38788 Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules

See 47 CFR 1.1204(b) for rules

governing permissible ex parte contacts.

For information regarding proper

filing procedures for comments, see 47

CFR 1.415 and 1.420.

List of Subjects in 47 CFR Part 73

Radio broadcasting.

Federal Communications Commission.

John A. Karousos,

Chief, Allocations Branch, Policy and Rules

Division, Mass Media Bureau.

[FR Doc. 98–19300 Filed 7–17–98; 8:45 am]

BILLING CODE 6712–01–F

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Part 385

[FHWA Docket No. FHWA–98–3639]

RIN 2125–AE37

Safety Fitness Procedures

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Advance notice of proposed

rulemaking (ANPRM); request for

comments.

SUMMARY: On November 6, 1997, the

FHWA published a final rule

incorporating the safety fitness rating

methodology (SFRM) into 49 CFR 385 as

appendix B. In that document the

FHWA identified its ultimate goal as

creating a more performance-based

means of determining the fitness of

carriers to conduct commercial motor

vehicle (CMV) operations in interstate

commerce. The final rule announced

that the FHWA would publish an

ANPRM shortly which would request

comments on the future evolution of a

rating system that could be used both in

making safety fitness determinations

and meeting the demands of shippers,

insurers and other present and potential

users interested in evaluating motor

carrier performance. Since the final rule,

legislation was enacted that

substantially heightens the importance

of unsatisfactory ratings. Accordingly, at

this time the FHWA is seeking

comments and supporting data on what

issues should be considered in

constructing a rating system for the

future.

DATES: Comments must be received on

or before September 18, 1998.

ADDRESSES: Submit written, signed

comments to the docket number that

appears in the heading of this document

to the Docket Clerk, U.S. DOT Dockets,

Room PL–401, 400 Seventh Street, SW.,

Washington, DC 20590. All comments

received will be available for

examination at the above address

between 10 a.m. and 5 p.m., e.t.,

Monday through Friday, except Federal

holidays. Those desiring notification of

receipt of comments must include a selfaddressed, stamped envelope or

postcard.

FOR FURTHER INFORMATION CONTACT: Mr.

William C. Hill, Office of Motor Carrier

Research and Standards, (202) 366–

4009, or Mr. Charles Medalen, Office of

the Chief Counsel, (202) 366–1354,

Federal Highway Administration, 400

Seventh Street, SW., Washington, D.C.

20590, Office hours are from 7:45 a.m.

to 4:15 p.m., e.t., Monday through

Friday, except Federal Holidays.

SUPPLEMENTARY INFORMATION:

Electronic Access

Internet users can access all

comments received by the U.S. DOT

Dockets, Room PL–401, by using the

universal resource locator (URL):

http://dms.dot.gov. It is available 24

hours each day, 365 days each year.

Please follow the instructions online for

more information and help.

An electronic copy of this document

may be downloaded using a modem and

suitable communications software from

the Federal Register Electronic Bulletin

Board Service at (202) 512–1661.

Internet users may reach the Federal

Register’s home page at: http://

www.nara.gov/nara/fedreg and the

Government Printing Office’s database

at: http//www.access.gpo.gov/suldocs.

Background

Safety ratings for interstate motor

carriers have been in use by the

Department of Transportation (DOT)

since 1966 when Congress transferred

the responsibility for regulating motor

carrier safety to the Department from the

Interstate Commerce Commission (ICC).

Congress delegated the authority to

regulate qualifications and maximum

hours-of-service of drivers, and the

safety of operations and equipment of

motor carriers in interstate commerce to

the FHWA, an operating administration

of the DOT. Pub. L. 89–670, § 6(f)(3)(B),

Oct. 15, 1966, 80 Stat. 940, repealed and

recodified by Pub. L. 97–449, Jan. 12,

1983, 96 Stat. 2415, 49 U.S.C. 104(c).

