fit into the SFD 
methodology?
    11. Should the Agency revise the current administrative review 
procedures in Sec. Sec.  385.15 and 385.17(j) related to administrative 
review and corrective action? Which of those procedures should be 
changed or discarded? Please give the reasons for your views.
    12. Given that unsafe driving behaviors, such as speeding and 
texting while driving, are highly correlated with crash risk, should 
the safety fitness rating methodology give more weight to unsafe 
driving violations of Sec.  392.2? For example, each pattern of 
noncompliance with a critical regulation relative to part 395, Hours of 
Service of Drivers, is assessed double the points in the safety fitness 
rating methodology. Should violations of Sec.  392.2, or a subset of 
those violations, be treated in a similar manner?

Robin Hutcheson,
Administrator.
[FR Doc. 2023-18494 Filed 8-28-23; 8:45 am]
BILLING CODE 4910-EX-P