Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Proposed Rules 59489 

1Enacted by Motor Carrier Safety Act of 1984 

(1984 Act), sec. 215, Public Law 98–554, Title II, 

Continued 

Signed: August 21, 2023. 

Mary G. Ryan, 

Administrator. 

Approved: August 22, 2023. 

Thomas C. West, Jr., 

Deputy Assistant Secretary (Tax Policy). 

[FR Doc. 2023–18590 Filed 8–28–23; 8:45 am] 

BILLING CODE 4810–31–P 

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. 

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, 

SafetyFitnessDetermination@dot.gov. 

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 81⁄2 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 


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98 Stat. 2829, 2844–2845 (Oct. 30, 1984), now 

codified at 49 U.S.C. 31144. 

2Sec. 4009(a) of the Transportation Equity Act for 

the 21st Century (TEA–21), Public Law 105–178, 

112 Stat. 107, 405 (June 12, 1998). 

3Sec. 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). 

4Sec. 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). 

5 49 U.S.C. 31144(a). 

6 49 U.S.C. 31144(b). 

7See 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). 

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). 

12 49 CFR 1.87(a)(5), (f), and (j). 

13 53 FR 50961 (Dec. 19, 1988). 

14Sec. 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). 

16Sec. 15(b), Public Law 101–500, 104 Stat. 1213, 

1218 (Nov. 3, 1990). 

17 108 F.3d 401 (D.C. Cir. 1997). 

18 62 FR 28807 (May 28, 1997). 

19 62 FR 28826 (May 28, 1997). 

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

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

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

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. 

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

The Secretary has delegated the 

authority to carry out all these functions 

to the FMCSA Administrator.12

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. 

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. 

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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20 62 FR 60035 (Nov. 6, 1997). 21 63 FR 62957 (Nov. 10, 1998). 22 166 F.3d 374 (D.C. Cir. 1999). 23Sec. 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). 25 65 FR 11904 (Mar. 7, 2000). 26 72 FR 36760 (July 5, 2007). 27Sec. 4114(a), Public Law 109–59, 119 Stat. 

1144, 1725, codified in amended 49 U.S.C. 31144. 

28This is referred to as the Accident Factor in 49 

CFR part 385 appendix B. Under § 390.5, Accident 

and Crash have the same meaning. 

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.’’ 

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

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

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 § 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-ofservice 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, onroad safety data is used in calculating 

the vehicle and crash factors.28

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

Factor ratings Overall safety 

rating Unsatisfactory Conditional 

0 ................................................................................................. 2 or fewer ................................................................................. Satisfactory. 

0 ................................................................................................. More than 2 .............................................................................. Conditional. 


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29FY 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. 

30This does not include intrastate HM motor 

carriers. https://ai.fmcsa.dot.gov/ 

registrationstatistics/CustomReports, last accessed 

April 26, 2022. 

31https://ai.fmcsa.dot.gov/SafetyProgram/ 

spRptReview.aspx?rpt=RVFR, last accessed April 

26, 2022. 

32Public Law 114–94, div. A, title V, subtitle B, 

part II, 129 Stat. 1538 (Dec. 4, 2015), 49 U.S.C. 

31100 note. 

TABLE 1—CURRENT SFD RATING TABLE—Continued 

Factor ratings Overall safety 

rating Unsatisfactory Conditional 

1 ................................................................................................. 2 or fewer ................................................................................. Conditional. 

1 ................................................................................................. More than 2 .............................................................................. Unsatisfactory. 

2 or more ................................................................................... 0 or more .................................................................................. Unsatisfactory. 

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. 

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. 

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 


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33 (82 FR 14848), March 23, 2017. 

34SMS 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. 

await the completion of the correlation 

study by NAS, and an analysis of any 

corrective actions.33

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/improvingmotor-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. 

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 safetyimproving 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) 


ddrumheller on DSK120RN23PROD with PROPOSALS1
59494 Federal Register / Vol. 88, No. 166 / Tuesday, August 29, 2023 / Proposed Rules 

• 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 §§ 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 § 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 § 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 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Parts 223 and 224 

[Docket No. 230810–0189; RTID 0648– 

XR126] 

Endangered and Threatened Wildlife 

and Plants: Proposed Reclassification 

of Pillar Coral (Dendrogyra cylindrus) 

From Threatened to Endangered 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Proposed rule; request for 

comments. 

SUMMARY: We, NMFS, are issuing a 

proposed rule to change the status of 

pillar coral (Dendrogyra cylindrus) on 

the Federal List of Threatened and 

Endangered Species from threatened to 

endangered as recommended in the 

recent 5-year review of the species 

under the Endangered Species Act 

(ESA) of 1973. We propose this action 

based on population declines and 

susceptibility to a recently emerged 

coral disease. 

DATES: Written comments must be 

received on or before October 30, 2023. 

Public hearings: A public hearing on 

the proposed rule will be held online on 

September 26, 2023, from 1 to 3 p.m. 

Eastern Daylight Time. Members of the 

public can join by internet or phone, 

regardless of location. Instructions for 

joining the hearing are provided under 

ADDRESSES. Requests for additional 

public hearings must be received by 

October 13, 2023. 

ADDRESSES: The public hearing will be 

conducted as a virtual meeting. You 

may join the virtual public hearing 

using a web browser, a mobile app on 

a phone (app installation required), or 

by phone (for audio only) as specified 

on this website: https://

www.fisheries.noaa.gov/species/pillarcoral#conservation-management. 

You may submit comments on the 

proposed rule verbally at the public 

hearing or in writing, by any of the 

following methods: 

• Electronic Submission: Submit all 

electronic public comments via the 

Federal e-Rulemaking Portal. Go to 

www.regulations.gov and enter NOAA– 

NMFS–2023–0002 in the Search box. 

Click on the ‘‘Comment’’ icon, complete 

the required fields, and enter or attach 

your comments; or 

• Email: Submit written comments to 

alison.moulding@noaa.gov. 

Instructions: Comments sent by any 

other method, to any other address or 

individual, or received after the end of 

the comment period, may not be 

considered by NMFS. All comments 

received are a part of the public record 

and will generally be posted for public 

viewing on www.regulations.gov 

without change. All personal identifying 

information (e.g., name, address, etc.), 

confidential business information, or 

otherwise sensitive information 

submitted voluntarily by the sender will 

be publicly accessible. NMFS will 

accept anonymous comments (enter ‘‘N/ 

A’’ in the required fields if you wish to 

remain anonymous). 

FOR FURTHER INFORMATION CONTACT: 

Alison Moulding, 727–551–5607, 

alison.moulding@noaa.gov. 

SUPPLEMENTARY INFORMATION: 

Background 

On September 10, 2014, we published 

a final rule listing pillar coral 

(Dendrogyra cylindrus), along with 4 

other Caribbean coral species and 15 

Indo-Pacific coral species, as threatened 

under the ESA (79 FR 53851). In early 

2021, we announced a 5-year review of 


ddrumheller on DSK120RN23PROD with PROPOSALS1