Section 215 of the Motor Carrier Safety

Act (MCSA) of 1984 (Pub. L. 98–554, 98

Stat. 2844, 49 U.S.C. 31144) required the

Secretary of Transportation to prescribe

by regulation procedures for

determining the safety fitness of owners

and operators of CMVs in interstate

commerce, including those seeking new

or additional operating authority from

the ICC. It also stated that ‘‘rules

adopted under this section shall

supersede all Federal rules regarding

safety fitness and safety rating of motor

carriers in effect on the date of

enactment of this Act.’’ The final rule

implementing the new safety fitness

procedures mandated by the MCSA of

1984 became effective in 1989 (53 FR

50968, Dec. 19, 1988, 49 CFR Part 385).

The procedures and rating methodology

implementing the 1989 final rule were

recently modified in a rulemaking

concluding in a final rule issued on

November 6, 1997, (62 FR 60035). This

action was necessitated by a ruling of

the U.S. Court of Appeals for the D.C.

Circuit in MST Express et al. v.

Department of Transportation (FHWA),

108 F.3d 401 (D.C. Cir. 1997), to the

effect that the rating methodology had

not been adopted through notice and

comment rulemaking as required by the

Administrative Procedure Act (5 U.S.C.

553).

In the Transportation Efficiency Act

for the 21st Century (TEA–21), Pub. L.

105–178, enacted June 9, 1998, Congress

amended 49 U.S.C. 31144 to prohibit

transportation of any property in

interstate commerce by motor carriers

with unsatisfactory ratings, and

provides such carriers 60 days within

which to improve the rating (extendable

another 60 days) before the prohibition

takes effect. This provision will be

incorporated into the current

regulations in a subsequent rulemaking.

Safety Rating System

A safety fitness rating system was first

used by the FHWA to provide safety

information to the ICC to assist in

screening applicants seeking operating

authority. It evolved into a means to

identify motor carriers most likely to

benefit from on-site compliance reviews

(CRs). Presently, safety ratings are made

available to anyone upon request.

Shippers, including governmental

agencies, use the ratings in making

carrier selections and insurers use them

in making decisions regarding coverage.

Safety ratings are developed in part

through an on-site CR of a motor

carrier’s records, operations and, when

available, equipment. The review is

used to assess whether a commercial

motor carrier’s safety management

controls are functioning effectively to

ensure acceptable compliance with

§ 385.5, safety fitness standard. Safety

rating factors are used in determining a

safety rating. Four rating factors relate to

the regulatory requirements of the

Federal Motor Carrier Safety

Regulations (FMCSRs) (general, driver,

operational, vehicle) and one to the

Hazardous Materials Regulations
Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules 38789

(HMR), if applicable. The carrier’s

accident rate is the remaining factor.

The rating factors are given equal

weight, and one of three safety ratings

can be assigned: satisfactory,

conditional, or unsatisfactory. This

process also identifies motor carriers

needing improvement in their

compliance with the FMCSRs and

HMRs. Motor carriers rated

unsatisfactory generally receive a higher

priority for future compliance and

enforcement efforts.

Statutory Prohibitions

In 1991, following a mandate in the

MCSA of 1990 (Pub. L. 101–500,

§ 15(b)(1), 104 Stat. 1218, 49 U.S.C.

5113), the FHWA promulgated § 385.13

which prohibits motor carriers of

hazardous materials (in quantities

requiring placarding) and passenger

carriers transporting more than 15

passengers including the driver from

operating with an unsatisfactory safety

rating unless the rating is improved

within 45 days.

The prohibition against transportation

of passengers or hazardous materials

was significant because it applied

serious statutory consequences to an

unsatisfactory rating and limited the

motor carrier’s ability to operate in

interstate commerce. With this change,

Congress equated the unsatisfactory

rating with unsafe operations. The

MCSA of 1990 also prohibited Federal

agencies from using motor carriers with

an unsatisfactory rating to transport

hazardous materials in a quantity

requiring placarding or more than 15

passengers.

Section 4009 of the TEA–21 now

gives most carriers found by the FHWA

to be unfit a grace period 60 days. Those

unable to improve their fitness

determination during that period will

have to halt trucking operations on the

61st day. However, passenger and

hazardous materials carriers found to be

unfit remain subject to a 45-day grace

period before shutting down. A rule to

implement TEA–21 will be proposed

later.

In the November 6, 1997, final rule,

the FHWA included an amendment

which gives all motor carriers (not just

those subject to operational

prohibitions) a 45-day grace period

before a less-than-satisfactory rating

takes effect. Under the new procedures,

motor carriers receive a Notice of

Proposed Rating when the rating would

be less than satisfactory. The notice

informs the carrier of the reasons for the

unsatisfactory or conditional rating and

that it will take effect in 45 days. It also

advises the carrier of its procedural

options under Part 385. During the exit

interview at the conclusion of the CR,

the motor carrier also is informed of the

safety violations discovered and is

advised how improvements can be

made.

Other Uses of Ratings

As the safety rating system has

evolved, the assignment of ratings has

taken on new importance to the public,

particularly shippers and insurance

companies. The changing use and

public perception of the ratings provide

the impetus for this rulemaking. Over

time, the reliance on the safety ratings

to make important business decisions

regarding which carriers to use or which

to insure has continued to grow. The

ability of the agency to maintain current

ratings for all motor carriers has not.

Experience over the last eight years

illustrates the impracticality of

attempting to rate all carriers in an

industry with high company turnover.

The motor carrier industry has also

grown at a prodigious rate, especially

since 1980. For example, in 1979, the

year before deregulation, for-hire

carriers holding interstate authority

from the ICC numbered under 20,000.

Today that group, which probably has

the greatest demand for safety fitness

determinations, comprises nearly 80,000

registrants. The OMC census, which

includes private carriers and

compensated carriers previously exempt

from ICC regulation, contains well over

400,000 companies.

Completing on-site rating reviews,

bringing enforcement actions against

high-risk carriers, doing legislatively

mandated complaint investigations

requiring on-site carrier reviews, and

responding to individual requests from

motor carriers that need a satisfactory

rating for business purposes or that

object to the ratings they have received,

all serve to contribute to a high demand

the agency is not able to fulfill with

current resources.

New Demands

The Congress directed the FHWA in

Sec. 4003 of the Intermodal Surface

Transportation Efficiency Act of 1991

(ISTEA), Pub. L. 102–240, 105 Stat.

1914, 2144, to establish information

systems containing safety fitness data,

including roadside inspections and outof-service orders for State commercial

motor vehicle registrants (49 U.S.C.

31106). The Congress further directed

the Department to demonstrate methods

of linking a carrier’s safety fitness to

vehicle registration and to determine the

types of sanctions and limitations which

may be imposed to ensure the safety

fitness of the registrant. That

demonstration project, formerly known

as the Commercial Vehicle Information

System (CVIS), developed a new

methodology to prioritize motor carriers

for on-site reviews and monitor their

safety performance. It is now called the

Performance and Registration

Information System Management

(PRISM). The FHWA is planning to

issue a Notice of Proposed Rulemaking

in the near future which will set forth

mechanisms to encourage carriers to

improve their safety performance and

enhance the FHWA’s ability to focus

resources on poor performers, i.e., those

carriers over-involved in crashes or

presenting the greatest potential for

crashes.

SAFESTAT

The demonstration project also

produced a new safety risk assessment

model, the Motor Carrier Safety Status

Measuring System or SAFESTAT,

which varies significantly from the

current SFRM, because it makes

extensive use of performance data and

assesses carrier performance over time.

A safety rating is static and does not

change, even though actual performance

may improve or decline, until a new CR

is performed. In contrast, SAFESTAT

uses all available safety performance

data to continuously assess the safety

status of carriers and generate a safety

indicator. The indicator is a preliminary

ranking of carriers relative to their peers

and is designed to identify those carriers

presenting potential risks that require

additional attention. In SAFESTAT, the

results of a CR contribute additional

data elements to be considered along

with safety performance data, such as

accident rates, roadside vehicle

inspections, driver performance, and

enforcement actions. Other data

elements, such as driver moving

violations, will be added to the model

as they become more generally

available. SAFESTAT evaluates all data

elements on the basis of severity and

time. For example, more weight is given

to a fatal or serious injury crash than a

tow-away crash and recent crashes are

weighted more heavily than crashes

occurring in the past. The CR remains

as an integral part of SAFESTAT, and is

used to gather safety data that cannot be

obtained at the roadside. SAFESTAT

represents another method of assessing

carrier safety, but at present it is not a

substitute for the current safety fitness

rating process.

Third-party Ratings

Because of the increasing demand for

safety fitness evaluations and the

realization that present resources are not

likely to grow dramatically, the FHWA

is exploring the feasibility of using
38790 Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules

third-party contractors to increase the

pool of safety information available.

This is authorized by Sec. 4006 of TEA–

21. Private rating services could be used

to meet the public demand for

additional safety information upon

which to base business decisions.

Federal resources would be freed up to

pursue corrective measures against

poorly performing carriers.

The U.S. Army’s Military Traffic

Management Command currently uses

third-party services to assess the safety

fitness of motor carriers under contract

to the military. Private services could

operate much like those already

providing consumer credit histories,

significantly increasing the availability

of and access to relevant safety

information. The FHWA and the

industry could join in a partnership to

set the standards for the conduct of

safety fitness reviews, the use of safety

information, and other aspects of such

a system. A large data bank could be

created into which safety information

generated by Federal, State and private

sources would be deposited. So long as

shippers, insurers, and other

stakeholders insisted on making

decisions about the use of motor carriers

based, at least in part, on their safety

records, the demand for such a service

would expand. Motor carriers interested

in marketing their services would

inevitably need to have a good safety

rating to remain competitive. The

FHWA is particularly interested in the

feasibility of such a system.

General Discussion

Since its adoption, the safety rating

process has been the subject of much

confusion, controversy, and dispute.

Although the FHWA had preferred to

use the process as a means of targeting

scarce enforcement and oversight

resources, its use in making value

judgments about the quality of motor

carriers has increasingly been perceived

as a primary function.

In a Notice of Proposed Rulemaking

issued April 29, 1996, (61 FR 18870),

the FHWA discussed the potential for

the unsatisfactory rating to become the

equivalent of a judgment that the motor

carrier is unfit to operate in interstate

commerce and to take on the aspect of

a debarment in fact, if not in law. The

statutory prohibition against the

transportation of passengers or

hazardous materials by a motor carrier

with an unsatisfactory rating is now,

with the enactment of TEA–21, to apply

to all transportation of property. Most

governmental shippers consider the

unsatisfactory rating a disqualifier, and

many other shippers treat it the same

way. This is consistent with the

FHWA’s belief that unsatisfactory

carriers should be well below the

average and that the percentage of

carriers earning such a rating ought to

be small. The unsatisfactory rating has

become and will remain a judgment that

a carrier should discontinue operations

until it can demonstrate a commitment

to maintain adequate safety practices.

That judgment must be correctly

determined and fairly applied. In our

system, a guilty judgment follows the

opportunity to be heard, and the notice

procedure adopted in the November 6,

1997, final rule should afford that

opportunity.

In view of recent developments

regarding the current safety fitness

rating process and methodology and the

obvious limitations on the availability of

resources required to maintain a safety

fitness evaluation process at the level

many in the public and perhaps even

the Congress expect, the FHWA is

asking for comments and suggestions for

changes through the following

questions. In answering the questions, if

possible, please provide any statistical

information or empirical evidence to

support your comments.

General

1. What do you believe should be the

principal ingredients of a rating system?

What kind of a rating system would best

suit your needs? Why?

2. What benefits do you expect to gain

from a rating system? What business

decisions do you presently base on

carrier ratings?

3. Are there differences in the way

ratings should be used? (e.g., by FHWA?

By shippers? By others?).

4. If ratings must impact the

continued operations of rated carriers,

what is the appropriate threshold for

determining that a carrier is

unsatisfactory, meaning ‘‘unfit to

operate’’?

Tiered System

5. Should the FHWA continue to

maintain the three ratings: satisfactory,

conditional, or unsatisfactory? If yes,

what benefits do your perceive in

maintaining the three ratings?

6. What should be the highest tier in

such a system, and what should it

connote?

7. How long should any rating last?

8. Do you see any benefit to a single

rating system by the FHWA which

would be concerned only with

unsatisfactory carriers that would have

to improve or cease operating?

Criteria

9. Should such ratings be determined

entirely by objective (performancebased) criteria? Why?

10. What data elements best reveal the

safety performance of the motor carrier

and should receive consideration in

future safety fitness determinations?

11. How should regulatory

compliance be treated in safety fitness

determinations? Which regulations are

most important in evaluating safety

fitness?

12. How should poor compliance be

reconciled with good safety experience?

Should a motor carrier be rated

unsatisfactory even if it has a low

accident rate?

Data Sources

13. Do you believe there is presently

sufficient data available to make

judgments about a motor carrier’s ability

to stay in business?

14. Should carriers be grouped by

similarity of operations? By size?

Third-party System

15. Are there significant benefits to be

derived from a third-party on-site

review system for evaluating motor

carriers? What do you perceive them to

be?

16. If a third-party review system

were to start up, what should be the

Federal role in such a system?

17. Could and should a private thirdparty review system coexist with a

Federal system? What would be their

respective roles? What relationships

should there be, if any, between

coexisting Federal and private review

systems?

18. What should be the effect of the

third-party rating on the carrier’s

operation? What kind of review

procedures would be required?

19. Should the information from

third-party on-site reviews become a

part of the FHWA data base? How

should such information be treated?

20. Should a third-party reviewer

have direct access to FHWA’s data base

to a greater extent than such information

is presently available to the public?

21. Should there be standards for

third-party reviews, including the

identification of the relevant data

elements to be employed for evaluative

purposes? How should such standards

be developed?

Rulemaking Analyses and Notices

All comments received before the

close of business on the comment

closing date indicated above will be

considered and will be available for

examination in the docket room at the

above address. Comments received after
Federal Register / Vol. 63, No. 138 / Monday, July 20, 1998 / Proposed Rules 38791

the comment closing date will be filed

in the docket and will be considered to

the extent practicable, but the FHWA

may issue an NPRM at any time after the

close of the comment period. In

addition to late comments, the FHWA

will also continue to file, in the docket,

relevant information that becomes

available after the comment closing

date, and interested persons should

continue to examine the docket for new

material.

Executive Order 12866 (Regulatory

Planning and Review) and DOT

Regulatory Policies and Procedures

The FHWA has determined that this

document does not contain a significant

regulatory action under Executive Order

12866. The FHWA does not know what

direction this rulemaking will take,

however, it does not expect that this

rulemaking will be inconsistent with

any other agency actions or materially

alter the budgetary impact of any

entitlements, grants, user fees, or loan

programs. The FHWA anticipates that

the costs of any rulemaking action that

might be implemented in response to

comments received would be no greater

than the motor carrier’s current costs of

complying with the regulatory

requirements. At this preliminary stage,

we do not anticipate that any regulatory

action taken in response to comments

introduced here would be of sufficient

economic magnitude to warrant a full

regulatory evaluation.

Regulatory Flexibility Act

Although this document does not

include any specific proposal at this

time, the FHWA believes this action

will not lead to a proposed rule that

would have a significant economic

impact on a substantial number of small

motor carriers.

To meet the requirements of the

Regulatory Flexibility Act (5 U.S.C.

601–612), however, the FHWA would

evaluate the effects on small entities of

any rule promulgated in subsequent

phases of this proceeding. Therefore, the

agency is particularly interested in

comments from small entities on

whether there are impacts from this

action and how those impacts may be

minimized.

Unfunded Mandates Reform Act of

1995

The FHWA will analyze any proposed

rule to determine whether it would

result in the expenditure by State, local,

and tribal governments, in the aggregate,

or by the private sector, of $100 million

or more in any one year, as required by

the Unfunded Mandates Reform Act of

1995 (2 U.S.C. 1532).

Executive Order 12612 (Federalism

Assessment)

The FHWA will analyze any proposed

rule using the principles and criteria

contained in Executive Order 12612 to

determine whether the proposal would

have sufficient federalism implications

to warrant the preparation of a

federalism assessment. The FHWA does

not expect that any action developed in

response to comments introduced here

would infringe upon the State’s ability

to discharge traditional State

governmental functions because

interstate commerce, which is the

subject of these regulations regarding

interstate operations, has traditionally

been governed by Federal laws.

Executive Order 12372

(Intergovernmental Review)

Catalog of Federal Domestic

Assistance Program Number 20.217,

Motor Carrier Safety. The regulations

implementing Executive Order 12372

regarding intergovernmental

consultation on Federal programs and

activities do not apply to this program.

Paperwork Reduction Act

The FHWA does not anticipate that

any rulemaking action implemented in

subsequent phases of this proceeding

would result in changes in the

collection of information requirements

that are currently approved. The FHWA

does not foresee the likelihood of

increased paperwork burdens because

what is being considered in this action

is an evaluative process to determine, in

part, how regulated motor carriers are

complying with existing regulations.

Should revisions to the safety

assessment and rating system be

proposed in this proceeding, however,

the agency will evaluate carefully the

information collection implications of

such revisions under the Paperwork

Reduction Act of 1995, 44 U.S.C. 3501–

3520.

National Environmental Policy Act

The agency will analyze any action

implemented in subsequent phases of

this proceeding for the purposes of the

National Environmental Policy Act of

1969 (42 U.S.C. 4321–4347) to

determine whether the action would

affect the quality of the environment.

Regulation Identification Number

A regulation identification number

(RIN) is assigned to each regulatory

action listed in the Unified Agenda of

Federal Regulations. The Regulatory

Information Service Center publishes

the Unified Agenda in April and

October of each year. The RIN contained

in the heading of this document can be

used to cross reference this action with

the Unified Agenda.

List of Subjects in 49 CFR Part 385

Highway safety, Highways and roads,

Motor carriers, Motor vehicle safety, and

Safety fitness procedures.

Issued on: July 10, 1998.

Kenneth R. Wykle,

Federal Highway Administrator.

[FR Doc. 98–19294 Filed 7–17–98; 8:45 am]

BILLING CODE 4910–22–P

DEPARTMENT OF TRANSPORTATION

Federal Highway Administration

49 CFR Parts 395 and 396

[FHWA Docket No. FHWA–98–3414]

RIN 2125–AE35

Out-of-Service Criteria

AGENCY: Federal Highway

Administration (FHWA), DOT.

ACTION: Advance notice of proposed

rulemaking (ANPRM); request for

comments.

SUMMARY: The FHWA seeks public

comment concerning use of the ‘‘North

American Uniform Out-of-Service

Criteria’’ (OOS Criteria). During

roadside inspections, Federal, State and

local safety inspectors use the OOS

Criteria as a guide in determining

whether to place commercial motor

vehicles (CMVs) or drivers of CMVs outof-service. The OOS Criteria is a list of

those violations which are so unsafe

that they must be corrected before

operations can resume. Correction of

other less severe violations can be

deferred to a more convenient time and

place. The FHWA is seeking public

comment on the future scope and effect

of the OOS Criteria, which are not part

of the Federal Motor Carrier Safety

Regulations (FMCSRs). The agency is

also seeking comment on the need to

formalize these guidelines.

DATES: Comments should be received on

or before September 18, 1998.

ADDRESSES: Signed, written comments

should refer to the docket number

appearing at the top of this document

and must be submitted to the Docket

Clerk, U.S. DOT Dockets, Room PL–401,

400 Seventh Street, SW., Washington,

DC 20590–0001. All comments received

will be available for examination at the

above address between 10 a.m. and 5

p.m., e.t., Monday through Friday,

except Federal holidays. Those desiring

notification of receipt of comments must

include a self-addressed, stamped

envelope or postcard.